Delhi District Court
Shri Virender Kumar Jain vs Shri Swaran Singh on 22 December, 2016
IN THE COURT OF MS. SHUCHI LALER, SENIOR CIVIL JUDGE-
CUM- RENT CONTROLLER (SHAHDARA), KKD COURTS, DELHI
RC/ARC No. 592/16
In the matter of :-
Shri Virender Kumar Jain
S/o Late Shri J. K. Jain
R/o House No. 7/384,
Farsh Bazar, Shahdara,
Delhi- 110032
.... Petitioner
Versus
Shri Swaran Singh
S/o Late Shri Tara Singh,
R/o 7/392-398/1-3,
Farsh Bazar, Shahdara,
Delhi- 110 032.
....Respondent
Date of Institution : 02.11.2010
Date of Arguments : 17.12.2016
Date of Pronouncement : 22.12.2016
APPLICATION FOR EVICTION OF TENANT UNDER SECTION 14
(1) (a) (b) (f) (g) and (j) OF DELHI RENT CONTROL ACT
JUDGMENT :
1. Eviction has been sought in respect of one room situated on ground floor of property bearing H. No. VII/392- RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 1 of 23 398/1/3, Farsh Bazar, Shahdara, Delhi- 110032 (henceforth referred to as 'tenanted premises') under the ground specified in clause (a) (b), (f), (g) and (j) to the proviso of sub section (1) of Section 14 of Delhi Rent Control Act, 1958 (in short DRC Act).
PETITION
2. Brief narration of the facts as disclosed in the petition is as under :-
2.1 That the petitioner is landlord of the tenanted premises and respondent was inducted as a tenant at monthly rent of Rs. 264/-. It is an old tenancy.
2.2 That the respondent is in arrears of rent and has paid rent up to 30.12.2009. The respondent has unauthorizedly constructed more than rooms in the tenanted premises causing substantial damage to the property without the permission of petitioner.
2.3 That petitioner bona fidely requires the tenanted premises for his personal use and the petitioner does not have sufficient accommodation available to him and his family members.
2.4 That petitioner's son is married having two children who requires an independent house for his residence. The petitioner's married daughters alongwith their husband and children frequently visit the petitioner and it causes problem to RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 2 of 23 family members of petitioner's son as they feel that their privacy is being disturbed.
2.5 That the petitioner requires the property in question for the purpose of constructing building as the structure in existence is very old, weak and feeble and may come down at anytime. The premises is unsafe and not conducive for human living and it requires re-building.
2.6 That the petitioner had served notice dt. 04.08.2010 which was replied in negative by the respondent vide reply dt. 03.09.2010.
Being aggrieved, the petitioner has filed the instant eviction petition.
WRITTEN STATEMENT
3. WS has been filed on behalf of respondent wherein preliminary objections such as no cause of action accrued in favour of petitioner; petitioner has concealed material facts; there is no bona fide necessity accruing to the petitioner and present petition has been filed to cause inconvenience to the respondent have been raised. The averments to the contrary are as under:-
3.1 That the respondent has been making regular payment of rent to the petitioner. The respondent tendered rent to the petitioner by money order dated 17.08.2010 vide receipt no.
029423100817008989 for a sum of Rs.2,218 and on 29.09.2010 vide RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 3 of 23 receipt no. 3655 for a sum of Rs.3,960 for the month of October to December, 2010. However, acknowledgement receipt was not received, thus, respondent tendered rent from 01.01.2010 to 30.09.2010 vide money order receipt no. 3600 for Rs.2,376/-, however, the petitioner refused the rent. The respondent was compelled to deposit rent vide DR Petition No. 44/01 dated 11.10.2010.
3.2 That there is no bona fide necessity accruing to the petitioner at any point of time and the petitioner is having sufficient accommodation available with him for providing residential accommodation for himself or his family members dependent on him. 3.3 That the respondent is himself occupying the tenanted premises and has never sub-let or parted the tenanted premises to any other person. No person of the family of the respondent has acquired any alternative accommodation in Delhi. 3.4 That the petitioner intends to engage a builder and has entered into a contract with him to construct multistorey flats over the property in question for which the builder has promised to pay crores of rupees to the petitioner.
