Delhi District Court
Amrik Singh Sabharwal (Sc) vs Inder Singh on 11 August, 2023
No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh
IN THE COURT OF Ms. NEETU NAGAR,
ADDITIONAL RENT CONTROLLER (CENTRAL), TIS
HAZARI COURTS, DELHI.
RC ARC No. 80645/2016
Amrik Singh Sabharwal (since deceased)
S/o Late Sh. Amar Singh Sabharwal
R/o 53/12, R.K. Puram,
New Delhi - 110022
Through Legal Representative
M/s Anju Malik
D/o Late Sh. Amrik Singh Sabharwal
R/o H.No. 151, Ist floor, Gujrawalan Town,
Delhi-110009.
......... Petitioner
VERSUS
Mr. S. Inder Singh
S/o Sh. S. Habail Singh
Shop No.660/C, Chowk Military Road,
Anand Parbat, New Delhi-110005
Also at
R/o B-428, Raghbir Pura,
Najafgarh Road New Delhi
....... Respondent
Date of Filing : 15.07.2009
Date of reserving judgment : 05.08.2023
Date of Judgment : 11.08.2023
Decision : Allowed
JUDGMENT
1. Brief facts of the present case are that the petitioner filed the present petition Under Section 14 (1) (a) of Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act') for eviction of the (NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 1 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh respondent in respect of the Shop No.660/C measuring 170 square feets approximately situated at Chowk Military Road, Anand Parbat, New Delhi which is shown in Red Colour of the site plan attached (hereinafter referred to as "tenanted shop").
FACTS OF THE PETITION
2. It is averred by the petitioner that Sh. Amar Singh Sabharwal, owner of the property inducted the respondent Sh. Inder Singh as tenant on written rent agreement dated 07.5.1981 in respect of tenanted shop for commercial purpose at monthly rent of Rs.230/- per month without electricity charges payable on 1st day of each English calendar month by cheque only for running the business of repair of air compressor and motor etc. The rent was enhanced from time to time and present rate of rent is Rs.530/- per month excluding electricity charges.
2.1 It is submitted that Sh. Amar Singh Sabhawal expired leaving behind a Will and Sh. Avtar Singh obtained letter of Administration dated 02.03.1993. The petitioner vide notice dated 25.02.1994 instructed the respondent not to pay the rent to Avtar Singh. During the pendency of the probate case, the legal heirs of Late Sh. Amar Singh Sabharwal entered into a Memorandum of Understanding dated 22.05.2008 and vide said MOU, the petitioner became the lawful owner of the tenanted shop and the respondent became the tenant under the petitioner in respect of tenanted shop. Notice dated 25.02.1994 was served upon the respondent but the respondent defaulted in payment of rent and in arrears of rent with (NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 2 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh effect from the date of notice. The respondent is in arrears of rent ever since notice dated 25.02.1994 was served @ Rs.530/- per month till date.
2.2 It is further submitted that the petitioner again served legal notice dated 09.04.2009 calling upon the respondent to pay/tender the whole of the legally recoverable rent @ Rs.530/- per month along with arrears of rent within two months from the date of receipt of legal notice. The tenancy stood terminated with effect from 31.05.2009 and the respondent was directed to hand over the vacant physical possession to the petitioner on or before 31.05.2009 failing which the respondent is being treated as trespasser and liable to pay damages @ Rs.5500/- per month to the petitioner. The legal notice was received by the respondent but he failed to comply with the same till date.
2.3 Despite expiry of notice period, the respondent neither paid/tendered the whole of legally recoverable arrears of rent nor vacated/handed over the possession of the tenanted shop to the petitioner till date. The tenant further violated the terms and conditions of the said agreement including clause No.10 of the said agreement. Hence, the instant petition for eviction on ground of non-payment of arrrears of rent under section 14 (1) (a) of DRC Act as amended up-to date.
FACTS OF THE WRITTEN STATEMENT
3. Notice of the eviction petition was sent to the respondent and thereafter, the respondent was directed to file the Written Statement which was filed accordinglhy.
(NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 3 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh 3.1 During the pendency of the petition, an application under order 6 rule 17 CPC was moved by the respondent for amendment of Written Statement which was allowed vide order dated 28.10.2013. Accordingly, amended Written Statement was filed on behalf of the respondent.
