Delhi District Court
Shri Om Prakash vs Mohan Lal on 20 October, 2016
IN THE COURT OF HARJYOT SINGH BHALLA : ACJ/CCJ/ARC
(SE), SAKET COURTS, NEW DELHI
New No. 5059/16 (old. No. Ev. No. 33/2014)
Shri Om Prakash,
S/o Shri. Babu Lal
R/o C23 A, Sanwal Nagar,
New Delhi49 Petitioner
Versus
1. Mohan Lal
R/o 1207, Kotla Mubarakpur
New Delhi110003
2. Kailash Chand
R/o 1207, Kotla Mubarakpur
New Delhi110003
3. Sh. Pooran Chand
R/o No. 1207, Ground Floor,
Basti Nanak Chand,
Kotla Mubarakpur,
New Delhi 110003 Respondents
Date of institution : 05.05.2014
Arguments heard on : 14.09.2016
Judgment pronounced on : 20.10.2016
JUDGMENT
1. By this Judgment I shall decide the aforesaid petition seeking eviction of tenant under the provisions of Section 14 of DRC Act on 3 Om Prakash Vs. Mohan Lal Ev. No. 33/2014 1/14 grounds. Firstly, under Section 14 (1) (a) for non payment of rent. Secondly, on 14 (1) (b) on the ground that premises have been sublet and thirdly, under Section 14 (1) (e) on ground of bonafide requirement.The petitioner is, interalia, seeking eviction of tenant/respondent from shop No.9A situated at the ground floor of the property bearing no. 1207, Ground Floor, Basti Nanak Chand, Kotla Mubarakpur, New Delhi110003 admeasuring about 12 X 8 Sq. ft. as shown in the site plan attached with the petition (hereinafter referred as the "tenanted suit property").
a) on recovery of 14 (1) (a) for non payment of rent.
2. It is averred that the tenanted property was initially let out the respondents but recently in October, 2013, the petitioner received a cheque dated 15.10.2013 for an amount of Rs. 9050.00ps drawn on Punjab National Bank as part payment of the outstanding dues/rent by the respondents. The petitioner has encashed the same but still the outstandings are due. So later when the petitioner visited the tenanted premises to talk to the respondents as they were not paying the rents regularly only then the petitioner has come to know that the respondents had sublet the tenanted premises to one Sh. Pooran Chand (hereinafter called the respondent No. 3) without the consent of the petitioner.
3. It is averred that when the petitioner inform about the same to his counsel and showed him the copy of the cheque dated 15.10.2013, only then he came to know that the cheque was issued to the petitioner by the Om Prakash Vs. Mohan Lal Ev. No. 33/2014 2/14 respondent No. 3 and not by the respondent and the petitioner has taken the same and also enchashed the same on good faith believing that the same has been paid by the respondent in lieu of the outstanding dues and also because he being a layman was unaware of the same.
4. It is averred that apart from this, the respondents were also under a chronic defaulter and not paid the rent as and when due. The rent was always paid in cash and against which receipt has been duly issued to the respondents and the rent stands paid by the respondents up till and thereafter no amount has been paid. The respondents have unnecessarily with malafide intention stop paying the rent and as such the respondents are also liable to pay the interest @ 18% as per annum. It is further submitted as provided under section 6A & 8 of the Delhi Rent Control Act, the petitioner is also entitled to ask for enhancement of the Rent after expiry of three years.
5. It is averred that the tenancy was terminated through a legal notice dated 01.02.2014.
b) Under Section 14 (1) (b) on the ground that premises have been sublet.
6. It is averred that when the petitioner visited the tenanted premises to talk to the respondent as he was not paying the rents regularly only then the petitioner has come to know that the respondent had sublet the tenanted premises to one Sh. Poonam Chand (hereinafter called the respondent No. 3) without the consent of the petitioner.
Om Prakash Vs. Mohan Lal Ev. No. 33/2014 3/14
7. It is averred that when the petitioner inform about the same to his counsel and showed him the copy of the cheque dated 15.10.2013, only then he came to know that the cheque was issued to the petitioner by the respondent No. 3 and not by the respondent. It is averred that since the tenanted premises has been sublet by the respondent Nos. 1 & 2 without taking any consent of the petitioner, so without prejudice to the rights of the petitioner the tenancy of the respondent Nos. 1 & 2 has been terminated through the legal notice dated 01.02.2014 and the respondents is liable to vacate the tenanted premises immediately and after termination of the tenancy by the afflux of time the respondents are liable for mesne profits and damages. The respondent Nos. 1 & 2 are the statutory tenant of the petitioner as provided under the law.
c) Under Section 14 (1) (e) on ground of bonafide requirement.
