Delhi District Court
Sh. Sheesh Ram vs Sh. Govind Vashisht on 4 February, 2020
IN THE COURT OF MS NEENA BANSAL KRISHNA
DISTRICT & SESSIONS JUDGE
SOUTH EAST : SAKET COURT, NEW DELHI.
RCT ARCT NO. 14/2018
1. SH. SHEESH RAM
2. SH. TEJ PAL
BOTH SONS OF LATE SH. RADHEY LAL
R/O H. NO. 109, HARI NAGAR,
ASHRAM, NEW DELHI110014
... APPELLANTS / TENANTS
VERSUS
SH. GOVIND VASHISHT
S/O SH. D. D. SHARMA
R/O H. NO. 148, HARI NAGAR
ASHRAM, NEW DELHI110014
...RESPONDENT / LANDLORD
Date of filing : 03.05.2018
First date before this court : 04.05.2018
Date of Decision : 04.02.2020
JUDGMENT
1. An appeal under Section 38 of the Delhi Rent Control Act has been filed against the order dated 19.02.2018 vide which the application under Order XII Rule 6 CPC filed by the respondent / landlord has been partially allowed.
RCT ARCT No. 14/2018 Page 1 of 11 pages Sheesh Ram & Anr. Vs. Govind Vashisht
2. The facts in brief are that an eviction petition was filed by the respondent / landlord for seeking possession of the leased premises bearing Shop No. 114 in property No. 115, Hari Nagar Ashram, New Delhi on the ground of 14 (1) (a) DRC Act which is pending adjudication. The respondent had claimed that the appellants were in arrears of rent from 01.09.2005 to 31.08.2006 and they have committed three consecutive defaults and are liable to be evicted. The appellants / tenants have however been regularly tendering the rent which is being avoided by the respondent / landlord. The entire rent had been deposited under Section 27 of the Act which has been allowed by the Court.
3. It is further submitted that the matter is pending trial since 2007 and the respondent has failed to lead any evidence despite opportunities being granted by the Trial court and has intentionally delayed the matter. The respondent herein had filed an application under Order XII Rule 6 CPC claiming that there were some admissions made by the appellant in an eviction petition that had been filed before the court of Shri H. S. Bhalla, learned Additional Rent Controller who had dismissed the same vide judgment dated 27.10.2016. It is claimed that the learned Trial Court while ignoring the facts and law, has passed the impugned order though dismissing the prayer made by the respondent. Vide RCT ARCT No. 14/2018 Page 2 of 11 pages Sheesh Ram & Anr. Vs. Govind Vashisht impugned order, it has been held that the evidence would be required to be led only on the aspect of establishing whether any subsequent default has been committed by the appellant for making timely payment of rent despite availing the benefit of Section 14 (2) of DRC Act.
4. The impugned order has been assailed on the grounds that the Trial Court has failed to take note of the fact that an eviction petition bearing No. E 113/2000 had been compromised between the parties and the same was withdrawn. As per the said compromise between the parties, the rate of rent was enhanced from Rs.40/ to Rs.170/ per month. A new tenancy thus came into existence from July, 2001 but the learned Additional Rent Controller without appreciating the scope or the object of Order XII Rule 6 CPC, has ignored the fact that there was no admission made on the record in regard to non creation of new tenancy w.e.f. July, 2001. The learned Trial Court has failed to consider the observations of Shri H. S. Bhalla, learned Additional Rent Controller in subsequent eviction petition wherein this plea of new tenancy has been accepted. The said finding operates as res judicata.
5. The impugned order is thus, challenged on the ground that on the one hand learned Trial Court has declined to consider the plea of creation of new tenancy w.e.f. July, 2001 and on the other RCT ARCT No. 14/2018 Page 3 of 11 pages Sheesh Ram & Anr. Vs. Govind Vashisht hand has observed that there is an admission on the part of the appellants / tenants that no fresh tenancy has been created as it has not been pleaded in the written statement. It is asserted that because of the observations made in deciding the application under Order XII Rule 6 CPC, learned Trial Court restricted the valuable right of the appellants to crossexamine the respondent / landlord and curtailed them from leading their defence in regard to the creation of fresh tenancy. It is thus, submitted that the impugned order is illegal and liable to be set aside.
