Delhi District Court
Sh. Abdul Rashid vs Smt. Krishna Sharma on 9 September, 2013
In the Court of Sh. Gorakh Nath Pandey
Senior Civil JudgecumRent Controller
New Delhi District, Patiala House Courts
New Delhi
E. No. 23/2009
Unique ID No. 02403C0678392006
In the matter of:
Sh. Abdul Rashid
S/o Sh Abdul Ghani
r/o 2594/7, Albert Square,
R K Ashram Marg, Gole Market
New Delhi110001 ................ Petitioner.
VERSUS
Smt. Krishna Sharma
W/o Sh Som Dutt
R/o 24/288, TypeI, Quarters,
Panchkuian Road
Mandir Marg, ,
New Delhi. ................... Respondent
Date of Institution : 20.12.2006
Date of Arguments: 09.09.2013.
Date of Judgment : 09.09.2013
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Mr. Abdul Rashid v. Smt. Krishna Sharma
APPLICATION FOR EVICTION OF TENANT UNDER SECTION
14(1)(a) OF THE DELHI RENT CONTROL ACT, 1958.
JUDGMENT
This is an application for recovery of possession of premises, namely, Shop No. 2594/7D, Ground Floor, Albert Square, R K Ashram Marg, Gole Market, New Delhi as shown red in the site plan attached with the petition, filed by Sh Abdul Rashid against against respondent/tenant Smt. Krishna Sharma uder section 14 (1) (a) of the Delhi Rent Control Act, 1958 (in short 'the Act').
2 It is stated in the application that the premises were let out to the respondent vide rent agreement dated 5.11.2003 at monthly rent of Rs. 500/ excluding electricity and water charges; that respondent is habitual defaulter in payment of monthly rent since 5.1.2005; that the respondent has made additions and alterations by erecting a platform opposite tenanted shop; that the respondent has sublet, assigned and pared with the possession of the of the whole shop to one Sh Ram Sewak without permission of the petitioner/landlord. The petitioner has claimed arrears of rent from 5.1.2005 till filing of the petition with interest @ 15% with litigation expenses and cost in addition to eviction of the respondent from the tenanted premises.
3 The summons of the eviction petition was served upon the
respondent. The respondent appeared and filed WS taking preliminary
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Mr. Abdul Rashid v. Smt. Krishna Sharma
objection that the claim of the petitioner is false and without any legal authority and he is guilty of "suppressio veri suggestio falsi". It is averred that the shop in question is owned by the Delhi Wakf Board and the petitioner is a licensee under the Delhi Wakf Board; that on 5.11.2003 the petitioner had entered into an agreement with the respondent for lease of the shop on a monthly rent of Rs.500/ excluding electricity and water charges with a refundable security deposit of Rs.1500/; that thereafter the respondent regularly paid the rent to the petitioner up to 30.11.2004; that during the end of November, 2004 the officials of the Delhi Wakf Board visited the premises of the respondent directed her not to pay any amount towards rent to the petitioner stating that the licence granted to the petitioner is null and void and without legal authority and further advised the respondent to obtain license from the Delhi Wakf Board and thereafter the respondent filed an application with the Delhi Wakf Board and vide resolution 15 dated 22.12.2004 respondent was asked to donate a sum of Rs.18,000/ before the ground of license in favour of the respondent and thereafter the respondent entered into and executed a Deed of License dated 14.1.2005 with the Delhi Wakf Board in respect of the said shop for a period of 11 months commencing from 1.12.2004 and ending on 31.10.2005 on a monthly license fee of Rs.500/ per month alongwith a security deposit of Rs.1500/. It is further stated that in E23/09 Page no. 3 of 12 Mr. Abdul Rashid v. Smt. Krishna Sharma November/December 2005 the respondent handed over the vacant, peaceful and physical possession of the shop in question to the Delhi Wakf Board. On merits, it is denied that the respondent has made additions/alterations or has sublet, assigned or parted with possession of the whole of the shop in question to Sh Ram Sewak. It is also denied that the respondent has failed to pay the rent since 5.1.205 till date as the respondent was under no obligation to pay any rent to the petitioner since 5.1.2005 as the claim of the petitioner is false.
4 The petitioner filed rejoinder to the written statement of the respondent denying the averments of the respondent and reiterating the facts disclosed in the eviction petition.
5 Vide order dated 1.5.2009, the application of the respondent under Order VII rule 11 CPC was dismissed by my Ld. Predecessor and the matter was listed for arguments.