3.5 That the petitioner is a businessman and is having various properties in Delhi and his modus opprendi is to file false cases against the tenants so as to get them evicted wrongly. 3.6 That the house of the petitioner is a very spacious house approx. 400 meters constructed up to 2½ floors consisting of seven rooms with attached latrine, bathrooms, kitchens and dining rooms.
Remaining material contents of the eviction petition have been denied and the respondent prayed for dismissal of the present RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 4 of 23 eviction petition with costs.
REPLICATION
4. The petitioner has not preferred to file replication to written statement of the respondent.
PETITIONER'S EVIDENCE
5. In support of his case, the petitioner himself stepped into the witness box as PW1 and tendered his evidence by way of affidavit which is Ex. P-1. PW1 was partly cross-examined by Ld. Counsel for respondent. Thereafter, an application was moved for appointment of petitioner's son Sh. Anubhav Jain as SPA and the said application was allowed by Ld. Predecessor vide order dt. 05.11.2014. It was observed on 21.12.2015 that the evidence of PW1 will not be read in the instant eviction petition.
SPA of petitioner/ his son stepped into the witness box as PW2 and tendered his evidence by way of affidavit which is Ex. PW2/A. He has relied upon the following documents:-
Copy of SPA dt. 21.01.2013 as Ex. PW2/1(OSR); Site Plan as Ex. PW2/2;
Copy of Counter Foil of Rent Receipt as Ex. PW2/3(OSR); Photographs of property alongwith its CD as Ex. PW2/4; Legal Notice dt. 04.08.2010 as Ex. PW2/5;
Postal Receipt dt. 06.08.2010 as Ex. PW2/6;
RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 5 of 23 Reply dt. 12.08.2010 as Ex. PW2/7;
Inspection Report as Ex. PW2/8.
PW2 has been duly cross-examined by Ld. Counsel for respondent. Thereafter, petitioner's evidence was closed.
RESPONDENT'S EVIDENCE
6. In rebuttal, the respondent stepped into the witness box as RW1 and tendered his evidence by way of affidavit which is Ex RW1/1.
RW1 has been cross-examined by Ld. Counsel for petitioner. Thereafter, respondent's evidence was closed.
FINAL ARGUMENTS
7. Rival submissions advanced at bar have been heard and record perused.
JUDICIAL RESOLUTION
8. The present eviction petition has been filed under Section 14 (1) (b) (f) (g) (j) and (a) of Delhi Rent Control Act. The court shall take-up the grounds of eviction under Section 14 (1) (b) (f)
(g) (j) and (a) of DRC Act one-by-one.
RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 6 of 23 SECTION 14 (1) (b)
9. The question which arises for consideration is whether the mischief contemplated under Section 14 (1) (b) of DRC Act has been committed as the tenant has sub-let, assigned or otherwise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord.
10. It is well-settled that the burden of proving sub-letting is on the landlord, but if the landlord proves that the sub-tenant is in exclusive possession of the suit premises, then the onus is shifted upon the tenant to prove that it was not a case of sub-letting. Reliance is placed upon the case titled as "Joginder Singh Sodhi Vs. Amar Kaur 2004 (2) RCR (Rent) 493".
11. In the instant case, there is no evidence that there has been sub-letting, or parting with possession or assignment by the respondent. In para no. 16 of the petition, the petitioner has mentioned that there are no sub tenants in the tenanted premises. The date of sub-letting, the rate of rent at which the tenanted premises has been sub-let and the name of the sub-tenant has not been disclosed. The petitioner has not mentioned whether there has been vesting of possession by the respondent in another person by divesting himself not only of physical possession, but also of the right to possess. In the absence of any evidence on record regarding sub letting, assignment or parting of possession by the respondent and in view of express admission by the petitioner, in para no. 16 of his petition, that there has been no sub-letting, no ground for eviction is made out under Section 14 (1) (b) of DRC Act.
RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 7 of 23 SECTION 14 (1) (f)
12. In order to succeed under this clause, the landlord must prove (1) that the premises have become unsafe or unfit for human habitation, (2) that he bona fide requires the same for carrying out repairs and, (3) that such repairs cannot be carried out without the premises being vacated.
13. The SPA of petitioner / PW-1 has made a bald averment that the tenanted premises is unsafe and not conducive for human living. The petition is silent as regards the other two ingredients of Section 14 (1) (f) i.e. the premises is bona fidely required for carrying out repairs and the repairs cannot be carried out without the premises being vacated. The petitioner has not specified as to what are the nature of repairs which he wishes to carry out at the tenanted premises, thus, the court is unable to contemplate whether such repairs can be carried out without tenanted premises being vacated or not. No sanctioned plan for repairs of the competent authority has been filed on record. Even the petitioner has not disclosed whether he has the sufficient funds at his disposal to carry out the repairs. The petitioner has nowhere pleaded that he has any intention to restore the possession to the respondent after carrying out the repairs in terms of Section 20 DRC Act, rather, it is the case of the petitioner that he requires tenanted premises for residence of his son. As the essential ingredients of Section 14 (1) (f) as well as Section 20 DRC Act have not been pleaded, no eviction order can be passed under Section 14 (1) (f).
Section 14 (1) (g) RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 8 of 23
14. In order to be entitled to an order of eviction u/s 14 (1) (g) DRC Act, the petitioner is required to establish:-
(1) that the premises are required bonafide by the landlord for the purpose of building or rebuilding or addition or alteration; and (2) the court must be satisfied that specified work cannot be carried out without the premises being vacated.
15. To provide further safeguard to the interests of the tenant, Section 14 (8) DRC Act provides that no order for recovery of possession of any premises shall be made under clause (g) unless the Controller is satisfied that the proposed reconstruction will not radically alter the purpose for which the premises were let out or that such radical alteration is in public interest, and that the plans/ estimates of such reconstruction have been properly prepared and further that necessary funds for the purpose are available with the landlord.
16. Section 20 DRC Act provides further protection to the tenant while passing an order under Clause (g), the Controller is required to do three things viz: (1) to ascertain from the tenant whether he elects to be placed in occupation of the premises or part thereof from which he is to be evicted; (2) to record the fact of the eviction in the order, if the tenant so elects; and (3) to specify in the order the date on or before which the tenant shall deliver possession so as to enable the landlord to commence the work of building or rebuilding.
17. In the present case, the petitioner has succeeded in proving that the building is an old construction and there is possibility of it being put to a more comfortable use after its reconstruction. It is RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 9 of 23 not the mandate of Section 14(1)(g) DRC Act that building must be unsafe and require immediate demolition and reconstruction. RW1 has admitted that he is in possession of the tenanted premises for last 50 years. Even in the inspection report Ex. PW2/8, it is mentioned that building was constructed 50 years back and it needs reconstruction. It is not the case of the respondent that any reconstruction of the tenanted premises has been carried out subsequent to creation of tenancy. Thus, the foundation of the building must have been laid nearly 50 years ago. Even the photographs Ex.PW2/4 (colly) depict that the building is old and in dilapidated condition. An increase in accommodation and modernising the plan of building would undoubtedly make the property in question more useful for the petitioner.
18. However, it cannot be lost sight of that the condition of the building can't be held to be an absolute or real test as laid down in Tilak Ram & Others vs. Hakim Hemraj 63 PLR 68, the state of the building is one of the ingredients which may be taken into consideration for finding whether requirement of the landlord was bonafide or not in a particular case. However, the state and condition of the building is not determinative of the issue. The Court has to apply several criteria and has to judge upon the totality of facts.