6. No formal reply has been filed to the said appeal.
7. I have heard the arguments and have perused the record. My observations are as under :
8. This eviction petition has been filed under Section 14 (1) (a) of the Act against the appellants claiming arrears of rent at the enhanced rate for the period from 01.09.2005 to 31.08.2006 and also for not depositing the deficit amount of Rs.17/ per month for the previous periods. The appellants in their written statement had admitted the relationship of landlordtenant but had asserted that all the arrears of rent have been deposited under Section 27 of DRC Act since the respondent / landlord was avoiding to accept the rent.
RCT ARCT No. 14/2018 Page 4 of 11 pages Sheesh Ram & Anr. Vs. Govind Vashisht
9. An application under Order XII Rule 6 CPC dated 19.05.2017 was moved on behalf of the respondent / landlord before learned Additional Rent Controller wherein it was submitted that relationship of landlordtenant was admitted between the parties. A legal notice dated 05.10.2005 has been duly served upon the appellants / tenants but a frivolous reply dated 23.11.2005 has been sent and the entire rent for the period from 01.09.2005 to 31.08.2006 has not been paid by the appellants / tenants. A prayer was made that no evidence is required and the eviction order may be made against the appellants.
10. A detailed reply had been submitted on behalf of the appellants / tenants wherein it was asserted that the entire rent has been duly tendered or deposited under Section 27 of the DRC Act and the application is without merit and is liable to be dismissed.
11. The learned Additional Rent Controller vide impugned order observed that in order to succeed in the present petition, the landlord had to show admissions by the tenant in regard to the following :
(i) relationship of landlordtenant;
(ii) benefit of Section 14 (2) of DRC Act have been already availed by the tenant; and
(iii) further default on the part of the respondents RCT ARCT No. 14/2018 Page 5 of 11 pages Sheesh Ram & Anr. Vs. Govind Vashisht to pay the arrears of rent for three consecutive months despite due service of legal notice.
12. The learned Additional Rent Controller observed that it was not in dispute that an earlier eviction petition bearing No. E 378/1989 had been allowed under Section 14 (1) (a) of DRC Act and benefit of Section 14 (2) of DRC Act was given. Moreover, from the pleadings, it was evident that the relationship of landlord tenant was admitted. Further, the service of legal notice and the reply to be the same was also admitted. Therefore, it was held on the basis of the admissions the application was partially allowed but evidence was permitted to be led only to the point of ascertaining whether the rent for the subsequent period has been tendered validly or there is any subsequent default on the part of the tenant.
13. The main challenge to the impugned order is that there was a new tenancy created in July 2001, when the earlier eviction petition no. E 113/2000 was compromised and rent was enhanced from Rs.40/ to Rs.170/ per month.
14. First and foremost, the relationship of landlordtenant and the rate of rent as Rs.170/ per month was admitted in the written statement. It is only in the reply to the application under Order XII Rule 6 CPC, the appellants had taken a plea for the first RCT ARCT No. 14/2018 Page 6 of 11 pages Sheesh Ram & Anr. Vs. Govind Vashisht time that in the eviction petition bearing No. E 51/2013 (new No. 5055/2016) filed before Shri H. S. Bhalla, learned Additional Rent Controller, the respondent / landlord had admitted that a fresh tenancy has been created in favour of the tenants in July, 2001 and that the appellants had no concern with the earlier tenancy which was in the name of Late Radhey Lal, their father. It was thus, contended that the earlier eviction petition bearing No. 378/1989 was against the predecessor in interest i.e. Radhey Lal in which benefit of Section 14 (2) was given and the same cannot be read against the appellants on account of new tenancy being created in July, 2001.
15. The learned Additional Rent Controller in his impugned order has rightly observed that in the present written statement, no plea of fresh tenancy w.e.f. July, 2001 had been contended by the appellants and the relationship of landlordtenant was admitted. No person can be allowed to travel beyond their own pleadings. In this context, it may be noted that the trial court record reveals that after the order under Order XII Rule 6 CPC, the appellant realized their admissions made in written statement and moved an amendment application under Order VI Rule 17 CPC to seek amendment in written statement to take a plea of fresh tenancy. The amendment application was dismissed against which an appeal under Section 38 of the Act was filed, which has also been RCT ARCT No. 14/2018 Page 7 of 11 pages Sheesh Ram & Anr. Vs. Govind Vashisht dismissed. There is a clear admission in written statement about the relationship of landlordtenant and learned Additional Rent Controller has correctly observed so in his impugned order.