6 In support of the contention, the petitioner filed his affidavit by way of evidence and examined himself as PW1 and reiterated the averments as mentioned in the petition. The witness has also deposed regarding the documents relied by him, i.e. affidavit Ex. P1, allotment letter issued by Delhi Wakf Board in the name of the petitioner Ex. PW1/1 and resolution of Delhi Wakf Board Ex. CW1/2; site plan of the suit property Ex. PW1/3; rent agreement executed between the parties Ex. PW1/4; legal E23/09 Page no. 4 of 12 Mr. Abdul Rashid v. Smt. Krishna Sharma notice issued to the respondent Ex. PW1/5 and correction therein Ex. PW1/6; the reply of the notice by the respondent Ex. PW1/7; the counter foils of the rent receipts paid by the respondent Ex. PW1/6 to Ex. PW1/21. The witness deposed that the respondent has sublet and parted with possession of the suit property and the suit is correct. As no other witness was examined by the petitioner, the PE was closed. The case was thereafter fixed for respondent evidence.
7 The respondent also filed her affidavit by way of evidence and was examined RW1 who deposed regarding the facts in support of claim and contentions. The witness deposed that the petitioner let out the suit property to the respondent by representing as builder/owner and landlord of the property in question and the respondent paid the monthly rent of Rs. 500/ up to 1.12.2004 till the disclosure made by the Delhi Wakf Board. The respondent applied to Delhi Wakf Board for lease/license of the suit property which was allowed vide meeting dated 22.12.2004 and resolution no. 15 dated 18.12.2004. The witness has further deposed regarding the relevant documents in this respect, i.e. intimation card dated 18.12.2004 of Delhi Wakf Board and deposit of Rs.18,000/ by the respondent to Delhi Wakf Board Ex. RW1/A and Ex. RW1/B respectively. The witness deposed that deed of licence dated 14.1.2005 Ex. RW1/C was executed. The witness proved the site plan, no objection certificate dated 13.1.2005, E23/09 Page no. 5 of 12 Mr. Abdul Rashid v. Smt. Krishna Sharma receipt of security deposit dated 14.1.2005 and rent receipt dated 14.1.2005, all issued by Delhi Wakf Board Ex. RW1/D, RW1/E, RW1/F and RW1/G respectively. The witness further deposed that in November/December 2005, she handed over the possession of the suit property to Delhi Wakf Board and Delhi Wakf Board leased out the premises to some other person. 8 I have heard counsel for the petitioner and have gone through the materials on record.
9 Ld. Counsel for the petitioner has brought to the notice of this court that testimony of the witness and the documents on record and argued that the premises were let out to the respondent by the petitioner; the respondent/tenant failed to pay the rent to the petitioner. It is further argued that the petitioner has proved the case in view of the testimony of PW1 and prayed to pass eviction order in favour of the petitioner and against the respondent. It is further argued that as the respondent was inducted as tenant by the petitioner, the respondent cannot deny the fact of petitioner being landlord in view of section 116 of Indian Evidence Act, 1872.
10 Per contra, having drawn my attention on the testimony of petitioner itself, counsel for the respondent has argued that the petitioner is neither owner nor landlord and the petition is false. It is argued that the petitioner has failed to prove the case and the respondent is the tenant of the E23/09 Page no. 6 of 12 Mr. Abdul Rashid v. Smt. Krishna Sharma Delhi Wakf Board and also paid the rent to Delhi Wakf Board. Relying upon the law laid down by the Hon'ble Supreme Court in AVGP Chettiar & Sons versus T. Palani Swami Jounder, 2002(1) RCR 575, it is argued that there exists no relationship of landlord and tenant between the petitioner and the respondent and the respondent is the direct licencee of Delhi Wakf Board. It is further prayed that petition for eviction be dismissed with cost. 11 I have given my thoughtful consideration to the submissions made on behalf of the parties and considered the relevant provisions of law. 12 The recovery of possession of the tenanted premises from the tenant can be sought by the landlord under section 14(1)(a) of the DRC Act on the ground that " the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served of him by the landlord in the manner provided in section 106 of the Transfer of Property Act, 1882 (4 of 1882);"
13 Clause (a) of proviso to subsection (1) of section 14 of Act 59 of 1958, which pertains to eviction of tenant reads as below:
14.(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenant:
E23/09 Page no. 7 of 12 Mr. Abdul Rashid v. Smt. Krishna Sharma Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely: * * *
(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served of him by the landlord in the manner provided in section 106 of the Transfer of Property Act, 1882 (4 of 1882);
* * * 13 In the light of the language of clause (a) of proviso to sub
section (1) of section 14 of Act 59 of 1958, the issues which fall for determination of the court are that: (1) whether there exists relationship of landlord and tenant between the parties?;
(2) whether the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has E23/09 Page no. 8 of 12 Mr. Abdul Rashid v. Smt. Krishna Sharma been served upon him by the landlord?