19. The petitioner has miserably failed to establish the statutory requirement of availability of sufficient funds to carry out the desired reconstruction of the property in question. The entire petition is bereft of an averment that the petitioner has required funds for reconstruction. No proposed site plan of re-construction has been filed on record. It has not been averred that the proposed reconstruction RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 10 of 23 would not alter the purpose for which the tenanted premises was initially let out. The petitioner has nowhere stated as to how and where he would accommodate the tenant / respondent in the rebuilt premises. In the absence of these specific averments or cogent evidence being adduced on record, the ground under Section 14 (1)
(g) is bound to fail.
Section 14 (1) (j)
20. Now, coming to the ground i.e. Section 14 (1) (j) of DRC Act. In a petition for eviction under Clause (j), it has to be firstly determined whether the tenant has caused or permitted to be caused substantial damage to the tenanted premises. It is well-settled proposition of law that every construction or alteration does not impair the value and utility of the building and that the construction must be of material nature which should substantially diminish the value of the building either from commercial and monetary point of view or from utilization aspect of the building.
21. In the instant case, the petitioner has alleged that the respondent has unauthorizedly without his permission constructed more room in the tenanted premises causing substantial damage to the property in question. The respondent has denied carrying out any construction at the tenanted premises.
22. There is no document such as site plan or photographs which could have revealed the extent of construction, if any, is carried out by the respondent at the tenanted premises. Except the self serving ipse dixit in the form of oral evidence of PW-1, there is nothing on record to establish that the construction or addition or alteration has RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 11 of 23 been carried out at the tenanted premises. Even the testimony of PW1 regarding alteration and addition of the tenanted premises is unreliable and of no assistance to petitioner's case. The relevant extract of cross examination of PW-1 in this regard is as under:-
"I do not know as to what was the construction in existence at the property in question when the tenanted premises was let out to the respondent. I know that the respondent has made addition and alteration in the tenanted premises. It is correct that I have not filed any site plan of the property in question of the time when it was let out to the respondent. The site plan which has been filed on record by me does not show the additions or alterations which have been carried out by the respondent at the tenanted premises."
23. A perusal of aforesaid cross examination makes it apparent that the petitioner could not establish the extent of alteration or addition, if any, carried out by the respondent at the tenanted premises. Moreover, there is nothing on record to show that any substantial damage has been caused to the property in question.
24. It is relevant to note that the words are "substantial damage" under Section 14 (1) (j) of DRC Act. Substantial damage is not only to be pleaded, but also to be established by the cogent evidence. No expert witness has been examined by the petitioner to prove that the structural change in the tenanted premises has brought about material impairment in the value and utility of the premises. There is not even a whisper of any damage which must have impaired the value of the tenanted premises. It has also not been specified whether the addition or alteration has tampered with the integrity of the premises or changed the out-lay of the same or any other like reason. Accordingly, no ground is even made out under section 14 (1) (j) of the RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 12 of 23 DRC Act.
SECTION 14 (1) (a)
25. In order to be entitled to an eviction order under clause (a) of sub section 1 of Section 14 of DRC Act, the petitioner is required to prove :
1. Relationship of landlord and tenant
2. Existence of arrears of rent legally recoverable as on date of service of demand notice
3. Service of notice of demand
4. Failure of the tenant to pay/tender the entire legally recoverable arrears of rent within stipulated period of two months from the date of service of demand notice.
26. The relationship of landlord and tenant is not in dispute. The monthly rate of rent being Rs.264/- is also admitted. The service of legal notice dt. 04.08.2010 Ex PW2/5 also stands admitted in as much as the same has been replied by the respondent vide reply dated 03.09.2010 Ex PW2/7. The points for adjudication are (i) the period since when the respondent is in arrears of rent and (ii) whether respondent has complied with the mandate of the legal demand notice.
ARREARS OF RENT
27. First and foremost, the period since when the respondent is in RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 13 of 23 arrears of rent needs to be ascertained. The petitioner has stated that the respondent has paid rent up to 30.12.2009 and, thereafter, he failed to make the payment despite several demands. The respondent has claimed that he has been regularly making payment of the rent to the petitioner. It has been alleged that the respondent had tendered rent by money order 17.08.2010 vide receipt no.
