Delhi District Court
S/O Sh. Lal Singh vs Sh. Dalip Rai on 13 January, 2016
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In the Court of Ms. Namrita Aggarwal
CCJ cum Additional Rent Controller1(Central)
Tis Hazari Courts, Delhi.
Case No. E71/10
Unique ID No. 02401C0232942010
In the matter of :
Sh. Surjeet Singh
S/o Sh. Lal Singh,
K7, Kolhapur Road,
Kamla Nagar, Delhi110007. ............Petitioner
VERSUS
1. Sh. Dalip Rai
2. Sh. Gulab Rai
Both sons of Smt. Raj Rani,
Ground Floor of property
No. 5771, Gali No. 75, Block No. A,
Ward No. XVI, Rehagarpura,
Karol Bagh, New Delhi. ........Respondents
Page 1 of 15 Surjeet Singh Vs. Dalip & Ors. E. No. 71/10
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APPLICATION FOR EVICTION OF TENANT UNDER SECTION 14 (1) (a), (b), (f) & (j) OF DELHI RENT CONTROL ACT Date of Institution: 02.06.2010 Final arguments heard/case reserved for Judgment: 30.10.2015 Date of Judgment: 13.01.2016 Decision: Petition partly allowed : JUDGMENT :
1. An eviction petition has been filed by the petitioner Sh. Surjeet Singh against the respondents / tenants Sh. Dalip Rai and Sh. Gulab Rai both sons of Smt. Raj Rani for vacation of the tenanted premises, i.e., one shop on the ground floor of property bearing No. 5571/2, Gali No. 75, Rehagar Pura, Karol Bagh, New Delhi, as shown in red colour in site plan annexed alongwith present petition u/s 14 (1) (a), (b), (f) & (j) of Delhi Rent Control Act, 1958 [in short "the Act"].
2. The case of the petitioner is that the petitioner is the owner and landlord of the premises in question and the respondents are tenants under the petitioner at monthly rent of Rs. 175/. That the respondents have not been regularly paying rent due to which legal demand notice was served upon the respondents on 07.06.2006. Since the respondents Page 2 of 15 Surjeet Singh Vs. Dalip & Ors. E. No. 71/10 3 have failed to pay rent w.e.f. 01.02.2006, the said notice was duly served upon the respondents by registered post and UPC. However, despite service of the said legal demand notice, the respondents neither replied to the said notice nor paid / tendered the arrears of rent to the petitioner within two months from the date of service of notice. Further, it is submitted by the petitioner that the respondents had sublet the tenanted premises to Lado Forex Pvt. Ltd which business is being carried on from the said premises. That the respondents have nothing to do with the said business as the said business is carried on by Sh. Harish Chander. It is further submitted by the petitioner that the respondents have damaged the tenanted premises by carrying out unauthorized additions, alteration and changes therein. Even otherwise, the property is very old and has thus, become unsafe and unfit for human habitation. That there are number of cracks in the building which need immediate repairs especially when it is dangerous for the occupants and public. That the petitioner requires the tenanted premises for carrying out the necessary repairs, which cannot be done without the premises being vacated. That the petitioner had also got the premises inspected from Architect Sharma Associates who submitted their report confirming the averment of the petitioner. Further, even after the service of legal demand notice dated 07.06.2006 respondents have deposited rent for the period from 01.02.2006 to 30.07.2009 vide DR No. 206/2009 and thus, no tender was Page 3 of 15 Surjeet Singh Vs. Dalip & Ors. E. No. 71/10 4 made within two months from the date of service of legal demand notice.
On the abovestated grounds, the respondent is liable to be evicted u/s 14 (1) (a), (b), (f) & (j) of the Act.
3. Summons were served upon the respondents. Written statement was filed by the respondents denying all the averments made by the petitioner in the original eviction petition. It is submitted by the respondents that they had never sublet the tenanted premises to Sh. Harish Chander and that Sh. Harish Chander is the real brother of the respondents. Further, as per the respondents, the petitioner always refused to accept the rent by hand as well as by money order due to which a petition for deposit of rent was filed by the respondents. It is submitted that the tenanted premises is in good condition and thus, does not require any work of repair at any point of time. That the petitioner had always made excuse regarding issuance of rent receipts against rent received by him from the respondents and no proper legal demand notice was served upon the respondents. It is further submitted by the respondents that there was an oral agreement between the parties and that no circumstances, respondents would be evicted from the suit property. On the above stated grounds, prayer is made for dismissal of the eviction petition.
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4. Petitioner filed replication to the written statement filed by the respondents wherein he denied all the averments made by the respondents in their written statement.
