Delhi District Court
Sh. Suresh Kumar vs Sh. Surinder Singh on 1 September, 2015
IN THE COURT OF NAVEEN K. KASHYAP, COMMERCIAL
CIVIL JUDGE-CUM-ADDITIONAL RENT CONTROLLER
(WEST), TIS HAZARI COURTS, DELHI.
E. No: 89/2013
Sh. Suresh Kumar
S/o Sh. Kirpa Ram
R/o WZ-106-C, Guru Nanak Nagar,
New Delhi-110018. ....Petitioner
VERSUS
Sh. Surinder Singh
S/o Sh. Sohan Singh,
Shop No. 3, Ground Floor,
Gali No. 13, WZ-106-C,
Guru Nanak Nagar,
New Delhi-110018. ....Respondent
Date of Institution : 09.07.2013
Date of Judgment : 01.09.2015
JUDGMENT
1. By filing the present petition, petitioner Sh. Suresh Kumar is seeking eviction of respondent Sh. Surender Singh in respect of one shop bearing No. 3, Ground Floor, forming part of premises No. WZ-106-C, Guru Nanak Nagar, New Delhi-110018 measuring about 63 sq. ft. approximately, as shown in red color in the site plan (hereinafter referred to as tenanted suit premises) under Section 14(1)(a) of DRC Act for non-payment of rent.
2. The facts in brief, as narrated in the petition, are that initially the tenanted premises were let out in the year 2006 at the rate of Rs. 2,500/- per month vide agreement dated 27th July, 2006. Subsequently, the rent was increased to Rs. 3,000/- per month w.e.f. March, 2012. That the respondent is in arrears of E. No. 89/2013 Suresh Kumar vs. Surinder Singh Page 1 of 11 rent from 01.10.2012 till date @ Rs. 3,000/- per month. It is further claimed that petitioner is the owner and landlord of the premises in question.
It is further stated by the petitioner that the respondent has filed a false and frivolous suit in the year 2011 in the then Ld. Civil judge, in which the petitioner (respondent herein) prayed from non-eviction of the respondent without due process of law. The said suit was settled in the Mediation Centre and the respondent agreed to pay the enhanced rent w.e.f. 01.03.2012 along with previous arrears of rent.
As such petitioner even issued a legal notice dated 05/04/2013 through his counsel by registered post. It is further stated that the said notice was duly received by the respondent, however, the respondent failed to comply with the said legal notice.
As such, the present petition is filed for eviction of the respondent from the suit premises.
3. On bare perusal of the written statement filed on 14.10.2013, it is clear that the landlord-tenant relationship between the parties, description and identity of suit premises and rate of rent, are not denied by the respondent.
But it is claimed by the respondent/tenant that there is no cause of action, petitioner suppressed the material facts from the court and the petitioner has not come to the court with clean hands. It is stated by the respondent that he has been running a business of motor cycle repairs in the tenanted premises for last five years. It is further stated by the respondent that in the year 2007, the petitioner approached the respondent and requested for an additional security of Rs. 60,000/- and the said amount was E. No. 89/2013 Suresh Kumar vs. Surinder Singh Page 2 of 11 paid to petitioner. The petitioner assured the respondent not to raise the rent in future till the amount of Rs. 60,000/- is pending towards him and same is not paid yet by the petitioner. It is further stated by the respondent that earlier a suit was filed by him settled in the Mediation Centre and the petitioner agreed to give a NOC for installation of new electricity connection and not to dispossess him without due process of law. The respondent denied other allegations levelled by the petitioner on him. Hence, the respondent prayed for dismissal of the present petition.
4. In this case, arguments were heard U/s 15(1) of DRC Act. And vide order dated 03/12/2013 passed by my Ld. Predecessor, the respondent was directed to pay the rent @ Rs. 3,000/- per month to the petitioner w.e.f. July 2013 onwards till date within one month of passing such order and continue to pay or deposit the future rent at the same rate by 15th of each succeeding English calendar month.
5. It is pertinent to mention here that vide separate order of dated 11.09.2014 passed by this court, the defence of the respondent was struck off.
6. Thereafter, evidence was led by the petitioner. The petitioner examined himself as the only witness as PW-1. As PW-1, he tendered his evidence by way of affidavit Ex. PW-1/A. Petitioner/PW-1 deposed on the lines taken in his petition. Further, he proved various documents viz. The site plan Ex. PW-1/1, Copy of agreement as Ex. PW-1/2, Copy of settlement arrived at Mediation Centre along with order of the then Ld. Civil Judge as Ex. PW-1/3 & PW-1/4, copy of legal notice as Ex.
E. No. 89/2013 Suresh Kumar vs. Surinder Singh Page 3 of 11PW-1/5, copy of proof of service as Ex. PW-1/6 and the receipt through which the rent was lastly paid as Ex. PW-1/7. Petitioner/PW-1 was cross examined by the respondent's side.