4. In the amended Written Statement filed on behalf of the respondent, the respondent has stated that the present petition is not in accordance with the DRC Rules 1959 and therefore, is not sustainable and liable to be dismissed. It is submitted that without prejudice to the rights and contentions of the respondent the alleged Will and MOU do not bear the number of the premises in question. The petitioner has no right to serve any notice including alleged notice dated 25.02.1994 upon the respondent. It is submitted that none of the alleged legal heirs of Late Sh. Amar Singh Sabharwal is the owner/landlord of the premises in question and also they have no right to file the present petition against the respondent. It is submitted that there is no relationship of landlord and tenant between the parties and the present petitioner has no right, title and interest in the premises in question. 4.1 It is further submitted that the respondent was under the impression that landlord Sh. Amar Singh Sabharwal could be the owner of the shop in dispute, however, it came to the knowledge of the respondent that the said shops were situated on Government Land and the respondent Sh. Amar Singh Sabharwal was never the owner of the shop in question. It is submitted that since the father of the petitioner namely Amar Singh Sabharwal was not the owner of the shop in question hence, the petitioner also could not become owner (NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 4 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh herself. The said alleged will has not become final as the same is under challenge before the Probate Court. The petitioner has not filed complete chain of documents to show and suggest that he is the owner/landlord of the property and in the absence of requisite documents, the petitioner cannot claim that he is the owner/landlord of the property in dispute. It is further submitted that the present petitioner and his brothers/sisters/relatives were not in the amicable terms and no one knows who was/is the real owner/landlord of the property. The respondent undertakes to pay the legally recoverable dues if any to the actual/real owner/landlord of the property. Rest of the contentions of the petition have been denied in toto and it has been prayed for dismissal of the present application. 4.2 During pendency of petition, the petitioner expired and an application under order 22 rule 3 read with 151 CPC was moved which was allowed vide order dated 11.08.2023 and legal heir of the petitioner was impleaded accordingly.
REPLICATION
5. Replication has been filed on behalf of the petitioner to the amended written statement of the respondent. It has been submitted that late Avtar Singh expired without proper administration of letter of administration and therefore, the MOU was executed to resolve all disputes. The MOU could not be executed only in respect to the property bearing no. L-70, Kalkaji which was left unadministered and therefore, application under section 258 of Indian Succession was filed to appoint new administration which is pending disposal before the Court of Sh. Manish Yaduvanshi, Ld. ADJ, Delhi. The petitioner (NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 5 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh denied all the allegations levelled by the respondent and reiterated and reasserted all the facts as stated in the petition.
EVIDENCE OF PETITIONER
6. The petitioner examined her husband Anurag Malik as PW-1 who tendered affidavit Ex. PW-1/A in his evidence and relied upon following documents in his evidence :-
Exhibits/Mark Documents
Ex.PW1/1 Death Certificate dated 17.07.2015 of
Sh. Amrik Singh Sabharwal
Ex.PW1/2 GPA dated 02.04.2022
Ex.PW1/3 Rent agreement dated 07.05.1981
Ex.PW1/4 Certified copy of will dated 06.09.1989
Ex.PW1/5 Certified copy of judgment dated
02.03.1993
Ex.PW1/6 Copy of notice dated 25.02.1994
Ex.PW1/7 UPC receipt dated 20.03.1994
Mark A (earlier Ex.PW1/8) MOU dated 22.05.2008
Ex.PW1/9 Site plan dated 04.07.2009
Ex.PW1/10 Legal notice dated 09.04.2009
Ex.PW1/11 Copy of courier receipt
Ex.PW1/12 Copy of delivery receipt dated
10.04.2009
6.1 Thereafter, petitioner's evidence was closed vide order
dated 12.04.2022.
EVIDENCE OF RESPONDENT
(NEETU NAGAR)
ARC-02 (Central), THC,
11.08.2023 Page no. 6 of 25
No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh
7. The respondent Inder Singh examined himself as RW-1 and tendered affidavit Ex. RW-1/A in his evidence and relied upon following documents in his evidence :-
Exhibits/Mark Documents
Ex.RW1/1 Internet generated copy of the order
dated 20.04.2010 of Hon'ble High
Court of Allahbad
Ex.RW1/2 Internet generated copy of the order
dated 18.02.2020 of Hon'ble High
Court of Allahbad
Ex.RW1/3 Certificate U/s 65B of Evidence Act
Thereafter, respondent's evidence was closed vide order dated 02.08.2022.
