Delhi District Court
Sh. Rajendern Singh Tanwar vs Bhagwan Singh on 19 November, 2014
IN THE COURT OF NAVEEN K. KASHYAP,
COMMERCIAL CIVIL JUDGE-CUM-ADDITIONAL RENT
CONTROLLER (WEST), TIS HAZARI COURTS, DELHI.
E. No: 74/2008
Date of Institution : 27/03/2008
Date of order : 19/11/2014
(This is more than 05 years old matter.)
1. SH. RAJENDERN SINGH TANWAR
S/O LATE SH. RAGHUNATH SINGH
2. CHANDER WATI
W/O LATE SH. RAGHUNATH SINGH
BOTH R/O WZ-19, TATARPUR, DELHI
.......Petitioner
VERSUS
1. BHAGWAN SINGH
WZ-18, TATARPUR, NEW DELHI-27
ALSO AT:
FB-10, SECOND FLOOR,
TAGORE GARDEN, NEW DELHI ........Respondent
2. CHANDERPAL
S/O LATE SH. RAGHUNATH SINGH
R/O WZ-19, TATARPUR, DELHI.
.......Performa Respondent
JUDGMENT
1. Vide this judgment the court shall dispose of petition under section u/s 14(1)(a) r/w section 14(2) of DRC Act filed on the basis of "second default".
2. By filing the present petition, applicant/petitioner is seeking eviction of respondent in respect of a shop measuring approximately 20X10 ft. having private shop No-3 situated on the ground floor of E. No. 74/2008 Sh.Rajinder Singh Tanwar & Another Vs. Sh. Bhagwan Singh Page 1 of 20 property no. WZ-18, Tatarpur, New Delhi-27, depicted in red colour in the site plan (hereinafter referred to as tenanted premises) under section 14(1)(a) of DRC Act. The brief facts as narrated in the petition are:-
2.1. That petitioner is the landlord in respect of tenanted premises.
Initially, respondent was inducted as a tenant in the tenanted premises by late Sh. Raghunath Singh i.e the father and husband of petitioner no. 1 and 2 respectively. It is further stated that respondent no.2 Chander Pal is another son of late Sh. Raghunath Singh. As such he is also made a performa respondent no. 2.
2.2. That the rate of rent is Rs. 708/- per month. It is further stated that respondent is running a jewellery shop in the tenanted premises. It is further stated that earlier landlord/owner Late Raghunath Singh filed an eviction petition U/Sec. 14(1)(a) of D.R.C Act and same was allowed against the respondent by Ld. ARC Delhi vide judgment/order dated 28.07.2000. A copy of the same is annexed with the present petition.
2.3. That the respondent has defaulted in payment of rent at the rate of Rs. 644.16p per month from 1st April 2006 to 30.11.2006 totaling Rs. 5153.28p and from 1st December 2006 to 29.02.2008 at the rate of Rs. 708/- per month totaling Rs. 10,628.70p. As such it is stated that a total sum of Rs. 15,781.98p is in arrears of rent. It is further stated that last rent receipt for the month of March 2006 is annexed with the petition.
2.4. That respondent has again become defaulter for the second time, therefore, he is not entitled to any benefit under Sec. 14(2) D.R.C. Act and consequently, petitioner is entitled for eviction decree and also recovery of possession of the tenanted premises.
E. No. 74/2008 Sh.Rajinder Singh Tanwar & Another Vs. Sh. Bhagwan Singh Page 2 of 202.5. That even a notice dated 27.6.2007 was sent to the respondent by Late Raghunath Singh i.e. father and husband of petitioner no. 1 and 2 respectively through counsel by way of registered post on 28.06.2007 and UPC on 29.06.2007 and the same was duly served upon the respondent. But such notice was neither replied nor complied by the respondent till date of filing the present petition. Further a copy of such legal notice along with proof of sending the same is also placed on record.