8. It is averred that apart from the above mentioned facts and circumstances the premises in question is also in a very dilapidated condition as the construction is very old and can collapse at any point of time, and for this reason the petitioner had various times requested the respondents to vacate the premises. It is also averred that the respondent also needs the said premises for his personnel and bonafide need as his family comprises of three sons and the petitioner has no other alternative suitable accommodation to settle his sons, so he needs the premises for his bonafide need and requirement.
Om Prakash Vs. Mohan Lal Ev. No. 33/2014 4/14
9. Summons were served on the respondents. The respondent no. 1 and 2 filed a joint written statement. Certain preliminary objections were taken i.e. concealment of facts, false statement/assertion of facts and failure to plead necessary facts.
10. In the written statement it is averred in response to:
(a) Ground of non payment of rent that the rent was being collected by the petitioner after the death of his father as one of the legal heirs. However, the respondent refused to accept further rent w.e.f. 15.10.2013 and started demanding higher rent of about Rs.10,000/ to Rs.15,000/ per month. Thereafter, when the respondent tried to tender the rent the same was not accepted and thereafter cause of action was contrived by the petitioner by not accepting the rent.
(b) Ground of sub tenancy: On ground of it is stated that the allegation that one Sh. Pooran Chand has been inducted as sub tenant is false for the following reasons:
11. Sh. Pooran Chand is the brother of the respondent no. 1 and the uncle of the respondent no.2. The cheque for payment of rent was from the account of Sh. Pooran Chand and which was directly given to the landlord because the relationship between the parties and respondent no. 3 has been helping the petitioner in running of his business. Handing over of possession to Sh. Pooran Chand has been denied by the respondent.
(c) Ground of bonafide requirement: On third ground it was stated Om Prakash Vs. Mohan Lal Ev. No. 33/2014 5/14 that petitioner never disclosed what was the bonafide need for which the premises was required by the petitioner. Secondly, petitioner withheld details of all other properties owned by the petitioner and available with him and the respondent had furnished an elaborate list of the properties owned by the petitioner as follows:
i) A38, Sanwal Nagar, New Delhi110049
ii) C1, Sanwal Nagar, New Delhi110049
iii) C24, Sanwal Nagar, New Delhi110049
iv) C205, Subhash Gali, Nanak Chand Basti, Kotla Mubarakpur, New Delhi110003
v) C265, Laxman Gali, Nanak Chand Basti, Kotla Mubarakpur, New Delhi110003
vi) Various other properties in Noida & Ghaziabad.
12. It is stated that the need of the petitioner is not bonafide and therefore, the petitioner never disclosed these properties. Petitioner has already let out most of the properties for higher rent and the purpose of seeking eviction for this property is also the same. The allegations that the property is dilapidated have been denied. It is also stated that the petitioner has falsely alleged that property was let out for residential purpose. It has been submitted that the same has been rented out for commercial purpose and has been used as such by the respondent.
13. Evidence was led by the parties. Petitioner examined himself as Om Prakash Vs. Mohan Lal Ev. No. 33/2014 6/14 the witness. He was duly cross examined. No other witnesses was examined on behalf of the petitioner. Petitioner exhibited a Power of Attorney in his favour by producing the same at the stage of evidence. Copy of the site plan was also exhibited. The same was objected by the counsel for respondent on the ground that the same was not supplied to the respondent. Petitioner also exhibited legal notice and corrigendum notice as Ex.PW1/D and Ex.PW1/E. The photocopy of cheque by respondent no. 3 was not exhibited when the evidence was tendered.
14. On behalf of the respondent, the respondent no. 1 examined himself as a witness and he was duly cross examined.
15. No other witness was examined by either of the parties.
16. I shall now proceed to deliver my findings on the aforesaid three grounds of eviction. At this stage, it is pertinent to note that in order to appreciate the evidence of the parties the court has to consider the weight which can be attached to the testimony of any particular witness. The demeanor of witness the consistencies and inconsistencies in the stand of the witness / party, as well as any improvements made by a party to the litigation during the course of the trial, etc. are relevant factors which have to be kept in mind while appreciating evidence. I may therefore point out my impression of the petitioner as a witness as certain material aspects came out during his evidence.
