Delhi District Court
Amarjeet Athotra vs Maninder Singh on 18 October, 2011
IN THE COURT OF SH. R.K. GAUBA: DISTRICT JUDGE
(SOUTH) - CUM - ADDITIONAL RENT CONTROL
TRIBUNAL, SAKET, NEW DELHI
ARCT No. 36/2010
ID No.: 02406C0377672010
1. Amarjeet Athotra
s/o Sh. Gyan Chand
R/o WZ844, Rishi Nagar,
Shakurbasti, Delhi.
2. Ravinder Kumar Athotra
s/o Sh. Gyan Chand,
R/o 837/1, Jangpura Road,
Bhogal, New Delhi. ... Appellants.
Versus
1. Maninder Singh.
2. Sardool Singh,
Both sons of Sh. Trilok Singh,
R/o H. No. 19, Church Road,
Bhogal, New Delhi. ... Respondents.
Instituted on: 29.11.2010.
Judgment reserved on: 18.10.2011
Judgment pronounced on :18.10.2011
ARCT No. 36/2010 Amarjeet Athotra & anr. Vs. Maninder Singh & anr. 1 of 19
J U D G M E N T
1. This appeal under Section 38 of Delhi Rent Control Act (hereinafter referred to as the "DRC Act") is directed against judgment dated 15.09.2010 passed by Sh. Sandeep Yadav, Rent Controller (South) in eviction case registered as E101/2008. Vide the impugned judgment, the learned Rent Controller on the basis of evidence led before him returned the findings in favour of the respondents (petitioners before him) against the appellants (respondents in the eviction petition) and on that basis modified the order under Section 15(1) DRC Act earlier passed on 30.09.2004, thereby calling upon the appellants to pay to the respondents herein or deposit in the court arrears of rent at the rate of Rs. 1,000/ per month with effect from 01.07.2002 till the date of the said judgment within one month thereof and also to continue to pay rent at the said rate by 15th of each succeeding month and it being the case of first default extending the protection under Section 14(2) DRC Act.
2. The appeal was preferred on 27.11.2010 and, therefore, with some delay. It was accompanied by an application under Section 5 of Limitation Act seeking condonation mainly on the ARCT No. 36/2010 Amarjeet Athotra & anr. Vs. Maninder Singh & anr. 2 of 19 grounds that the appellants are not so educated and, therefore, unaware of the legal intricacies and having been kept pre occupied in their business, they did not realise that the appeal was to be filed within the period of 30 days and that they realised later in the context of another case and thereafter steps were taken and the appeal was preferred.
3. On notice, the respondents have appeared to contest the application for condonation of delay and also the appeal on merits.
4. I have heard Sh. J. C. Mahendru, advocate for the appellants and Sh. M. L. Mahajan, advocate for the respondents. I have gone through the record.
5. Though the counsel for the respondents initially vociferously contested the application for condonation of delay, midway the hearing, he conceded that appeal may be heard on merits. In the facts and circumstances, the delay is condoned and the appeal is taken up for hearing on merits.
6. The eviction petition was preferred before the Rent Controller on 09.12.2003 by the respondents against the appellants describing them as joint tenants, though in two portions in which premises is stated to have been divided. The relationship ARCT No. 36/2010 Amarjeet Athotra & anr. Vs. Maninder Singh & anr. 3 of 19 of landlord and tenant between the respondents on one hand and the appellants on the other hand has come to be admitted during the course of trial before the Rent Controller. Though, reference has been made even in the course of evidence to the original letting out of the premises described as shop at the ground floor in property no. 837/1, Jangpura Road, Bhogal, new Delhi14 as depicted in the site plan Ex. P1, having been made in favour of father of the appellants some time in 1954 at the rate of Rs. 90/ per month by the then owner of the property Mr. Mangat Ram Gupta, the father of the appellants having died in 1982 and after the death of even Mr Mangat Ram Gupta, his legal heris having sold the property in favour of the respondents herein and the appellants having attorned in their favour, the jural relationship of landlord and tenant between the respondents herein and the appellants herein is admitted on all sides and is no longer subject matter of controversy.