14 The applicant/petitioner claimed that there is relationship of landlord and tenant between him and the respondent having let out the premises in question to the respondent vide agreement Ex. PW1/4. The respondent has disputed that there exists relationship of landlord and tenant between the respondent and the petitioner contending that the licence of the petitioner was revoked by Delhi Wakf Board and she is a direct licencee of Delhi Wakf Board. As regards of the payment of rent by the respondent to the petitioner, it is admitted by the petitioner during cross examination that the respondent has paid the rent till the date the petition for eviction was filed by the petitioner. As the rent was paid by the respondent till the date this petition was filed, there is no question of any rent being due and consequent payment of any arrears of rent by the respondent. The only question to be examined in this matter remains as to whether there exists relationship of landlord and tenant between the parties or not.
15 It is admitted by the petitioner during crossexamination that he was a licensee of Delhi Wakf Board and has not taken permission from Delhi Wakf Board to sublet the premises to the respondent. Admittedly the respondent has been paying rent to the petitioner till this eviction petition was filed and thereafter the respondent has been paying rent to Delhi Wakf E23/09 Page no. 9 of 12 Mr. Abdul Rashid v. Smt. Krishna Sharma Board. No objection was raised by the petitioner to the Delhi Wakf Board in this respect. The witness is not aware as to respondent was asked by Delhi Wakf Board to pay rent failing was threatened to vacate the premises and hence the respondent started paying rent to the Delhi Wakf Board. Admittedly, the petitioner is not paying any rent to Delhi Wakf Board and admitted the documents put to the witness/petitioner during cross examination. The respondent is further in not possession of the property since 2005 and some other person is in possession. The person in possession as well as the Delhi Wakf Board is not a party before this court. As the respondent is not in possession, he is not liable to pay any rent. Moreover, as the petitioner failed to show that he is the owner/landlord of the property in question, the petitioner is not entitled to the rent as prayed in this petition.
16 The respondent filed her affidavit by way of evidence and examined herself as RW1. The testimony of the respondent remain un impeached and unrebutted and the respondent was not crossexamined by the petitioner at all and therefore there is no reason to disbelieve the testimony of the respondent. The respondent has further proved documents to show that license has been granted to the respondent by Delhi Wakf Board after revocation of licence of the applicant/petitioner. The contention of the Ld. Counsel for the petitioner that as the premises was let out to the E23/09 Page no. 10 of 12 Mr. Abdul Rashid v. Smt. Krishna Sharma respondent by the petitioner and respondent also paid rent, the respondent cannot deny the relationship of landlord and tenant in view of Section 116 of the Indian Evidence Act is also not tenable.
17 I have gone through the judgement titled, Ram Chandra Chatterji & Others Vs. Pramatha Nath Chatterjee & Ors, AIR 1992 Calcutta 237 wherein it is held that it is open to the tenant to prove a subsequent cesser of the landlord's title. The estoppel mentioned in section 116 of the Evidence Act refer so the title at the beginning of the tenancy. One way in which the tenant can show that the title has determined is by proving an eviction by title paramount or the equivalent of such an eviction.
As further held in AIR 1931 Lahore 243, tenant can plead that landlord's title has expired or defeated by paramount title, without surrendering possession. Such a defence is permissible without the tenant having to surrender his possession as is ordinarily necessary before the lessee can deny his lessor's title however defective. As further held, where an ouster by title paramount or attornment thereto is pleaded, it is not the title of the landlord at the beginning of the tenancy which is being impeached by the raising of such a defence and the rule of estoppel laid down in section 116 no longer operates as a bar.
18 Hon'ble Supreme Court in AIR 1987 SC 2192 held that
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Mr. Abdul Rashid v. Smt. Krishna Sharma
section 116 of the Evidence Act provides that no tenant of immovable property shall during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of tenancy, a title to such immovable property. Possession and permission being established, estoppel would bind the tenant during the continuance of the tenancy and until he surrenders his possession. estoppel u/s 116 of the Evidence Act is restricted to the denial of the title of the landlord at the commencement of the tenancy. From this, the exception follows that it is open to the tenant even without surrendering possession to show that since the date of tenancy, the title of the landlord came to an end or that he was eviction by a paramount title holder or that even though there was no actual eviction or dispossession from the property, under a threat of eviction he had attorned to the paramount title holder.
19 In view of my above discussions it is found that there does not exist relationship of landlord and tenant between the applicant and the respondent. As the petitioner is not the owner/landlord nor any such relationship exists between the parties, the petition cannot be allowed and is liable to be dismissed. The petition is therefore, dismissed. No order as to costs in the facts and circumstances of the case. File be consigned to RR.
Announced in the open court (GORAKH NATH PANDEY)
on this 9th day of September, 2013 Rent Controller : New Delhi
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Mr. Abdul Rashid v. Smt. Krishna Sharma