ARGUMENTS
8. I have heard the arguments at length. Written arguments have also been filed on behalf of the petitioner. I have also carefully gone through the testimonies of the witnesses, documents and material on record and case law relied upon.
LAW ON SEC. 14(1) (a) D.R.C. ACT:-
9. It is expedient to reproduce the relevant provision of Delhi Rent Control Act so that position may be crystal clear:-
"Section-14. Protection of tenant against eviction-
(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any (NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 7 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh premises shall be made by court or any controller in favour of the landlord against a tenant: Provided that the controller may, on an application made to him in the prescribed manner, make an order for 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 arrears of the rent legally recoverable from him within two months of the day 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)."
10. As such, the following are the ingredients of Section 14 (1) provisio (a):-
(I) relationship of landlord and tenant; (II) existence of arrears of rent legally recoverable on the date of notice of demand; (IlI) service of notice of demand in the manner provided in Section 106 of the Transfer of Property Act; and (IV) failure of the tenant to pay or tender the whole of the arrears of rent legally recoverable from him within two months of the date of service of notice.
11. Let us discuss the ingredients of Section 14 (1) (a) of DRC Act one by one:-
(i). RELATIONSHIP OF LANDLORD AND TENANT:-
(NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 8 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh 11.1 Firstly, we need to determine whether there exists relationship of landlord and tenant between the parties to the present petition. In order to substantiate the same, the petitioner has relied upon rent agreement dated 07. 05. 1981 Ex.PW1/3. The said rent agreement is not disputed and admitted between the parties. It is also admitted that the respondent is in possession of the tenanted premises since around 1980 as a tenant. By virtue of the said rent agreement, it stands duly established that there existed relationship of landlord and tenant between late Sh. Amar Singh and respondent. 11.2 The petitioner has then relied upon the certified copy of will dated 06.09.1989 Ex. PW-1/5, executed by late Sh. Amar Singh in favour of his four sons and three daughters and Sh. Avtar Singh has been made the executant of the said will. Ex PW1/5 is copy of judgment dated 02.03.1993 by virtue of which letter of administration was issued in the name of late Sh. Avtar Singh. In the said documents as well, the name of father of late Sh. Avtar Singh and that of petitioner has been reflected as son of late Sh. Amar Singh. The said documents are not disputed between the parties. The main contention of the respondent is that late Sh. Amar Singh was not the grandfather of the petitioner but there is no proof regarding the same. Much reliance was placed upon the testamentary case no. 32/2009 Ex. RW-
1/1 and Ex. RW-1/2 filed before Hon'ble Allahabad High Court in respect of the property at Noida which has been filed by one Sh. Daya Nand Misra S/o Late Sh. Lakhan Mishra stating that Daya Nand Mishra is the sole and exclusive legal heir of late Shri Amar Singh and (NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 9 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh letter of probate of the Will has been granted in his favour vide order dated 20.04.2010. Admittedly, late Sh. Amrik Singh has duly contested the above mentioned case bearing no. 32/2009 Ex. RW-1/2. It is pertinent to mention that the said litigation is pending in regard to the property at Noida and not the tenanted shop which has been rightly pointed out by learned counsel of the respondent. It has been argued by learned counsel of the respondent that since the litigation which is pending before Hon'ble Allahabad High Court wherein the will in respect of Dayanand Mishra is under challenge, hence, it is disputed that the present petitioner is the legal heir of late Sh. Amar Singh. To my mind, even if, it is assumed that the will Ex.PW1/4 is doubtful even in that scenario as well, the rent agreement Ex.PW1/3 is not disputed. Furthermore, the respondent himself has admitted Late Sh. Amrik Singh as legal heir of Late Sh. Amar Singh in the Written Statement. Furthermore, the respondent himself has admitted Late Sh. Amrik Singh as legal heir of Late Sh. Amar Singh in the Written Statement stating that when the father of petitioner namely Amar Singh Sabharwal was not the owner then the petitioner also could not become owner thereof. Hence, relationship of late Sh. Amrik Singh and late Sh. Amar Singh as son and father stands proved by admission of respondent himself.