3. The respondent no. 1 filed Written Statement on 30.01.2009 to the present eviction petition. In such W.S. it is stated that present petition is without cause of action as respondent has remitted the arrears of rent @ Rs. 644.16p per month w.e.f. 01/04/2006 to 31/05/2007 totaling Rs. 9,260. It is further stated that every month w.e.f. 01/04/2006 onwards respondent has been tendering the rent in person but late Sh. Raghunath Singh refused to receive the same or to issue any rent receipt to the respondent. As such left with no option, respondent remitted the rent by way of money order for such period from 01/04/2006 to 31/05/2007 at the rate of Rs. 644.16p. per month, total being Rs. 9,260/- vide money order receipt no. A- 936 for a sum of Rs. 5,000/- dated 27/06/2007 and money order no. A- 937 for a sum of Rs. 4,260/-, both money orders dated 27/062007 but late Sh. Raghunath Singh refused to accept the same. As such petitioner cannot be allowed to take benefit of his own wrongs.
It is further stated that the respondent never received any legal demand notice dated 27/06/2007 nor any such notice sent by the petitioners before filing the present petition.
But, in reply to para no. 1 to 7 of petition it is stated that same are matter of record. Meaning thereby the landlord tenant E. No. 74/2008 Sh.Rajinder Singh Tanwar & Another Vs. Sh. Bhagwan Singh Page 3 of 20 relationship is not denied by the respondent nor the suit property's identity is denied by the respondent side.
But the respondent denied that any opportunity was earlier granted to the respondent U/s 14 (2) of DRC Act.
4. Replication dated 23/11/2009 was filed by petitioner to the W.S. of respondent no. 1 and in such replication, the petitioner denied the stand taken by the respondent and reiterated the contentions of the petition. It is further stated by the petitioner that last rent receipt issued for tenancy in question was for the month of March 2006. It is further stated that even for the sake of arguments even if it is presumed that late Sh. Raghunath Singh refused to accept the rent sent through money order, still why the respondent did not deposit the rent in court at prescribed in DRC Act.
5. Further, W.S. was also filed by respondent no.2/Chander Pal, who supported the case of the petitioner.
6. Evidence was produced by petitioners as well as by respondent no. 1. The petitioner no. 1, Sh. Rajinder Singh Tanwar examined himself as PW-1. He deposed on the line of the main petition. He further proved petitioners' site plan as PW-1/1. He further relied on the photo copy of earlier judgment U/s 14(1) (a) dated 28/07/2000 as Mark- A. Further, he proved the counter foil of rent receipt of March 2006 as PW-1/3. He further proved the copy of legal demand notice dated 27/06/2007 as Ex. PW-1/4. He further proved the postal receipt regarding sending the same as Ex. PW-1/5 and UPC receipt as Ex. PW-1/6. Further, copy of death certificate of late Sh. Raghunath E. No. 74/2008 Sh.Rajinder Singh Tanwar & Another Vs. Sh. Bhagwan Singh Page 4 of 20 Singh was relied as Mark -B. PW-1 was cross examined by the respondent side.
Further, one Sh. Ravinder Kumar, LDC/ Civil, Tis Hazari Court, Delhi was also summoned as a witness by petitioner and he was examined as PW-2. He deposed that as per Goshwara register, Goshwara no. 266/RC, Eviction Petition no. 106/98 titled "Raghunath Singh Vs. Bhagwan Singh" decided on 31/08/2000, has already been destroyed and as such not available in record room.
7. Respondent examined himself as DW-1. He deposed on the line of defence taken in the reply/WS to the main petition. Further, he proved the receipts of the money order refused by the petitioner as Ex. Dx(Colly). DW-1 was cross examined by petitioner side at length. No other witness was examined on behalf of respondent No. 1.
8. Arguments were heard in detail and record perused. Further, I have gone to the case law relied and written arguments submitted by the parties.
9. To prove the case under section 14(1)(a) r/w 14(2) of DRC Act for "2nd default", the petitioner is required to prove the following ingredients:-
(I) That there is relationship of landlord and tenant between the parties;
(II) Rate of rent;
(III) That there were arrears of legally recoverable rent at the time of issuance of legal demand notice;
(IV) That a valid legal demand notice was duly served E. No. 74/2008 Sh.Rajinder Singh Tanwar & Another Vs. Sh. Bhagwan Singh Page 5 of 20 upon the respondent No. 1;
(V) That the respondent No. 1 has neither paid nor tendered the entire arrears of legally recoverable rent within two months of date of receipt of legal demand notice.
(VI) Respondent no. 1 already obtained benefit U/Sec.
14(2) D.R.C. Act.