17. Firstly, the petitioner had alleged that the suit property was let Om Prakash Vs. Mohan Lal Ev. No. 33/2014 7/14 out for residential purpose. However, during the cross examination of the petitioner he admitted that:
It is correct that there is no bathroom and latrine in the tenanted premises. There is no water supply in the tenanted premises. There is no collusion for drainage of water in the tenanted premises.
18. He was further questioned with regard to the nature of tenanted premises and he replied:
It is wrong to suggest that there are other shop attached to the tenanted premises Vol. There are residential properties attached. There are three shops in the property bearing no. 1207, Nanak Chand Basti, Kotla Mubrakpur, Delhi. All three shops are attached to each other in which two shops are let out to the respondent and the corner shop is let out to one Kanhiya Lal.
19. Clearly, the witness cleverly tried to potray that the tenanted premises are attached to residential properties but then at the same time on further questioning admitted that the tenanted premises are a part of 3 shops attached together and one of the shops has been let out to some third party and two are with the respondents. The stand of the witness is shifty and clever denial which he gives up immediately on further probe. The falsity of his stand dents his credibility as a witness. Despite having being exposed, the witness still goes back to his stand that premises was not let for residential purposes and denies all suggestions, hereinafter reproduced:
Om Prakash Vs. Mohan Lal Ev. No. 33/2014 8/14 It is wrong to suggest that the tenanted premises were not let for residential purpose because there was no provision for latrine bathroom drainage etc. in the tenanted premises ab intio. Vol. At that time when I let out the tenanted premises there was no sewage lines and pipeline of water. It is wrong to suggest that the tenanted premises were not fit for residential purpose because there was no sewage or water pipeline. It is wrong to suggest that the tenanted premises was let out for the commercial purpose.
20. The respondent again confronted him on this aspect to expose his lies. His further cross examination on the aspect is reproduced hereinbelow:
Witness is confronted with Ex.PW1/B. It is correct that in the site plan the tenanted premises is mentioned as shop. It is wrong to suggest I have not clarify about the attached property with the tenanted premises in the site plan to make a false case against the respondents. I have not filed any photograph of the tenanted premises. It is wrong to suggest that I have not filed the same because there are many shops attached with the tenanted premises and the condition of the building is also good.
21. The aforesaid cross examination completely exposes the witness.
22. Secondly, the witness had stated that the property had been sublet to one Pooran Chand and he found out about subletting when cheque issued by Pooran Chand was given to him. He nowhere states that knew Pooran Chand from before and he knew the relations between the respondent Om Prakash Vs. Mohan Lal Ev. No. 33/2014 9/14 no. 1 and 2 and the said Sh. Pooran Chand. However, his cross examination of 08.01.2016 reveals a completely different picture and I quote:
It is correct that whenever I issued the receipt of the payment of the rent to the tenant one part of the receipt used to be given to the tenant and second part of the receipt used to kept for my record. It is correct that I issued the receipt to the tenant after putting my signatures and further I used to take the signatures of the tenant on the second part of the receipt which I used to kept on my record. The same process I used to follow with the respondents. I have not filed any proof of sub letting as an evidence. It is correct that the second part of the all receipts issued to the respondents are in my record.
It is correct that all second part of the receipts were signed by the respondent no. 3 i.e. Puran Chand. It is wrong to suggest that I have knowledge the fact from the beginning the respondent no. 3 himself used to sit on the shop. Vol I came to know the said fact when the cheque was issued from the account respondent no. 3.
23. No where in the petition has the petitioner stated that receipts were being signed by respondent no. 3. Rather his case was that after encashing the cheque dated 15.10.2013 petitioner visited the premises to talk to the respondent and it was then that he found out that the respondent had sub let the premises to one Pooran Chand (as per para 4 annexure C to the petition). Nowhere has the petitioner mentioned that the respondent no.3 is Om Prakash Vs. Mohan Lal Ev. No. 33/2014 10/14 the brother of the respondent no. 1 and uncle of the respondent no.2, being his father's brother. During his cross examination dated 07.12.2015 he admitted that the receipt against the cheque was issued by him in the month of October 2013. He also admitted that respondent no. 1 and 3 Pooran Chand are brothers. The aforesaid cross examination reveals that petitioner was regularly dealing with Pooran Chand and his claim that he got to know about sub letting in favour of Pooran Chand in the year 2013 is exfacie false.