029423100817008989 for a sum of Rs.2,218 and on 29.09.2010 vide receipt no. 3655 for a sum of Rs.3,960 for the month of October to December, 2010 but acknowledgement receipt was not received so respondent was constrained to tender rent from 01.01.2010 to 30.09.2010 vide money order receipt no. 3600 for Rs.2,376/-. However, the petitioner refused to accept the rent so the respondent deposited the same before Ld. ARC vide DR petition no. 43/10 dt. 20.10.2010.
28. In the case titled as Sukhanand Vs. IVth Additional District Judge, Bulendshahar & Ors. 1994 (2) RCR (Rent) 408 it has been held that the onus to show payment of rent lies on the tenant and oral testimony of tenant in regard to the payment of rent claiming discharge of liability in this regard cannot be admitted to be worth reliance at all.
29. Similar view has been reiterated in the case titled as Raghubir Prasad Vs. Rajendra Kumar Gurudev, 1993(2) R.C.R. (Rent) 234, wherein it has been held that on default in payment of rent, the onus to show payment of rent lies on tenant. Further, in the case of Satya Prakash Vs. District Judge Ghaziabad, 1982(1) R.C.R. (Rent) 295, it was observed that if in a petition, tenant alleges that rent is paid, then as per Evidence Act, burden to prove payment lies on the tenant, as he alleges that payment is made.
RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 14 of 23
30. Reference can also be made to the judgment titled as Karamchand Deojee Sanghavi Vs. Tulshiram Kalu Kumawat, 1992(1) RCR 118 wherein the Hon'ble Bombay High Court observed that in a case of eviction on arrears of rent, the onus would always be on tenant to prove that he has paid the rent.
31. Thus, in the instant case, the onus was upon the respondent / tenant to prove that he has made payment of rent regularly and there were no arrears of rent due against him as claimed in the legal demand notice Ex.PW2/5. The respondent/RW1 has deposed that he made payment of rent by way of money order, however, the petitioner refused to accept the same. The questions which have arisen before the court are as under:-
(A) Whether tendering of rent by money order is a valid tender? (B) Whether the respondent was legally required to deposit rent in court under section 27 of Delhi Rent Control Act if the money order was refused?
(A) Whether tendering of rent by money order is a valid tender?
32. Tendering of rent by money order is a valid tender of rent and it has been so held in the judgment titled as Atma Ram Vs. Shakuntla Rani (2005) 7 SCC 211.
(B) Whether the respondent was legally required to deposit rent in court under section 27 of Delhi Rent Control Act if the money order was refused?
33. The next question which arises for consideration is RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 15 of 23 whether due to refusal of rent sent through money order, the respondent was under a legal obligation to deposit the rent under section 27 of Delhi Rent Control Act. Honorable Supreme Court in judgment titled as Sarla Goel Vs Kishan Chand 2009 (7) SCC 658 observed as under:-
"4. The facts are not in dispute. The respondent is a tenant in respect of the suit premises. As noted herein earlier, it is not disputed that the respondent has already availed of the benefit of Section 14(2) read with Section 15 of the Act pursuant to an order dated 3rd of December, 2001 passed by the Additional Rent Controller, Delhi in Eviction Case No. E-105 of 1999. At the present juncture, it may be mentioned that the appellants is now facing the charge of committing second default in payment of rent to the appellants in respect of the suit premises. It is also not in dispute that a demand notice dated 31st of March, 2003 was served by the appellants upon the respondent intimating that the respondent was in arrears of rent for three consecutive months from January, 2003 onwards. It is also not in dispute that on receipt of the said demand notice from the appellants, the respondent had sent the arrears of rent for three months for the period from 1st of January, 2003 to 31st of March, 2003 by a money order dated 22nd of April, 2003. It is also not in dispute that the appellants had refused to accept the money order and consequently, the money was refunded to the respondent. The case made out by the respondent was that he had duly complied with the provisions of the Act which was required to be done by him and therefore, it cannot be held that it was a case of second default whereas the case of the appellants either before the Rent Controller or before the High Court was that on refusal to receive the money order by the appellants, the respondent ought to have taken the recourse of Section 27 of the Act by depositing the aforesaid arrears of rent with the Rent Controller and he not having admittedly done so, was liable to be evicted from the suit premises on the ground of second default under Section 14(1)(a) read with proviso to Section 14(2) of the Act. .......