16. The appellants during the course of arguments on the application under Order XII Rule 6 CPC had placed reliance on the eviction petition bearing No. 51/2013 (New No. 5055/16) which has been dismissed by the court of Shri H. S. Bhalla, learned Additional Rent Controller. In the said eviction petition, appellant Tej Pal in his crossexamination recorded on 06.09.2016 had admitted hat he had succeeded tenancy rights of his father Late Radhey Lal. He also admitted that no property was changed for the purpose of tenancy by virtue of compromise dated 12.03.2001 but the rent amount was enhanced. He further admitted that no fresh tenancy was created in his name. Even in the written statement filed in another eviction petition bearing No. 83/2003, nowhere had the appellants pleaded creation of new tenancy w.e.f. 2001.
17. The learned Additional Rent Controller has thus, rightly referred to the admissions of appellant in other eviction petition to conclude that at no point of time has it been agitated that there was a fresh tenancy w.e.f. July, 2001 and also there are no pleadings to this effect in the present case and the relationship of landlordtenant had been admitted.
RCT ARCT No. 14/2018 Page 8 of 11 pages Sheesh Ram & Anr. Vs. Govind Vashisht
18. It was argued that in the eviction petition bearing No. E 51/2013, the learned Additional Rent Controller Shri H. S. Bhalla has observed as under :
"Therefore, petitioner miserably failed to prove his case. Needless to say that the enhancement alleged vide notice dated 21.04.2003 would also not enure to the benefit of the petitioner as he was failed to plead and prove that the said notice was sent on expiry of 3 years period from the revision of rent to Rs. 170/ from Rs. 40/ pursuant to the alleged compromise".
19. The appellants relying on the above observations, asserted that the issue of fresh tenancy has already been decided in favour of appellants and it operates as res judicata.
20. Relying upon the admissions made by appellant Tej Pal in his crossexamination on 06.09.2016 in eviction petition bearing no. E 5055/2016, the learned Additional Rent Controller in the present case has rightly concluded that the plea of fresh tenancy which was agitated in the subsequent proceedings, has also not been accepted in any of the eviction proceedings nor is there any finding to this effect in eviction petition bearing No. E 5055/2016 as has RCT ARCT No. 14/2018 Page 9 of 11 pages Sheesh Ram & Anr. Vs. Govind Vashisht been claimed by the appellant. The observations relied upon and quoted above, do not give a finding that there was a fresh tenancy and once there is no such finding, the question on it being res judicata does not arise.
21. In this context, one may also refer to the petition under Section 27 of DRC Act for Deposit of Rent dated 22.09.2006 (Ex.PW1/X) whereby rent for the period from 01.09.2005 to 31.08.2006 has been deposited. The petitioners there are Shri Sheesh Ram, Shri Tej Pal and Smt. Jagan Dai; two sons and wife of Late Shri Radhey Lal, respectively. It is quite evident from the Deposit of Rent petition under Section 27 filed by the appellants themselves that there was no fresh tenancy in the name of Shri Sheesh Ram and Shri Tej Pal but a continuation of tenancy originally created in the name of Radhey Lal, father of the appellants and husband of Smt. Jagan Dai. There is not only the admission but also the documents of the appellants themselves clearly showing that there was never ever been any fresh tenancy created in the name of two appellants in July, 2001.
22. The learned Additional Rent Controller has rightly observed that there are clear admissions in regard to the relationship of landlordtenant, service of legal notice and benefit of 14 (2) having already been availed by the appellants. The controversy have RCT ARCT No. 14/2018 Page 10 of 11 pages Sheesh Ram & Anr. Vs. Govind Vashisht been narrowed down only to the aspect of considering whether there has been default in payment of rent for the period mentioned in the petition.
23. This may not technically be an order under Order XII Rule 6 CPC but definitely it is an order where the points on which the evidence is required has been clearly spelled out in order to narrow down the controversy. There is no illegality or question of law brought out in the present appeal and the same is hereby dismissed.
24. A copy of this judgment along with Trial Court Record be sent to the learned trial court. Appeal file be consigned to record room.
Announced in the open court on this 4th day of February 2020 (NEENA BANSAL KRISHNA) District & Sessions Judge South East, Saket Courts New Delhi RCT ARCT No. 14/2018 Page 11 of 11 pages Sheesh Ram & Anr. Vs. Govind Vashisht