10. The ingredients are taken up for consideration one by one :-
I). Relationship As Landlord and tenant :
11. The Relationship of landlord and tenant between the parties is not denied by the respondent/tenant. The respondent no. 1, during his cross examination, as also argued by Ld. Counsel for Petitioner, admitted that Late Sh. Raghunath has inducted him as a tenant in the premises in question through an oral agreement.
Further, it is the case of petitioner, which is not disputed by the respondent side, that original landlord Late Sh. Raghunath Singh has died intestate leaving behind petitioners and respondent no. 2 i.e son, wife and younger son respectively as his legal heirs.
In fact, this is second round of litigation between the parties. The first round of litigation culminated into a final judgment dated 28/07/2000 on an eviction petition U/Sec. 14(1)(a) of D.R.C Act filed by Late Sh. Raghunath Singh against the same respondent no-1.
Hence, clearly the petitioners have established the relationship of landlord and tenant between petitioners and respondent no. 1 qua the premises in question.
E. No. 74/2008 Sh.Rajinder Singh Tanwar & Another Vs. Sh. Bhagwan Singh Page 6 of 20II). Rate of Rent:
12. The rate of rent is vehemently disputed by the respondent. As per the case of petitioner, the respondent has defaulted in payment of rent at the rate of Rs. 644.16p per month from 1 st April 2006 to 30.11.2006 totaling Rs. 5,153.28p and from 1st December 2006 to 29.02.2008 at the rate of Rs. 708/- per month totaling Rs. 10,628.70p. As such it is stated that a total sum of Rs. 15,781.98p is in arrears of rent. It is further stated that last rent receipt for the month of March 2006 is annexed with the petition.
13. But on the other hand, it is deposed by the respondent no. 1 that rent of the tenanted premises was @ Rs. 644.16p p.m. w.e.f. 01/04/2006 and there is no enhancement of the same. It is further stated that as such rent @ Rs. 644.16p w.e.f. 01/04/2006 till 31/05/2007 @ Rs. 644.16p per month totaling Rs. 9,260/- already tendered by money order.
14. On a combined reading of evidence on record, it is clear that there is no dispute regarding rate of rent upto 30/11/2006 as both sides stated same @ Rs. 644.16p.
15. But w.e.f. 01/12/2006 enhanced rent @ Rs. 708/- per month is claimed by the petitioner side, whereas the respondent claimed that rate of rent continued to be @ Rs. 644.16p. Under these facts and circumstances, it was the duty of the petitioners to prove that same was subsequently increased. Still, as also rightly pointed out by the respondent side no written notice as per section 6A r/w 8 of DRC Act, is placed or proved on record. The only notice available on record is the legal demand notice dated 27/06/2007 Ex. PW-1/4, in which the increased rate of rent E. No. 74/2008 Sh.Rajinder Singh Tanwar & Another Vs. Sh. Bhagwan Singh Page 7 of 20 and its period is also mentioned. Therefore, in any case, the enhanced rent is not due and payable before thirty days from the date of giving such notice. Therefore, the enhanced rate of rent cannot be claimed before 28/07/2007. Whereas the petitioner still claimed the same w.e.f. 01/12/2006, as such the same is not tenable.
16. As such it is held that rate of rent was Rs. 644.16p per month upto 27/07/2007 and thereafter only it stood enhanced @ Rs. 708/- per month.
III). Arrears Of Rent:
17. The question before the court is whether the respondent was in arrears of rent on the date of notice dated 27/06/2007 Ex. PW-1/4 in question.
18. It is the case of the petitioner that the respondent had defaulted in payment of rent and failed to pay rent for more than three consecutive months at the time of issuance and service of such legal notice Ex. P1/4.
19. In reply to the contention raised by the petitioner, the respondent denied that he has ever defaulted in payment of rent.
20. It is settled law that when the petitioner alleges non- payment of rent under section 14(1)(a) of DRC Act, the onus lies upon the respondent/tenant to prove that he has paid the rent. It has been held in "Sukhanand Vs. IVth Additional District Judge, Bulendshahar & ors." [1994(2) AIRCJ 27] that the onus E. No. 74/2008 Sh.Rajinder Singh Tanwar & Another Vs. Sh. Bhagwan Singh Page 8 of 20 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. It is also held in "Raghubir Prasad Vs. Rajendra Kumar Gurudev", 1993(2) R.C.R. (Rent) 234] that on default in payment of rent the onus to show payment of rent lies on tenant.