7. The defence of the respondent was already struck off, therefore, no evidence was led by the respondent.
8. Thereafter, final arguments were heard in detail. Further, I have perused the record.
9. To prove the case Under Section 14(1)(a) of DRC Act, 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 in question;
IV) That a valid legal demand notice was duly
served upon the respondent; and
V) That the respondent has neither paid nor
tendered the entire arrears of legally recoverable rent within two months of date of receipt of legal demand notice.
I). Relationship of Landlord and Tenant; and II). Rate of rent:-
10. It is pertinent to note that relationship of landlord and tenant is not disputed by the respondent. Further, present rate of rent of Rs. 3000/- per month excluding electricity charges, is also not disputed by the tenant side and same is admitted.
III). That a valid Legal Demand Notice was duly served E. No. 89/2013 Suresh Kumar vs. Surinder Singh Page 4 of 11 upon the respondent:
11. In para no. 18 (b) of the petition, the petitioner has stated that he even issued a legal notice dated 05/04/2013 through his counsel by registered post. It is further stated that the said notice was duly received by the respondent, however, the respondent failed to comply with the said legal notice.
But in his reply to such para no. 18 (b), the respondent did not deny such averments at all and only stated that the content of such para no. 18 (b) are matter of record. Thus service of legal demand notice in question Ex. PW-1/5 is a deemed admission on the part of respondent.
Even otherwise in his evidence by way of affidavit PW-1/Petitioner specifically stated that he served a legal demand notice Ex. PW-1/5 through registered post AD, Ex. PW-1/6 and same is duly served on the respondent. Despite that not even a suggestion is given to this witness during his cross examination by the respondent side, as far as the aspect of service of such legal notice is concerned.
Further, under these facts and circumstances, the presumption of service as per Section 114 of the Indian Evidence Act and Section 27 of General Clauses Act is applicable as the petitioner is able to prove on record that Legal demand notice Ex. PW-1/5 was sent through registered post AD on the correct address as per law. In fact, even during trial the respondent never raise the objection that the address on which the such legal notice is sent is not correct. In fact, it is the address of tenanted suit premises in question.
Furthermore, in this regard in K. Bhaskaran v. Sankaran Vaidhyan Balan, (SC) [1999 A.I.R. (SC) 3762 ]; it was observed by the Honourable Apex Court that the principle incorporated in E. No. 89/2013 Suresh Kumar vs. Surinder Singh Page 5 of 11 Section 27 of D.R.C. Act 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.
12. As such, in view of above mentioned position of law coupled with facts and circumstances of the present case and evidence on record, it is concluded that the petitioner proved the service of legal demand notice dated 05/04/2015, Ex. PW-1/5 upon the respondent.
IV) Arrears of Rent;
And
V) That despite service of the legal demand notice the
respondent has neither paid nor tendered the entire arrears of legally recoverable rent:
13. The issue before the court is whether the respondent was in arrears of rent on the date of legal demand notice dated 05/04/2015, Ex. PW-1/5.
14. It is the case of the petitioner that the respondent had defaulted in payment of rent.
It is further stated that respondent defaulted in payment of rent and have not paid the rent w.e.f. 01/10/2012. As such it is claimed that the respondent defaulted in payment of rent, despite service of the legal notice Ex. PW-1/5.
15. It is settled law that when the petitioner alleges non-
E. No. 89/2013 Suresh Kumar vs. Surinder Singh Page 6 of 11payment of rent under section 14(1)(a) of DRC Act, the onus lies upon the respondents/tenants to prove that they have paid the rent as also held in "Karamchand Deojee Sanghavi Vs. Tulshiram Kalu Kumawat", [1992(1) RCR 118].
16. Thus, the onus was upon the respondent to prove that he had made upto date payment of rent @ Rs. 3000/- per month and that there were no arrears of rent due against him at the time of service of legal demand notice Ex. PW-1/5.
17. The respondent can prove the said fact either through oral or documentary evidence.
18. At this stage, it would be fruitful to keep in mind the Sections 26 to 29 of DRC Act relating to the scheme and procedure about payment of rent and issues connected therewith.
19. Having regard to such sections of the DRC Act, we come to the facts of the present case.
20. In this case, the defence was taken by respondent in his reply/ WS that he has paid rent upto June 2013. The respondent has further taken the defence that thereafter the petitioner refused to accept the rent. But it is pertinent to note that there is no evidence on record by the respondent side in support of such defences as his right to lead evidence was struck off. Further, on the other hand, in his examination in chief by way of affidavit, the PW-1/petitioner denied that rent is so paid by the respondent upto June 2013. On the contrary, the PW-1 deposed that the rent is not paid since 01/10/2012. Further, even during E. No. 89/2013 Suresh Kumar vs. Surinder Singh Page 7 of 11 cross examination of PW-1/petitioner nothing material could be extracted by the respondent in his favour.
21. Thus, at this stage, another important issue in the facts and circumstances of present case is that whether the respondent was legally required to move the court under Delhi Rent Control Act, if the petitioner refused to issue receipt or accept the rent.
22. For this purpose, reliance can be placed on judgment of the Honorable Supreme Court in judgment titled "Sarla Goel Vs Kishan Chand" [2009 (7) SCC 658], where it was held 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. It was further held that from a conjoint reading of this provision and particularly Section 27 of the Act, 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.