11. We are unable to accept this submission of the learned counsel for the tenant/respondent for the following reasons :- It is true that in Section 27 of the Act, it has been provided that the tenant may deposit rent when such rent was not accepted or refused or no receipt was granted by the landlord or there was bonafide doubt as to the person or the persons to whom the rent was payable, the tenant may deposit such rent with the Rent Controller in the prescribed manner.
12. Chapter III deals with Control of Eviction of Tenants. Section 14 gives a specific right to the tenants to resist evictions. Sub-
RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 16 of 23 section (2) of Section 14 of the Act provides that no order for recovery of possession of any premises shall be made on the grounds specified in Class A of the proviso to sub-section (1) if the tenant makes payment or deposit the rent as required by Section 15.
13. An overall reading of Chapter III of the Act would clearly show that an additional protection has been given by the Legislature to the tenant who has committed default in payment of rent for which he is liable to be evicted under Section 14(1)(a) of the Act. Section 14(1)(a) of the Act clearly provides that when the tenant has neither paid nor tendered whole of the arrears of the rent legally recoverable from him within two months from the date of which a notice of payment of the arrears of rent has been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882. A plain reading of sub-section (2) of Section 14 makes it clear that a tenant is protected from eviction if he makes payment or deposits the rent as required by Section 15. Section 15 deals with cases when a tenant can get the benefit of protection against eviction.
14. Accordingly, Section 14(1)(a) is a ground for eviction of a tenant for default in payment of rent. In spite of that, protection has been given under Section 15 of the Act to the tenant to avail of the protection given by the Legislature by depositing rent in the manner indicated in Section 15 of the Act. However, proviso to Section 14(2) of the Act takes away the right of a tenant of the benefit of Sub-Section (2) of Section 14 if the tenant having obtained such benefit once in respect of any premises and makes a further default in payment of rent of those premises for three consecutive months. Therefore, it has been made clear that when the tenant makes a second default, no protection can be given to the tenant from eviction.
15. Chapter IV, however, deals with Deposit of Rent. Section 26 of the Act provides that if the rent is paid it is the obligation of the landlord to grant receipt for the rent paid to him. In default of payment of rent within the time specified therein, the tenant is also liable to pay simple interest at the rate of 15% per annum from the date on which such payment of rent is due to the date on which it is paid. The proviso to Section 26(2) of the Act makes it clear that it shall be open to the tenant to remit the rent to his landlord by postal money order. Sub-section (3) of Section 26 also makes the provision that if the landlord or his authorized agent refuses or neglects to deliver to the tenant a receipt referred to in sub-section (2), the Controller may, on an application made to him in this behalf by the tenant within two months from the date of payment and after hearing the landlord or his authorized agent, by order direct the landlord or his authorized agent to pay to the tenant, by way of damages, such sum not exceeding double the amount of rent paid by the tenant and the costs of the application and shall also grant a certificate to the tenant in respect of the rent paid. From a reading of sub-
RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 17 of 23 section (3) of Section 26 of the Act, it is clear that the tenant has been given further protection to get the rent receipt from the landlord and in the event the landlord refuses to grant such receipt, the procedure has been clearly made by the Legislature for the purpose of getting the receipt under the Act and at the same time the landlord can be imposed to pay damages not exceeding double the amount paid by the tenant and the costs of the application and to obtain a certificate from the landlord in respect of the rent paid. Now we come to the most important provision regarding the procedure under the Act to pay or deposit or tender rent to the landlord, if he refuses to grant any receipt in respect of the payment already made to him. As quoted herein earlier, Section 27 deals with deposit of rent by the tenant. It clearly says that where the landlord does not accept any rent tendered by the tenant within the time referred to in Section 26 or refuses or neglects to deliver a receipt referred to therein or where there is a bona fide doubt as the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner. When the words 'bona fide doubt' has been added to Section 27, the tenant may remit such rent to the Controller by postal money order. From a conjoint reading of this provision referred to herein above and particularly Section 27 of the Act, in our view, it cannot be doubted that the procedure having been made by the Legislature how the rent can be deposited if it was refused to have been received or to grant receipt for the same. If that be the position, if such protection has been given to the tenant, the said procedure has to be strictly followed in the matter of taking steps in the event of refusal of the landlord to receive the rent or to grant receipt to the tenant. It is well settled that whether the word 'may' shall be used as 'shall', would depend upon the intention of the Legislature. It is not to be taken that once the word 'may' is used by the Legislature in Section 27 of the Act, would not mean that the intention of the Legislature was only to show that the provisions under Section 27 of the Act was directory but not mandatory.