21. It is held by the Hon'ble Supreme Court of India in "Karamchand Deojee Sanghavi Vs. Tulshiram Kalu Kumawat", [1992(1) RCR 118] 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.
22. Thus, the onus was upon the respondent to prove that he had made upto date payment of rent and that there was no arrears of rent in any case for three consecutive months due against him as otherwise claimed in the legal demand notice Ex. PW-1/4 dated 27/06/2007.
23. The respondent no. 1 can prove the said fact either through oral or documentary evidence.
But, it is claimed by respondent no. 1 that he timely tried to pay the rent by tendering to late Sh. Raghunath Singh @ Rs 644.16p p.m and even sent the rent through money order, when he refused to accept the same in person. Further, it is admitted by the present petitioner no. 1, PW-1 during his cross examination that respondent had sent the rent by money orders totaling Rs. 9,260/- for the period w.e.f. 0104/2006 to 31/05/2007 @ Rs. 644.16p per month. But, PW-1 further explained that his late father Sh. Raghunath Singh refused to accept the same as E. No. 74/2008 Sh.Rajinder Singh Tanwar & Another Vs. Sh. Bhagwan Singh Page 9 of 20 the same was not full rent.
24. Further, in any case, in terms of section 26(1) DRC Act, rent has to be paid by the respondent no. 1/tenant within the time fixed by contract between the parties or in absence of such contract, by the 15th day of the month next following the month for which it is payable.
25. Now in present case, from a reading of evidence of parties it is clear that rent was payable monthly. Further, even if it is presumed that there was no agreement between the parties in this regard, then as per section 26(1) of DRC Act, the rent was to be paid by respondent no. 1 by the 15th day of the month next following the month for which it is payable. Still as far as rent for the month starting from April, 2006 till April, 2007 (which are much more then 03 consecutive months) is concerned, as per the case of the respondent also same was sent through money orders dated 27/06/2007 only. As such rent for these 13 months was sought to be paid much beyond the period mentioned in section 26(1) of DRC Act.
26. Thus, there were arrears of rent at the time of issuance of legal notice as well as filing of present petition.
IV). That a valid legal demand notice was duly served upon the respondent:
27. The court is required to decide whether the legal notice Ex. PW-1/4 dated 27/06/2007 was served upon the respondent no-1 or not as it is the service of this notice that gives rise to cause of E. No. 74/2008 Sh.Rajinder Singh Tanwar & Another Vs. Sh. Bhagwan Singh Page 10 of 20 action for filling of the present petition.
28. There is a presumption of service as per Section 114 of Evidence Act and Section 27 of General Clauses Act as the Legal Notice was sent through registered post and UPC.
29. In K. Bhaskaran v. Sankaran Vaidhyan Balan, (SC) [1999 A.I.R. (SC) 3762 ] it was observed by Honorable Apex Court that the principle incorporated in Section 27 can profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. It was further observed that when a notice is returned by the sendee as unclaimed such date would be the commencing date in reckoning relevant period.
30. The said judgment was relied upon by Full Bench of Honorable Apex Court in C.C. Alavi Haji v. Palapetty Muhammed, (SC)[2007(6) S.C.C. 555] and it was observed that when a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed.
31. In present case, it is deposed by the petitioner no-1/ PW-1 that legal demand notice dated 27/06/2007 ,Ex. PW-1/4, was sent to the respondent through UPS dated 29/06/2007 as well as by registered AD dated 28/06/2007.
E. No. 74/2008 Sh.Rajinder Singh Tanwar & Another Vs. Sh. Bhagwan Singh Page 11 of 2032. On the other hand, the respondent denied the receipt of such legal demand notice Ex PW-1/4.
33. But, as also argued by petitioners side, the respondent no-1 during his cross examination, admitted that the address of his shop is Shop No. 3, WZ-18, Titar Pur, Delhi and further that Ex. PW-1/4/legal notice bears the correct address of his such shop at point B. He further admitted that the address mentioned on the Ex. PW-1/6/UPC is correct address of tenanted shop in question. He further admitted that Ex. PW-1/1 is the correct site plan of the premises in question.