7. In these circumstances, for the sake of convenience, the respondents herein shall hereinafter be referred to as the landlord and the appellants as the tenants qua the demised premises.
8. The landlords alleged in the eviction petition before the Rent ARCT No. 36/2010 Amarjeet Athotra & anr. Vs. Maninder Singh & anr. 4 of 19 Controller that the rate of rent was Rs.160/ per month and after the purchase of the property certain improvements and extensive repairs had been carried out and in the wake of the said developments, it was agreed between the parties to raise the rent to Rs. 1,000/ per month. It was claimed that the rent used to be paid by the appellant no.2 to respondent no.1 who used to issue rent receipt accordingly, the counter foil also being signed at the time of such payment by the appellant no.2. The landlords alleged that the tenants had paid rent at the rate of Rs. 1,000/ per month for the month of June, 2002 in which regard a proper rent receipt was issued, acknowledging the payment of Rs. 1,000/ and also counter foil signed by the appellant no.2. It was alleged that the tenant had thereafter stopped paying the rent and run into arrears with effect from 01.07.2002 and inspite of demand notice dated 12.09.2003 sent by UPC and registered post and delivered on or about 15.09.2003 had neither paid nor tendered the arrears nor sent any reply to the demand notice. The landlord, thus, sought eviction order against the tenants under Section 14(1)(a) DRC Act.
9. The tenants contested the petition before the Rent Controller ARCT No. 36/2010 Amarjeet Athotra & anr. Vs. Maninder Singh & anr. 5 of 19 through written statement filed on 21.07.2004. The contest was basically on the ground that an agreement had been entered into between the two sides on 30.03.2000 respecting repairs and improvements etc. and in that agreement it was specifically settled that there shall be no enhancement of rent for a period of three years and that rent shall continue to be payable at the rate of Rs. 160/ per month apart from electricity charges. The tenancy thus, continued at the rate of rent of Rs. 160/ per month. They claimed that the landlords had "illegally got created and mischievously manipulated a false receipt" on the basis of which it was being claimed that the rate of rent was Rs. 1,000/ per month. They claimed that the signatures of appellant no.2 had been obtained on the counter foil acknowledging the payment of Rs. 1,000/ for the month of June, 2000 by playing fraud upon him and that the receipt, therefore, was of no consequence. The tenants did not specifically deny the receipt of the demand notice dated 12.09.2003 and would rather vaguely state that the alleged notice of demand was of no consequence.
10. The landlords filed rejoinder reiterating their case before the Rent Controller and controverting the defence raised by the ARCT No. 36/2010 Amarjeet Athotra & anr. Vs. Maninder Singh & anr. 6 of 19 tenants.
11. The Rent Controller considered the question of order under Section 15(1) DRC Act on the basis of above mentioned pleadings. The order was passed on 30.09.2004, whereby the tenants were directed to pay or deposit the entire arrears of rent at the rate of Rs. 1,000/ per month with effect from 01.07.2002 within 15 days of the said order. The tenants had claimed having deposited certain money under Section 31 of Punjab Relief & Indebtedness Act. The Rent Controller allowed deduction of the said amount thus deposited.
12.Both sides took out appeals against the order dated 30.09.2004 vide MCA No. 504/04 and MCA No. 487/04. Both appeals were heard together and decided vide a common judgment dated 28.01.2005 passed by Sh. S. M. Chopra, Additional Rent Controller Tribunal (ARCT). While the appeal of the landlords questioning the directions respecting the deposit under the Punjab Act was dismissed, the appeal of the tenants was allowed thereby modifying the order under Section 15(1) DRC Act so as to require the tenants to pay or deposit the arrears of rent at the rate of Rs. 160/ per month only as had been admitted in the pleadings to be the rate of rent.
ARCT No. 36/2010 Amarjeet Athotra & anr. Vs. Maninder Singh & anr. 7 of 19
13.The eviction petition was put to trial by the Rent Controller against the above mentioned backdrop. The landlords examined the respondent no.1 as PW1 on the basis of his affidavit Ex. PX and Chaman Lal, Civil Nazir in the court of Senior Civil Judge as PW2. Both the respondents, on the other hand, have appeared as RW1 and RW2 respectively tendering their examinationinchief through affidavit Ex. RW 1/A and RW 2/A respectively. All the witnesses were crossexamined at length by the opposite side.