11.3 It has been contended on behalf of the respondent that the petitioner has disclosed in the present petition that Avtar Singh had obtained letter of administration, but objections have been filed in the said petition and the same is still pending. Hence, it was argued that no probate has been granted as alleged and the same is under dispute (NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 10 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh as there is no final order passed in the said case. No objections as such have been placed by the respondent to prove the said plea. Even if the said plea is admitted to be correct, to my mind, the respondent cannot take advantage of the litigation which is pending between the legal heirs.
11.4 In the case of Bharat Bhushan Vij vs. Arti Techchandani, 2008 (153) DLT 247 in paras 4 and 5 it was held as under :
"4. The concept of ownership in a landlord- tenant litigation governed by the Delhi Rent Control Act, has to be distinguished from the one in a title suit. If the premises was let out by a person and after his death, the premises has come in the hands of beneficiary under a Will, the tenant has no right to challenge the title of such a beneficiary. If on the death of the original owner the tenant has any doubt as to who was the owner of the premises, he is supposed to file an interpleader suit impleading all the legal heirs of the deceased and ask the Court to decide as to who shall be the landlord/owner after the death of the original owner. Where no interpleader suit is filed by the tenant and the tenant continues in possession after death of the original owner without demur and without raising an (NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 11 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh objection against the person, who claims to have inherited the property under the Will, he later on cannot challenge the ownership of such a person. It is not the domain of the tenant to challenge the Will of the deceased landlord. If a landlord is able to show that there is a testament in his/her favour, he/she is deemed to have discharged his/her burden of proving the ownership under the Act. If the tenant takes a frivolous objection about ownership, such an objection cannot be entertained unless the tenant comes forward as to who was the landlord/owner of the premises and to whom he has been paying rent after the death of the original owner."
11.5 In the present case, no interpleader suit has been filed by the respondent. There is complete silence on who was the landlord and to whom the respondent was paying rent after death of original landlord late Sh. Amar Singh in the written statement as well as evidence affidavit of respondent.
11.6 It has been next pleaded by the respondent that he was under
the impression that the tenanted premises is owned by Late Sh. Amar Singh but the same is government land. To my mind, the respondent cannot now challenge the title of late Sh. Amar Singh on the ground that the suit premises did not even belong to him and that the tenanted (NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 12 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh premises is government land as there is no document regarding the said plea.
11.7 Moreover, there is estoppel under the provisions of section 116 of the Indian Evidence Act as the tenant cannot challenge the title of the owner /landlord however defective it is. Reliance can be placed on case law titled as Atyam Veerraju v.Pechetti Venkanna (1996) 1 SCR 831, wherein the Hon'ble Supreme Court quoted with approval the judgment of the Privy Counsel in Bilas Kunwar v. Desraj Ranjit Singh, wherein it was observed as follows:
"A tenant who has been let into possession cannot deny his landlords title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord."
11.8 In the case titled as Sri Ram Pasricha Vs. Jagan Nath & Ors 1976 AIR 2335, the Hon'ble Apex Court observed :-
"the relationship between the parties being that of landlord and tenant,only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord Under section 116 of the Indian Evidence Act. The tenant can not deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between the landlord and tenant question of title to the leased property is irrelevant."
(NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 13 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh 11.9 Furthermore, in the case titled as Subhash Jain vs. Ravi Sehgal in RC Rev. No. 292/2013, the Hon'ble High Court of Delhi observed as under :-
"The other objection of the petitioner is also without any force that the sale deed dated 29th March, 1993 is a sham document. The petitioner cannot object the history of ownership of the suit property in view of the provisions of Section 116 of the Indian Evidence Act, as the tenant has no right to challenge the ownership of the landlord as he has not a contender to the suit property."
11.10 Similarly, in the case of Ramesh Chand vs. Uganti Devi, 157 (2009) DLT 450 and Shanti Sharma vs. Ved Prabha, 1987 RLR 526 SC, it was held that it is not the concern of the tenant as to how the landlord acquired the property. 11.11 It is also important to reproduce Section 27 of DRC Act which reads as follows:-
"27. Deposit of rent by the tenant.-(1) 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 to the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner:
(Provided that in cases where there is a bona fie doubt as to the person or persons to whom the rent is (NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 14 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh payable, the tenant may remit such rent to the Controller by postal money order.)"