5. Petitioner himself stepped into the witness box as PW1 and deposed on the lines of petition. Further, he relied upon following documents:
a. Site plan : Mark A b. Legal notice dated 07.06.2006 : Ex. AW1/2 c. Postal receipts : Ex. AW1/2 & Ex. AW1/3 d. AD cards : Ex. AW1/4 & Ex. AW1/5 e. UPC : Ex.AW1/6 f. Photographs of tenanted premises showing business of Lado Forex Pvt. Ltd. : Mark B g. Photographs of tenanted premises showing the extensive damages : Mark C to E h. Inspection report : Mark F i. Copy of DR petition : Mark G j. Notice of DR petition : Mark H K. Copy of order dated 16.04.2010 : Mark I 5.1 PW2 Sh. Ram Singh, Architect who had inspected the suit
property and prepared the report regarding the structural condition of the suit property which is Ex. AW2/1.
5.2 Sh. Suresh Kumar Saini, draftsman who had prepared the site plan has been examined as AW3 and he exhibited his report as Ex. Page 5 of 15 Surjeet Singh Vs. Dalip & Ors. E. No. 71/10 6 AW3/1.
5.3 Sh. R. K. Saini, Sr. Technical Assistant, from the office of Registrar of Companies has been examined as AW4 who had brought the original documents regarding registration of firm of Lado Forex Pvt. Ltd. Further, he relied upon the following documents: a. Photocopy of Form18 : Ex. AW4/1 b. Photocopy of certificate of incorporation : Ex. AW4/2 c. Photocopy of Form 32 : Ex. AW4/3 d. Computrized certified copy with ITR of the year 30.09.2013 : Ex. AW4/4
6. The respondents in their turn examined Sh. Harish Chander, i.e., alleged subtenant as RW1. He deposed on behalf of the respondents on the basis of GPA Ex. RW1/1.
6.1 Sh. S. K. Sharma was called as DW2 who exhibited the license deed dated 22.03.2012 as Ex. DW2/1.
6.2 Sh. Yogesh Ajmani son of late Sh. Dalip Rai deposed as RW2 and relied upon his affidavit Ex. RW2/A whereas Sh. Gulab Rai, i.e., respondent No. 2 has deposed as RW3.
7. I have heard the arguments advanced by Ld. Counsel for the petitioner and Ld. Counsel for the respondents and have also gone through the judicial file carefully.
Page 6 of 15 Surjeet Singh Vs. Dalip & Ors. E. No. 71/10 7 GROUNDS OF EVICTION UNDER SECTION 14(1)(a) OF THE ACT:
8. The cause of action for eviction on the ground of nonpayment of rent u/s 14(1)(a) of the Act consists of the following facts:
(a) relationship of landlord and tenant between the parties;
(b) existence of arrears of rent legally recoverable on the date of notice of demand;
(c) Service of notice of demand in the manner provided u/s 106 of TP Act; and
(d) failure of tenant to pay or tender the whole of the arrears of rent legally recoverable from him within 2 months of the date of service of notice u/s106 of TP Act.
9. In the present case, the respondents have not disputed the ownership of the petitioner over the tenanted premises and existence of landlordtenant relationship. The petitioner has further proved that he had sent legal demand notice dated 07.06.2006 to the respondents for non payment of rent w.e.f. 01.02.2006 Ex. AW1/2 by way of registered AD Ex. AW1/4 and UPC Ex. AW1/6. The respondent has not disputed the receipt of notice. Even otherwise, the said receipt of notice has been duly verified with the postal receipts. It is nowhere averred by the respondents that they had paid or deposited the rent w.e.f. 01.06.2006 within two months from the date of service of legal demand notice. The only averment made by the respondents is that they had deposited rent from Page 7 of 15 Surjeet Singh Vs. Dalip & Ors. E. No. 71/10 8 01.02.2006 to 30.07.2009 by way of DR petition. The said DR petition was filed only in the year 2009 and not within two months from the date of service of legal demand notice. Further, no money order or any other document has been filed by the respondents to substantiate that they had tried to deposit rent with the petitioner alongwith interest for the arrears of rent within two month from the date of service of notice. The respondents have also not disputed the rate of rent or that there was no arrears of rent from 01.02.2006 at the time when legal demand notice was served upon them. For the aforesaid reasons, it is held that petitioner proved all the ingredients of Section 14(1)(a) of the Act and first default of the respondents for nonpayment of arrears of rent has been established on record.