14.On the basis of appraisal of the evidence thus led, the Rent Controller vide his judgment dated 25.09.2010 concluded that the rate of rent was Rs. 1,000/ per month with effect from June, 2002 and that the tenants had run into arrears with effect from July, 2002 and they, in his assessment, not having paid or tendered the said arrears in spite of service of the demand notice, interim order under Section 15(1) DRC Act was modified on the terms noted earlier and directions thereupon issued accordingly.
15.The tenants are aggrieved and have come up with this appeal mainly to question the findings as to the rate of rent with which liability they have been now sought to be bound by the Rent ARCT No. 36/2010 Amarjeet Athotra & anr. Vs. Maninder Singh & anr. 8 of 19 Controller.
16.The landlords have contested the appeal not only on the grounds that the findings recorded by the Rent Controller are correct and on proper appraisal of the evidence led but also on the ground that the appeal against the findings of facts cannot be entertained in as much as the provisions of Section 38 DRC Act now restrict the appeal to be heard "only on question of law". In this context the landlords have placed reliance on Shyam Sunder Dania & anr. Vs. J. D. Kapoor & anr. [136(2007)DLT219], Sushil Puri & ors. Vs. Jai Gopal & ors [135(2006) DLT 90], and Kulwant Singh Vs. Arjun Singh [2006 Law Suit (Del) 1805]. The argument in answer to this objection is that if the findings recorded by the Rent Controller are perverse, the appeal still can be pressed and heard.
17.One objection that was taken before the Rent Controller was that the tenants had not been properly described in the eviction petition, their last name having been mentioned "Alhotra" whereas they are known by the last name of "Athotra". The submission on behalf of the tenants is that despite this objection being taken, the landlords did not carry out any correction and, ARCT No. 36/2010 Amarjeet Athotra & anr. Vs. Maninder Singh & anr. 9 of 19 therefore, entire proceedings are vitiated, they having been prosecuted against the persons other than tenants.
18.I have considered the above mentioned submissions but I am not persuaded to take any adverse view towards the landlords on this account. While it is true that the landlords have failed to take necessary steps for suitable correction of the clerical error in the cause title, they do not deserve to be nonsuited at this distance of the time in the face of the fact that the persons who are actually tenants and recognised by both sides, actually appeared and contested the proceedings and have come up before this court exercising their right of appeal. Therefore, only because there was misdescription in the pleadings, there shall not been any doubt as to the correct identity of the tenants. Be that as it may, the cause title shall be now read as corrected, so as to treat the appellants by their correct name and description.
19.For removal of doubts, if any persist in future, the landlords shall file the corrected memo of parties on the record of the Rent Controller.
20.The contention of the tenants basically is that in the face of the agreement dated 30.03.2000, the rent could not have been ARCT No. 36/2010 Amarjeet Athotra & anr. Vs. Maninder Singh & anr. 10 of 19 increased. Copy of the agreement dated 30.03.2000 has come on record vide Ex. PW 1/D1, execution whereof is not in dispute. The agreement, interalia, does stipulate that the rent shall continue to be paid at Rs. 160/ per month excluding electricity charges and that no enhancement of rent could be sought by the owner for the period of three years from the date of the said agreement. Admittedly, the increased rent of Rs. 1,000/ per month as claimed by the landlords is before the expiry of the said period of three years, mainly pertaining to the month of June, 2002. The tenants have contended that the landlords have played fraud in getting the signatures of the appellant no.2 on the counter foil on the receipt of June, 2002. The fact that the counterfoil does bear the signatures of the appellant no.2, copy of which has been proved as Ex. P3, is undisputed. If any doubt were to persist, clear admission in this regard came even during the crossexamination of RW2, though RW1 would give vague replies on the subject. The fact that the counter foils have always been signed by the appellant no.2 is also not disputed. The counter foil for the immediately preceding period has been proved as Ex. P2 by way of illustration.