34. Thus, it can be safely concluded that service of legal demand notice Ex. PW-1/4 stands proved as per Section 114 of Evidence Act and Section 27 of General Clauses Act as the same was sent through registered post and UPC. Further, because in order to rebut the presumption under section 114 of Indian Evidence Act and section 27 of General Clauses Act, the respondent failed to lead any evidence or extract anything his favor even in the cross examination of PW-1.
35. As such in view of above mentioned position of law coupled with facts and circumstances of present case and evidence on record it is presumed that notice send through registered post and and UPC were duly served upon the respondent as the same were sent to the correct address of tenanted premises as per evidence on record.
V). That despite the service of the legal demand notice the respondent has neither paid nor tendered the entire arrears of legally recoverable rent:
E. No. 74/2008 Sh.Rajinder Singh Tanwar & Another Vs. Sh. Bhagwan Singh Page 12 of 2036. At this stage, another important issue in the facts and circumstances of present case is that whether the respondent was legally required to deposit rent in court under section 27 of Delhi Rent Control Act if the petitioner refused to accept the rent.
37. At this stage, it is pertinent to refer to the judgment of Honorable Supreme Court in judgment titled "Sarla Goel Vs Kishan Chand"[2009 (7) SCC 658].
The facts of the said case are 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) E. No. 74/2008 Sh.Rajinder Singh Tanwar & Another Vs. Sh. Bhagwan Singh Page 13 of 20 of the Act. ..."
38. The Apex Court finally observed as under:-
"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- 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 E. No. 74/2008 Sh.Rajinder Singh Tanwar & Another Vs. Sh. Bhagwan Singh Page 14 of 20 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-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 E. No. 74/2008 Sh.Rajinder Singh Tanwar & Another Vs. Sh. Bhagwan Singh Page 15 of 20 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."
39. Further the Hon'ble Supreme Court in Atma Ram Vs. Shakuntala Rani(, AIR 2005 SC 3753)held that court has consistently taken views that in Rent Control Legislations if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so he cannot take advantage of the benefit conferred by such a provision.
40. Furthermore, in Jai Kishan Versus Kamleshwar Nath E. No. 74/2008 Sh.Rajinder Singh Tanwar & Another Vs. Sh. Bhagwan Singh Page 16 of 20 Arora, 2013(2) CLJ 77 Del., wherein judgment passed by the Hon'ble Supreme Court of India in case of Sarla Goel and Ors Versus Kishan Chand, (2009) 7 SCC 658 was relied upon, the Hon'ble Delhi High Court, held that on refusal of the landlord to accept the rent tendered through money order, it was incumbent upon the tenant to have deposited the rent before the Rent Controller as prescribed under section 27 of the Delhi Rent Control Act and the tenant having failed to deposit rent under section 27 of D.R.C. Act and, committed second default, is not entitled to protection under section 14(2) of the Act.
41. 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 that he is protected from eviction under section 14(1)(a) of Delhi Rent Control Act because he has tendered rent to the landlord and that the landlord refused to accept the rent.
42. Thus, the court is of the opinion that even if the stand of the respondent (that petitioner refused to accept the rent when he personally tried to pay the same to the petitioner side or send the same through money order) is accepted, still the respondent was under a legal obligation to deposit rent in court under section 27 of Delhi Rent Control Act. In present petition the respondent no.1, during his cross examination admitted that after March, 2006 till date of filing of present petition he has not deposited the rent in the court. As such the respondent failed to discharge the said obligation as per the evidence on record.
E. No. 74/2008 Sh.Rajinder Singh Tanwar & Another Vs. Sh. Bhagwan Singh Page 17 of 2043. In view of the above discussion, the court is of the opinion that despite the service of the legal demand notice the respondent has defaulted in making payment of rent for the tenanted premises in question for more than three consecutive months.
44. From the above said discussion, it is clear that the petitioner has proved all the ingredients of Section 14(1)(a) of DRC Act. As such the respondent no. 1 is held to be a defaulter within the meaning of Section 14(1)(a) of DRC Act.