11.12 Hence, if on the death of the landlord, a dispute has arisen between his legal representatives it did not absolve the tenant from paying the rent. The tenant cannot take the plea that he did not know to whom the rent was to be paid after the death of the landlord as he could have deposited the rent in court as provided in section 27 DRC Act. There is no document or record pertaining to remedy under section 27 DRC Act which is availed by the present respondent. Moreover, the pleadings on behalf of the respondent seems to be contradictory. The respondent has alleged that none of the legal heirs of late Shri Amar Singh is the owner/landlord of the premises in question and they have no right to file the present petition against respondent and on the other hand, the respondent wants to rely upon the testamentary case filed by Sh. Daya Nand Mishra wherein it is his case that late Sh. Amar Singh died issueless and his wife had predeceased him. The respondent enjoyed the tenancy throughout life of late Sh. Amar Singh and now challenging the same on the ground that he was not the owner and the tenanted shop is situated on government land which cannot be allowed to be raised. Even if the Will Ex. PW-1/4 has not become final being in challenge in the probate court and letter of probate having been obtained by one Daya Nand Mishra as legal heir of late Sh. Amar Singh, the same cannot be taken advantage of by the present respondent. 11.13 It has been next argued on behalf of learned counsel of (NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 15 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh the respondent that there is no mention in the will as well as memorandum of understanding regarding the shop in dispute. To my mind, the said argument is without any merit as it has been categorically mentioned in both the will as well as memorandum of understanding that property bearing no. 661 is measuring 400 yd.² and same is further sub divided into plot bearing number 661, 661/2, 660 and 664/2. Hence, property bearing number 660 has been categorically mentioned in both the documents though specific numbers 660/C and 660/A have not been mentioned particularly therein. But it has not been doubted by the respondent anywhere that the property bearing number 660/C and 660/A are not part of property bearing number 660 which itself is part of property bearing no.661. 11.14 It has been further contended on behalf of the respondent that the complete chain of documents to establish title of petitions qua the tenanted premises and the revised site pan as mentioned in memorandum of understanding and forming part thereof is also not placed on record. To my mind, there is no requirement to file the same as it is settled law that the respondent cannot challenge the title of the owner. If a landlord is able to show that there is testament in his favour, he is deemed to have discharged his burden of proving ownership under DRC Act. The word 'owner' is not used in the Act in the context of an absolute owner. The phrase 'owner' implies that the owner should be something more than the tenant. Herein, the petitioner has proved Will Ex. PW-1/5 and MOU Mark A to show that he has better title than respondent. Moreover, none of the (NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 16 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh other legal heirs as mentioned in the Will or MOU has been examined by the respondent to prove that there was no such memorandum of understanding executed and that the legal heirs mentioned therein are challenging the title of present petitioner or have any objection related thereto or ever gave him notice or made any demand of rent from him. 11.15 Furthermore, it has come in the admission of the respondent during his cross examination that he used to pay rent to Amrik Singh, but he did not remember the duration for which he has paid the same. After receiving the notice from the court, he stopped making payment of rent to Amrik Singh and on the direction of the honourable court had paid the arrears of rent for the last three years in the court. Meaning thereby that it was Amrik Singh to whom the rent was being paid and had he not been related to Late Sh. Amar Singh then there was no requirement to pay the rent to him by the respondent.
11.16 It was next argued by the learned counsel of respondent there is no authority in favour of Mr Anurag Malik to depose in the present case. A perusal of the GPA Ex. PW-1/2 categorically shows it has been mentioned therein to take any steps for the prosecution of the cases and any other incidental proceedings meaning thereby that the present witness PW1 has been authorised to depose in the present case and the contention of learned counsel of the respondent in this regard is totally vague.