10. During the pendency of the petition, order under Section 15(1) of DRC Act was passed vide order dated 14.07.2011 by which, the respondents were directed to deposit the arrears of rent w.e.f. 01.06.2010 till date @ Rs. 175/ per month alongwith interest @ 15% per month within one month from the date of order in the savings account of the petitioner and thereafter month by month, by 15th of each succeeding month a sum equivalent to the rent at aforesaid rate. GROUNDS OF EVICTION UNDER SECTION 14(1)(b) OF THE ACT: Page 8 of 15 Surjeet Singh Vs. Dalip & Ors. E. No. 71/10 9
11. The cause of action for eviction on the ground of subletting u/s 14(1)(b) of the Act consists of the following facts: a That the alleged subtenant is in exclusive possession, and b That between the tenant and the alleged subtenant, there is a relationship of lessor or lessee.
12. It is averred by the petitioner that the respondents are not in possession of the tenanted premises and they have sublet the same to M/s Lado Forex Pvt. Ltd. The petitioner has also filed the photographs showing that the said business of M/s. Lado Forex Pvt. Ltd. is being carried out from the suit premises which is Mark B. The respondents on the other hand has denied that the premises has been sublet to Sh. Harish Chander / RW1 stating that Sh. Harish Chander is the real brother of the respondents and that the business of M/s Lado Forex Pvt. Ltd. is being carried on by Sh. Harish Chander with the respondents. Further, for the first time, it was alleged by way of affidavit filed by Sh. Harish Chander as the GPA of the respondents that Smt. Bhagwati Devi, i.e., the erstwhile owner had issued a NOC to the respondents on 06.04.2000 stating therein that as Sh. Harish Chander is the real brother of the respondents namely Sh. Dalip Rai and Sh. Gulab Rai therefore she has no objection if he does any work in the tenanted premises. Copy of the said letter is Mark A. Having gone through the evidence led by both the parties, the petitioner in order to substantiate that the tenanted premises Page 9 of 15 Surjeet Singh Vs. Dalip & Ors. E. No. 71/10 10 has been sublet, had examined AW4 Sh. R. K. Saini who had brought with him all the original documents of M/s. Lado Forex Pvt. Ltd., i.e., Form18 Ex. AW4/1, certificate of incorporation is Ex. AW4/2, Form 32 is Ex. AW4/3 and computrized certified copy with ITR of the year 30.09.2013 is Ex. AW4/4 by which the address of the said firm is shown to be that of the tenanted premises. Further, as per certificate of incorporation Ex. AW4/2 and certified copy of ITR for the year 30.09.2013, only Sh. Harish Chander and Ritu Ajmani are shown to be the directors of the said firm M/s. Lado Forex Pvt. Ltd. and the respondents have nothing to do with the said firm M/s. Lado Forex Pvt. Ltd. These documents clearly prove that M/s. Lado Forex Pvt. Ltd is not the company which is being run by the respondents who are original tenants in the tenanted premises. One averment which made by RW1 was that the deceased mother of RW1 Sh. Harish Chander was earlier tenant with respect to premises in question. However, no document such as rent deed or rent receipt has been filed by the respondents to prove that mother of Sh. Harish Chander was in possession of the premises in question or was a tenant with respect to premises in question. It has not been denied by the respondents that M/s Lado Forex Pvt. Ltd. is being carried out from the tenanted premises. Respondent No. 2 in his evidence stated that he is also carrying on his business of leather footwear from the said premises. However, he failed to file any document Page 10 of 15 Surjeet Singh Vs. Dalip & Ors. E. No. 71/10 11 in order to substantiate that the said business of footwear is being carried on from the premises in question. Further, RW2 and RW3 clearly admitted that they have nothing to do with M/s. Lado Forex Pvt. Ltd. That being the case, and having been proved that M/s. Lado Forex Pvt. Ltd. is being carried on from the tenanted premises in which respondents or the LRs have nothing to do clearly shows that the respondents have parted with the possession of the suit premises in favour of M/s. Lado Forex Pvt. Ltd. whose directors are Sh. Harish Chander and Ritu Ajmani. RW1 for the first time, in his evidence by way of affidavit submitted that the previous owner of the premises in question Smt. Bhagwati Devi had issued a NOC in favour of RW1 in the year 2000 allowing Sh. Harish Chander to carry on business from the tenanted premises as he is the real brother of the respondents. However, the said plea of any NOC issued by erstwhile owner in favour of Sh. Harish Chander was never taken by the respondents in his pleadings before leading evidence which shows that this plea is an after thought of the respondent and hence this portion in the affidavit of RW1 is beyond the pleadings or the WS filed by the respondents. Despite that, the respondents have relied upon the document marked as Mark A, but the said document has not been proved by Smt. Bhagwati Devi or any other witness. Further, no cogent reason has been given by the respondents as to why the said NOC was not filed alongwith WS or at any stage prior to leading evidence. Even if it Page 11 of 15 Surjeet Singh Vs. Dalip & Ors. E. No. 71/10 12 is believed that the said alleged NOC was issued by previous landlady Smt. Bhagwati Devi in favour of the respondents then also as per this document, the previous landlady had authorized the respondents to carry on business with Harish Chander from the tenanted premises. However, admittedly the business of M/s. Lado Forex Pvt. Ltd. is being presently carried out by Sh. Harish Chander, Director without any support or involvement of the respondents. Thus, there is no legal validity of the said NOC allegedly issued by previous landlady Smt. Bhagwati Devi. The sale deed executed by previous owner Smt. Bhagwati Devi further clarifies that the respondents were the tenants and Sh. Harish Chander had nothing to do with the premises in question. Hence, it stands duly proved that the respondents have parted with the legal possession of tenanted premises and vested the same with Sh. Harish Chander and thus, they do not hold any legal control over the tenanted premises. For the aforesaid reasons, essential ingredients of Section 14(1)(b) of DRC Act has also been duly proved and the respondents are liable to be evicted from the tenanted premises under Section 14(1)(b) of DRC Act. GROUNDS OF EVICTION UNDER SECTION 14(1)(f) & (j)OF THE ACT:
13. For succeeding in a petition for eviction filed under Section 14 (1)
(f) & (j) of the Act, the petitioner is required to prove:Page 12 of 15 Surjeet Singh Vs. Dalip & Ors. E. No. 71/10 13
(f) 1. that the premises have become unsafe or unfit for human habitation and are required bonafide by the landlord for carrying out repairs which cannot be carried out without the premises being vacated.