23. It was further held by the Hon'ble Supreme Court that taking into consideration the object of the Act and the intention of E. No. 89/2013 Suresh Kumar vs. Surinder Singh Page 8 of 11 the Legislature and in view of the discussions made herein earlier, 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 their, 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.
24. From the aforesaid judgment it is clear that even if the landlord refused to issue rent receipt and/ or refused to accept the rent tendered in person from July 2013, as claimed by respondent, still as per the evidence proved on record the respondent failed in his obligation to move appropriate petition in court under section 27 of Delhi Rent Control Act, within the period prescribed in Section 26 (3) of DRC Act at all.
25. Therefore, even if it is presumed for the sake of argument only that petitioner refused to accept the rent or issue rent receipt since 01/10/2012, still the respondent failed to prove his obligation to move appropriate petition in court under section 27 of Delhi Rent Control Act.
26. In view of the above discussion, the court is of the opinion that despite service of the legal demand notice, the respondent has neither paid nor tendered the arrears of rent since 01/10/2012.
E. No. 89/2013 Suresh Kumar vs. Surinder Singh Page 9 of 1127. Therefore, in view of such above mentioned position of law, it is held that despite the service of the legal demand notice in question, the respondent has neither paid nor tendered the arrears of rent.
Conclusion:
28. From the above discussion, it is clear that the petitioner has proved all the ingredients of Section 14(1)(a) of DRC Act therefore, the present petition is decided in favour of the petitioner and against the respondent with respect to tenanted premises i.e. one shop bearing No. 3, Ground Floor, forming part of premises No. WZ-106-C, Guru Nanak Nagar, New Delhi-110018 measuring about 63 sq. ft. approximately, as shown in red color in the site plan Ex.PW1/1.
29. In the foregoing circumstances, the respondent is held to be a defaulter within the meaning of Section 14(1)(a) of DRC Act.
30. Further in view of abovermentioned findings, the respondent is directed to pay to the petitioner or deposit in court the arrears of rent w.e.f. 01/10/2012 (instead of 01/06/2013) till date at the same rate of Rs. 3,000/- per month excluding electricity charges within one month from today under section 15(1) of DRC Act and continue to pay the future rent by 15th of each succeeding English calendar month.
31. The order U/Sec. 15(1) D.R.C. Act dated 03/12/2013 passed by my Ld. Predecessor stands modified accordingly.
E. No. 89/2013 Suresh Kumar vs. Surinder Singh Page 10 of 1132. Put up on 06/11/2015 for consideration regarding compliance of this order as well as the interim order passed U/Sec. 15(1) D.R.C. Act earlier on 03/12/2013 and whether respondent is entitled to benefit under Section 14(2) of DRC Act or not, as non compliance of aforesaid orders would disentitle the respondent from availing benefit under section 14(2) of DRC Act.
33. Separate file be maintained for consideration as regards benefit under section 14(2) DRC Act.
34. No order as to costs. This file be consigned to Record Room.
Announced in the open court on 01/09/2015.
(This judgment contains 11 pages).
(Naveen Kr. Kashyap) Commercial Civil Judge-cum Additional Rent Controller, West District Courts, Delhi.
E. No. 89/2013 Suresh Kumar vs. Surinder Singh Page 11 of 11 E. No. 89/2013Suresh Kumar vs. Surinder Singh
01.09.2015
Present: Ld. Counsel for petitioner.
Proxy counsel for respondent.
Vide separate judgment of even date pronounced in open court, the petitioner has proved all the ingredients of Section 14(1)(a) of DRC Act therefore, the present petition is decided in favour of the petitioner and against the respondent with respect to tenanted premises i.e. one shop bearing No. 3, Ground Floor, forming part of premises No. WZ-106-C, Guru Nanak Nagar, New Delhi-110018 measuring about 63 sq. ft. approximately, as shown in red color in the site plan Ex.PW1/1.
Further, the respondent is directed to pay to the petitioner or deposit in court the arrears of rent w.e.f. 01/10/2012 (instead of 01/06/2013) till date at the same rate of Rs. 3,000/- per month excluding electricity charges within one month from today under section 15(1) of DRC Act and continue to pay the future rent by 15 th of each succeeding English calendar month.
The order U/Sec. 15(1) D.R.C. Act dated 03/12/2013 passed by my Ld. Predecessor stands modified accordingly.
Put up on 06/11/2015 for consideration regarding compliance of this order as well as the interim order passed U/Sec. 15(1) D.R.C. Act earlier on 03/12/2013 and whether respondent is entitled to benefit under Section 14(2) of DRC Act or not, as non compliance of aforesaid orders would disentitle the respondent from availing benefit under section 14(2) of DRC Act. Separate file be maintained for consideration as regards benefit under section 14(2) DRC Act.
No order as to costs. This file be consigned to Record Room.
(Naveen K. Kashyap) CCJ-Cum-ARC-(W) THC/Delhi- 01.09.2015.
E. No. 89/2013 Suresh Kumar vs. Surinder Singh Page 12 of 11