11.17 It has been further argued by learned counsel of the respondent that PW1 is not even aware about the maximum facts. The (NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 17 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh witness has categorically deposed that he got the knowledge from late Sh Amrik Singh and that he did not have any personal knowledge regarding the factual position of the present case except for what was told to him by his late father-in-law Amrik Singh. It was suggested to the said witness that both the property bearing number 660/A and 660/C are not mentioned in the will or memorandum of understanding To my mind, the said suggestion will not affect the present case as property bearing number 660 is correctly mentioned therein. It is not the case of the respondent that property bearing number 660 A and 660 D have no connection with the property bearing number 660 Anand Parbat, New Delhi. It has been contended by learned counsel on behalf of the respondent that the property at Noida has not been included in the petition filed for probate in Delhi. But order dated 02.03.1993 in this regard is very much clear it as has been clearly mentioned that since the property in Noida is outside Delhi, hence no orders regarding the same could be passed. 11.18 Surprisingly, earlier the landlord and tenant relationship has been admitted between late Sh. Amar Singh and respondent in the previously filed written statement, though the said admissions have been withdrawn in the amended written statement. Hence, relationship of landlord and tenant stands established between the present petitioner who in turn is the legal heir of late Sh. Amrik Singh who in turn is the son of late Sh. Amar Singh, the original landlord and the present respondent.
II. SERVICE OF LEGAL DEMAND NOTICE (NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 18 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh
12. It is the case of petitioner that legal demand notice has been duly served on the respondent. Whereas, it is the defence of the respondent that no legal notice dated 09.04.2009 and notice dated 25.02.1994 has been received by him. It has been deposed by the respondent that he has not received legal notice dated 25.02.1994 from Amrik Singh by registered AD and UPC. It has been argued vehemently by learned counsel of the respondent that the respondent has not been served in the present matter.
12.1 It is pertinent to reproduce section 27 of General clauses Act which is as under :-
Section-27--Meaning of service by post--where any central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
12.2 In the case titled as K. Bhaskaran vs. Sankaran (NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 19 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh Vaidhyan Balan 1999 A.I.R SC 3762, the Hon'ble Supreme court observed :-
"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."
12.3 Further, section 114 of Indian Evidence Act, 1972 lays down as under:-
114: Court may presume existence of certain facts. That the court may presume existence of any fact which it thinks likely to have happened, regard being head to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations:
The court may presume-
(a)...
XXXXXXX
(f) That the common course of business has been followed in particular cases; -
XXXXXXXX but the court shall also have regard to such facts as the following, in considering whether such maxim do or do not apply to the particular case before it:-"
XXXXXXXXX As to illustration (f): The question is whether a (NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 20 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;
As to illustration (g).....
As to illustration (h).....
As to illustration (i)........"
13. It is well settled law that this presumption is a rebuttable presumption. If there is any such circumstance weakening such presumption, it cannot be ignored by the court.
14. I have carefully and minutely gone through the record which shows that the respondent has merely made the bald averments in respect of non receiving of such legal demand notice given by the petitioner but has done nothing to prove it. It was the duty of the respondent to prove that he was not served by such notice, but he failed to rebut the evidence and documents of petitioner in respect of legal demand notice. Mere denial by the tenant does not rebut presumption raised under section 114 (f) of Indian Evidence act. The tenant must produce some other evidence to show that the usual course of the post was interrupted by disturbances. He must prove other circumstances to show that the notice never reached the addressee. Further, the respondent has wrongly questioned the entitlement of the petitioner to issue demand notice to the respondent in view of discussion on relationship of landlord and tenant between the parties.
As such, service of legal demand notice as stipulated (NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 21 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh under section 14 (1) (a) of DRC Act is also proved.
III. NON-PAYMENT OF RENT
15. It has come in the evidence of the respondent that he used to pay the rent to Amrik Singh but he did not remember up to which date he had paid the rent though after filing the present petition he has deposited the same in the court. It is the duty of the tenant to find the landlord and to pay rent to him. But in the present case, no document has been placed on record to prove the same. Hence, the respondent neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the receipt of notice or demand.