24. This further dents the credibility of petitioner as a witness.
25. Thirdly, even though the case was filed on the basis of non payment of rent, during his cross examination dated 08.01.2016 the petitioner admitted "I have received the rent till June 2015.......it is correct that there was no default of payment of rent on behalf of respondents".
26. Fourthly, in his petition the case of the petitioner is that he requires the premises for his own need as well as for his three sons. As also he had no other alternate accommodation (para 9 of the annexure C to the petition). In the affidavit Ex.PW1/1 the petitioner improves upon his claim and deposes that:
"We are in dire need of the said premises for our personnel and bonafide need as my and my brothers families have ground up and I have three sons and one daughter my younger brothers namely Mr. Sohan Lal has one son and two daughters, Mr. Hira Lal is also habing two sons and two daughters and my eldest brother namely late Dharam Singh is also having two sons and Om Prakash Vs. Mohan Lal Ev. No. 33/2014 11/14 Five daughters all of them are LR's of the Late Shri Babu Lal, so we are in need of the said premises which are illegally occupied by the respondents. Hence for these reason that I have requested the respondents/tenants to vacate the Premises various times as I have no other alternative suitable accommodation to settle my and my brothers sons, so I require the premises for our bonafide need and personnel use".
27. Thus he includes the bonafide requirements of his brothers children as well in the affidavit tendered towards evidence. This part is completely beyond the pleadings and therefore inadmissible in evidence. The principle is borne out from the maxim secundum allegate et probata. Reliance is placed upon the decision reported as A Gangadhar Rao Vs. G. Gangarao AIR 1968 AP 291. It is equally settled that no evidence can be let in on a matter not pleaded but required to be pleaded and that no amount of evidence, even if let in without such a pleading can be looked into. Reliance is placed upon Bondar Singh & Ors. Vs. Nihal Singh & Ors. (2003) 4 SCC 161.
28. During his cross examination, he himself falsified his claim qua his own need as well as the need of his sons and his locus to seek property for the need of his brother's children (even though the need of his brother's children was never raised in the petition). I quote the relevant extract:
I have a shop in Sanwal Nagar bearing no. Shop no. 6, measuring area 10X14, Sanwal Nagar, New Delhi49. I am doing the work of photocopy and selling of mobile phones etc. from the said shop. I earn about Rs.15000/ Om Prakash Vs. Mohan Lal Ev. No. 33/2014 12/14 per month from said shop. Two of my three sons are working with me at said shop and one is running a dry cleaner shop measuring annexed with my shop. I have given one shop on rent for ATM measuring 10X 8. I receive the rent from PNB Bank for same. The rent of the said shop is about Rs.1900020000/. One of my other shop measuring 10X14 is on rent to one Ved Prakash for the business of spectacles and glasses. He pays Rs.26000/ per month as rent to me. All said shops are conclusively called a shop no. 6.
29. Therefore, the respondent was able to extract that the petitioner and all his sons are gainfully employed and earning and in possession of shop no. 6 as well as another shop annexed with the same. This information was never disclosed by the petitioner in the petition. The claim for bonafide requirement is also therefore based on concealment of facts and completely destroys the credibility of this witness. Not only that, the false plea about children of his brother is also belied by his own cross examination dated 26.09.2015 where he admits that:
All families of my three brothers are residing in their own houses and live separately. However, one son of my brother Hiralal is living separately on rent because dispute with his family. All my three brothers have also let out their respective properties which is in not in their use. My brother Hiralal also let out one property B7, Sanwal Nagar, ND. I need the suit property for doing business Vol. I need the said property for said son namely Rohit Kumar of my brother Hiralal.
Om Prakash Vs. Mohan Lal Ev. No. 33/2014 13/14
30. Clearly, the said brother's son is neither residing with the petitioner nor dependent on him for the premises and the case for bonafide requirement is not made out.
31. Thus in my view, not only is the witness unworthy of any credit, even otherwise, he ended up disproving his own case on all counts. Therefore, none of the grounds pleaded could be proved even on preponderance of probabilities.
32. Petition is accordingly dismissed. File be consigned to Record Room.
Announced in the open court (Harjyot Singh Bhalla) th Today on 20 October, 2016 ACJ/CCJ/ARC(SE) Saket Court, New Delhi / 20.10.2016 Om Prakash Vs. Mohan Lal Ev. No. 33/2014 14/14