16. In other words, taking into consideration the object of the Act and the intention of the Legislature and in view of the discussions made herein earlier, we are of the view that the word 'may' occurring in Section 27 of the Act must be construed as a mandatory provision and not a directory provision as the word 'may' , in our view, was used by the Legislature to mean that the procedure given in those provisions must be strictly followed as the special protection has been given to the tenant from eviction. Such a cannon of construction is certainly warranted because otherwise intention of the Legislature would be defeated and the class of landlords, for whom also, the beneficial provisions have been made for recovery of possession from the tenants on certain grounds, will stand deprived of them."
RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 18 of 23
34. From the aforesaid judgment, it is clear that if the landlord refuses to accept rent, then the tenant is required to deposit rent in court under section 27 of Delhi Rent Control Act and in case he does not deposit rent in the court, then he cannot claim protection from eviction under section 14(1)(a) of Delhi Rent Control Act.
35. Thus, in the present case, the respondent had knowledge about the refusal of rent by way of money order and the respondent was required to deposit the rent under Section 27 DRC Act. In compliance of judgment of Sarla Goel (Supra), the respondent has deposited the rent for the period January, 2010 to September, 2010 by way of DR Petition No. 43/10 on 20.10.2010. Had the respondent not been in arrears of rent, he had no reason to deposit the rent by way of DR Petition under Section 27 of DRC Act. The main thrust of argument on behalf of respondent was that PW-2, being SPA, had no personal knowledge so he was not competent to depose in the instant case. The said argument is without any basis as by and large the aspect of payment of rent in the instant eviction petition is based on documentary evidence with oral evidence assuming least significance. Accordingly, the respondent is held to be in arrears of rent w.e.f January, 2010 till July, 2010 (the date of issuance of legal notice Ex.PW2/5 being 04.08.2010, the rent had become due only till July, 2010).
VALID TENDER OF ARREARS OF RENT
36. Another contentious issue is whether within two months of RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 19 of 23 service of notice, the rent has been validly tendered or paid for the period in dispute by the respondent. The respondent has deposited the rent for the month of January, 2010 to September, 2010 at the admitted rate of rent i.e. Rs.264/- by way of DR Petition bearing no. 43/10 under Section 27 DRC Act. In the certified copy of DR petition no. 738/10, in para no. 9, the respondent has mentioned that the last rent w.e.f. January to September 2010 was deposited on 20.10.2010. The demand notice Ex.PW2/5 is dated 04.08.2010 which has been sent through Registered Post on 06.08.2010 as is apparent from the postal receipt Ex.PW2/6. The respondent, in his reply Ex. PW2/7, has claimed that the notice was served on or after 10.08.2010. Thus, the arrears of rent for the period of January, 2010 to July, 2010 which have been deposited on 20.10.2010 are not within stipulated period of two months from the date of service of demand notice Ex.PW2/5.
INTEREST
37. Ld counsel for petitioner vehemently urged that the interest component is missing in the arrears of rent deposited by way of DR Petition. He submitted that as per section 26 of Delhi Rent Control Act, the respondent is liable to pay interest on rent due in case the respondent does not pay rent regularly by the 15th of succeeding month. It was further contended that there has not been valid tender of rent in compliance of demand notice Ex.PW2/5 as the respondent was under a statutory obligation to tender interest along with rent, which he failed to deposit.