45. At this stage, it is further pertinent to note that section 14 (2) DRC Act does not create a ground of eviction in itself. But, it is a beneficial provision in favour of a tenant/ respondent. Even in the case of "second default", which is mentioned in proviso to 14 (2) DRC Act, the landlord/petitioners has to prove all the ingredients of section 14 (1) (a) DRC Act.
VI). Respondent No-1 already obtained Benefit under section 14(2) DRC Act:
46. As per the petitioner, Late Sh. Raghunath Singh (father and husband of present petitioners) filed an eviction petition under section 14 (1) (a) of Delhi Rent Control Act against the respondent in respect to premises in question, which was allowed by the Ld. Court of Ms. Neena Krishna Bansal, A.R.C. Delhi, vide her order dated 28.07.2000. Further, no question was put by respondent side to PW-1 during his cross examination nor even a suggestion was put to him. Copy of said order dated 28/07/2000 was marked as Mark-'A' as record of said file was E. No. 74/2008 Sh.Rajinder Singh Tanwar & Another Vs. Sh. Bhagwan Singh Page 18 of 20 destroyed as per statement of clerk/PW-2, who as summoned from the record room, Tis Hazari Courts, Delhi. But, the respondent No-1/DW-1 in his cross examination gave evasive answer in this regard. But in any case respondent no-1, during his cross examination admitted the certified copy of the final judgment dated 28/07/2000 on an eviction petition U/Sec. 14(1)(a) of D.R.C Act filed by Late Sh. Raghunath Singh against the same respondent no-1 and the same was Ex. DW-1/PX-1. And this court has gone through the contents of earlier judgment dated 28/07/2000 and it is clear from the same that benefit U/s 14 (2) of DRC Act was already given to the present respondent No. 1. Therefore, this court holds that the respondent no. 1 had already enjoyed the benefit U/s 14 (2) DRC Act earlier.
47. But still it is argued by the Ld. Counsel for the respondent no-1 that the earlier petition U/Sec. 14(1)(a) D.R.C. Act mentioned above was not between the present petitioners and respondent no-1. As such it is further argued that for the applicability of proviso to section 14 (2) DRC Act, the parties must be the same in earlier petition U/s 14(1) (a) DRC Act.
On the other hand, it is argued by the learned counsel for petitioner that petitioner and respondent need not to be same in order to claim the benefit U/s 14 (2) DRC Act. Learned counsel for petitioner also relied on the judgment of Mr. Harsh Gupta vs. M/s. Insulation & Electrical Products Pvt. Ltd. dated 19/09/2011, in CM (M) No. 79/2003 by the Hon'ble Delhi High Court in this regard. In any case, it is further argued that in present case present petitioners are just the natural legal heirs i.e. the son and widow of such Late Sh. Raghunath Singh, petitioner in the above mentioned previous petition between the parties.
In my view, it is the tenant who must be the same and not the landlord in the earlier petition U/s 14 (1) (a) DRC Act, as is the case E. No. 74/2008 Sh.Rajinder Singh Tanwar & Another Vs. Sh. Bhagwan Singh Page 19 of 20 at present. This is so having regard to the object of section 14 (2) DRC Act i.e to give further protection from eviction to the tenant. And it is nowhere mentioned in such section 14 (2) DRC Act or any other section of DRC Act that landlord has to be same in both the petitions. In any case in present case, petitioners are nobody else but the natural legal heirs after the death of original petitioner late Sh. Raghunath Singh.
CONCLUSION:-
48. Therefore, as it is held that the respondent no. 1 is a defaulter within the meaning of Section 14(1)(a) of DRC Act and further that benefit U/s 14 (2) DRC Act has already been given to the respondent in earlier eviction petition decided on 27/07/2000, therefore, an eviction order is passed against the respondent no. 1 with respect to tenanted premises i.e shop measuring approximately 20X10ft. having private shop No-3, situated on the ground floor of property no. WZ-18, Tatarpur, New Delhi-27, depicted in red colour in the site plan Ex. PW-1/1.
49. No order as to costs. File file be consigned to Record Room.
Announced in the open court on 19th November, 2014 (This judgment contains 20 pages).
(Naveen Kr. Kashyap) Commercial Civil Judge- cum-
Additional Rent Controller, West District Courts, E. No. 74/2008 Sh.Rajinder Singh Tanwar & Another Vs. Sh. Bhagwan Singh Page 20 of 20