16. As such, it is clear that this ingredient under section 14 (1) (a) of D.R.C. Act is also satisfied.
17. Perusal of record shows that order dated 10.10.2014 under section 15 (1) of DRC Act was passed by dint of which the respondent was directed to pay the rent @ Rs. 530/- per month to be deposited by 15th day of each succeeding month till further orders. The respondent was further directed to pay arrears of rent ever since notice dated 25.02.1994 as claimed in the petition, to the date of filing of the present petition @ Rs. 530/- per month within one month from the date of order. The said order was challenged by the respondent. Accordingly, vide order dated 01.12.2014 passed by Ld. District and Sessions Judge (West), it has been mentioned as follows:-
"The matter is fixed for the date 12.01.2015 (NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 22 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh and taken up in view of application filed on behalf of the appellant dated 29.11.2014 seeking clarification. Inter alia it has been submitted on behalf of the appellant that even as per the admitted rate of rent qua agreement with Amar Singh Sabharwal, it was only Rs. 230/- per month and that the Eviction has been filed on 15.07.2009 and that the direction for payment of rent as directed vide the impugned order dated 10.10.2014 from the period as demanded vide notice dated 25.02.1994 would be time barred beyond a period of three years as allowed to be claimed vide the impugned order in terms of law.
Without any observation on the merits or demerits of the case, on a perusal of record, order dated 27.11.2014 in ARCT 31/14 is modified to the effect that the notice of appeal is directed to be issued to the respondent as directed thereby, subject to deposit of rent w.e.f August 2006 @ Rs. 230/- per month by the 15th December, 2014 in the Ld. Court of ARCT concerned.
The report of the Nazir qua the compliance of the same be called for the date 12.01.2015. Copy of this order be sent to the Ld. Trial Court."
18. Further, vide order dated 22.01.2020 of Ld. District and Sessions Judge (West), the order dated 10.10.2014 was modified from one under section 15 (1) of the DRC Act to under section 15 (4) of (NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 23 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh DRC Act without prejudice to the rights and contention of the parties to the main petition. The case was remanded back to the Ld. ARC concerned for further disposal as per law. The respondent was directed therein to deposit monthly rent @ Rs. 230/- per month with interest @ 15% per annum w.e.f 16.04.2014 till date before the Ld. ARC under section 15 (4) of DRC Act within one month from the date of order and continue to deposit such rent on month to month basis by 15 th of each succeeding month till disposal of the eviction petition. The Ld. ARC was further directed to pass appropriate directions after considering the merits of the case for realization or refund of the amount hitherto deposited or to be deposited at the final stage of the trial.
19. Hence, there is no requirement of passing any direction regarding refund of the amount deposited by the respondent. Hence, the present petition being filed on 15.07.2009 as such under law the petitioner is entitled to the rent for the period from three years preceding the date of filing the petition at the rate of Rs. 230/- per month along with interest @ 15% per annum w.e.f 15.07.2006 till date to the petitioner within one month from the date of this judgment and he is further directed to pay or deposit future rent at the same rate to the petitioner month by month on or before 15th day of each succeeding English Calendar month.
CONCLUSION:-
20. In view of the aforesaid discussion and settled proposition of law, this court has come to the conclusion that the petitioner has (NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 24 of 25 No. 80645/16 Amrik Singh Sabharwal Vs. Inder Singh satisfied all the ingredients of Section 14(1)(a) of D.R.C. Act in respect of the tenanted premises i.e. Shop No.660/C measuring 170 Sq. Fts. Approx. Situated at Chowk Military Road, Anand Parbat, New Delhi as shown red in the site plan. Hence, eviction petition filed by petitioner against the respondent under section 14 (1) (a) of the DRC Act is allowed.
21. Nazir is directed to file his report on 26.10.2023 whether the respondent has deposited the rent in compliance of order dated 01.12.2014 and 22.01.2020 passed under section 15 (4) of DRC Act ans also regarding compliance of the direction passed today regarding payment of rent. A copy of the judgment be placed in the miscellaneous file. No order as to cost.
22. Miscellaneous file be prepared for ascertaining the benefits U/Sec. 14(2) of the D.R.C. Act.
23. File be consigned to Record Room after due compliance.
NEETU Digitally signed by NEETU NAGAR NAGAR Date: 2023.08.11 17:02:53 +0530 (NEETU NAGAR) ARC-02 (Central) Tis Hazari Courts, Delhi (Announced in open court on 11.08.2023) (This judgment contains 25 pages) (NEETU NAGAR) ARC-02 (Central), THC, 11.08.2023 Page no. 25 of 25