(j) 1. that the tenant has, whether before or after the commencement of this Act, caused or permitted to be caused substantial damage to the premises.
14. It is averred by the petitioner that the tenanted premises is in unsafe condition and that the same is required by the petitioner so that necessary repair be carried out since the suit property is very old and is in unfit condition for human habitation. That the petitioner bonafidely requires the tenanted premises for necessary repairs which cannot be carried out without the premises being vacated. The petitioner has filed the inspection report of Sh. P. N. Sharma Ex. AW1/4 in order to prove the dilapidated condition of the tenanted premises. The respondents on the other hand averred that the tenanted premises is in perfect condition and that if the building is unsafe and unfit for the human habitation, why no complaint has been made by the petitioner to the SDM as well as Delhi Police regarding the said damages to the building. Further, it is submitted by the respondents that the petitioner filed the present petition in the year 2010 and after the gap of two years, the petitioner had let out another shop to the another tenant. If the property in question is damaged when why he has given a shop out of the property in question to another tenant Page 13 of 15 Surjeet Singh Vs. Dalip & Ors. E. No. 71/10 14 namely Sh. Vinod Kumar in the year 2012. Had there been any need for vacating the tenanted premises for carrying on necessary repair works, the petitioner would not have let out the said premises to a third tenant after the filing of the present petition. The respondents have filed document,i.e., lease deed in order to prove that the tenanted premises was let out by the petitioner to third tenant after the filing of the present petition. The petitioner on the other hand has relied upon the inspection report Ex. PW2/1 wherein it has been clearly stated that there are major cracks in the building which are required to be repaired and which can be done only if the building is reconstructed. The petitioner has also filed the photographs of the suit property / building where tenanted premises is situated in order to show that there are major cracks in the said building and that building is required for necessary repairs. However the respondents have filed the rent deed executed between the petitioner and some other tenant which clearly shows that even after the filing of the present eviction petition, the petitioner had let out one other shop to third person despite the fact that the petitioner required the suit property to be vacated for the purpose of repairs as there were major cracks in the suit property. Hence, it is clear that petitioner is not taking reasonable steps for repair of the premises having knowledge that the suit property / building requires repair which can be done only if the building is re constructed and had let out other shop to third person. Hence, no ground Page 14 of 15 Surjeet Singh Vs. Dalip & Ors. E. No. 71/10 15 is made out for allowing the petition under Section 14(1(f) & (j) of the Act. No evidence has been filed by the petitioner in order to prove that the respondents themselves have caused some damages to the tenanted premises. Hence, petition filed under Section 14(1)(f) & (j) is dismissed as rejected.
15. In light of findings given above, the eviction petition under Section 14(1) (a) & (b) of the Act is allowed and petition under Section 14(f) & (j) of the Act is dismissed. Accordingly, petitioner would be entitled for recovery of possession of tenanted premises, i.e., one shop on the ground floor of property bearing No. 5771/2, Gali No. 75, Rehagar Pura, Karol Bagh, New Delhi, as shown in red colour in site plan filed alongwith petition, from the respondent subject to the outcome of inquiry under Section 14(2) of the Act.
Announced in open Court (Namrita Aggarwal)
on 13 Day of January, 2016.
th
CCJ cum ARC1 (Central)
[This judgment contains 15 pages.] Tis Hazari Courts, Delhi.
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