38. Ld. Counsel for the respondent argued that respondent RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 20 of 23 was not obliged to tender interest with rent in view of judgment titled as Arun Kumar Gupta Vs Rakesh Sood 187(2012) DLT 267.
39. The court has gone through the said judgment and relevant extract of the said judgment is as under:-
"7.Record has been perused. Record shows that in the legal notice there has been no demand of interest; the legal notice has made a demand of rent for three months to be paid within two months without detailing any dates. It is an admitted fact that within one week of the receipt of the legal notice Rs. 8,400/- was tendered by way of the aforenoted cheque which was at the admitted rate of rent for a period of 14 years although contention of the tenant is that the legally recoverable rent is only three years preceding the filing of the eviction petition. That apart, since there was no demand for the rent to be paid alongwith interest, the judgment of Raghbir Singh (supra) would not be applicable. In the case of Raghbir Singh (supra) the legal notice had specifically made a demand of arrears of rent specifying details of the arrears of rent alongwith interest to be paid under Section 26 of DRCA which had not been tendered......." (emphasis supplied)
40. In the case of Arun Kumar Gupta (Supra), the interest was not demanded in the legal notice, however, in the present case the interest at the rate of 24% per annum has been specifically demanded on page 4 of the legal notice dated 04.08.2010 Ex.PW1/5. Hence, the judgment of Arun Kumar Gupta (Supra) is not applicable to the facts of the present case.
41. Rather, the judgment of Honorable Delhi High Court reported in 2009 (109) DRJ 19 titled as Raghbir Singh vs. Sheela Wanti & Anr applies squarely to the facts of the present case, thus, the respondent was under an obligation to tender interest on rent along with rent, which the respondent has failed to tender.
42. In view of the above discussion, the court is of the opinion that despite the service of the legal demand notice the respondent has RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 21 of 23 neither paid nor tendered the entire arrears of legally recoverable rent.
43. Before parting, it is pertinent to mention that a dispute has been raised regarding spatial extent of tenancy. The petitioner, in para no. 8 of the petition, has described tenanted portion as one room, whereas, in the site plan Ex. PW2/2, the tenanted premises has been shown as one room and kitchen. The respondent, in his cross examination, admitted that the tenanted premises comprises of one room and one kitchen. Thus, it is held that the tenanted portion comprises of one room and kitchen.
CONCLUSION
44. Keeping in view the foregoing reasons and discussion, the present eviction petition stands dismissed under Section 14 (1) (b)
(f) (g) & (j) OF DRC Act, however, the petitioner has successfully established the ground under Section 14 (1) (a) DRC Act. As per the provisions of DRC Act, in case a tenant is evicted for non-payment of rent U/s 14 (1) (a) DRC Act, he has to be given a chance for payment of arrears of rent so as to enable him to avail the benefit U/s 14 (2) DRC Act.
45. Therefore, as per the provisions of Section 15(1) DRC Act, the respondent is directed to pay arrears of rent @ Rs.264/- per month w.e.f. 01.01.2010 till date along with interest @ 15% per annum as per section 26 of the DRC Act within a period of one month from today after adjusting the rent which has already been deposited / paid in the Court. The respondent shall continue to make payment of future rent by 15th of each succeeding month.
RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 22 of 23
46. The main file be consigned to Record Room and Ahlmad is directed to maintain a separate miscellaneous file for the purpose of consideration of benefit U/s 14 (2) DRC Act. Put up on 06.03.2017 for consideration of benefit U/s 14 (2) DRC Act. Copy of this judgment be also kept in the separate miscellaneous file. Nazir is also directed to file his report regarding deposit of rent.
Announced in the open court (Shuchi Laler)
Dated 22.12.2016 SCJ/RC (Shahdara)
Karkardooma Courts, Delhi
RC/ARC No. : 592/16 Virender Kumar Jain Vs. Swaran Singh Page No. 23 of 23