ARCT No. 36/2010 Amarjeet Athotra & anr. Vs. Maninder Singh & anr. 11 of 19
21.The learned counsel for the tenants in the course of submissions referred to certain observation of ARCT while deciding the earlier appeal through judgment dated 28.01.2005. It appears that ARCT sitting in appeal over the interim order under Section 15(1) DRC Act had recorded that there are circumstances giving rise to a legitimate "prima facie" view that it appears to be a case of "clear cut calculated mischief on the part of the landlords" because under the agreement of March, 2000, it was the landlords and their collaborators who were to be benefited with the construction to be raised over the shops in tenancy and whatever renovation work was to be done to the premises in the tenancy was intended to support the construction over the tenancy premises and, therefore, there was no material benefits at the instance of the landlords to the tenants which may have prompted the tenants to increase the rent from Rs. 160/ per month to Rs. 1,000/ per month.
22.With due respect to the views expressed by ARCT in the judgment dated 28.01.2005, I am unable to read the agreement in question in the manner done at the said earlier stage of the proceedings. It does appear that on account of collaboration agreement, the landlords were to gain. But, it is not proper to ARCT No. 36/2010 Amarjeet Athotra & anr. Vs. Maninder Singh & anr. 12 of 19 proceed on the assumption that the tenants did not gain at all from the said arrangement. It is clear from the document that the said exercise had resulted in renovation of the shop and some improvements being carried out. The fact that works were carried out to create improvements has not been contested during the proceedings before the ARCT.
23.Even otherwise, what was expressed by the ARCT in the judgment dated 28.01.2005 was nothing but a "prima facie view" which cannot bind either the Rent Controller or this court in as much as, in the final analysis, view is to be taken on the basis of evidence that has been led which evidence was not before the Rent Controller or ARCT at the time the interim order was passed.
24.The tenants appear to have approached the civil court around same time as these proceedings were taken out to raise questions with regard to the authenticity of the rent reciept. The said civil suit is still pending adjudication before the concerned civil court. To my mind, pendency of the said civil suit cannot come into the way of the adjudication by the authorities under the Rent Control Act on the basis of material adduced here. In this context, I would agree with the ARCT No. 36/2010 Amarjeet Athotra & anr. Vs. Maninder Singh & anr. 13 of 19 submissions of the counsel for the landlords that the bar contained under Section 50 DRC Act would cover even the question of fact as to the authenticity of the rent receipt, particularly as the execution thereof is not disputed.
25.Coming to the question of fraud as alleged by the tenants, on careful appraisal of the facts, I find little room for the tenants to continue pressing the said plea in the face of clear admission that the counter foil was duly signed by appellant no.2 which he would have done consciously and with full knowledge. The appellant no.1 claims that the increase of rent came to his knowledge some time after receipt had been issued. Both the appellants in their respective statements have conceded that they had not taken any steps immediately thereafter except for what they indicated as oral protests.
26.In the above facts and circumstances, the nonresponse to the demand notice assumes significance. The demand notice had been issued on 12.09.2003 as per Ex. P5. The written statement disputed even its receipt, this falsely as under cross examination, the receipt by way of registered AD post was duly acknowledged.
27.In the face of admissions in above nature, there is no ARCT No. 36/2010 Amarjeet Athotra & anr. Vs. Maninder Singh & anr. 14 of 19 explanation why the tenants did not join issue by sending appropriate reply taking exception to the demand of increased rent. From this an adverse inference is bound to arise against their stand.
28.The next question raised by the counsel for the tenants is that the provisions of Section 5 DRC Act stipulate that a landlord cannot claim or receive rent in excess of the standard rent. The submission is that the only mode of revision of rent is under Section 6A DRC Act for which procedure is prescribed under Section 8 DRC Act. His argument is that any increase contrary to the said provisions of DRC Act would be contrary to law and, therefore, hit by provision of Section 23 of the Contract Act. In the same context, reference to the agreement dated 30.03.2000 vide Ex. PW 1/D1 has also been made.
29.In my considered view, the submissions do not cut much ice. The landlords and tenants may have agreed at one point of time that on account of cooperation of the tenant in permitting certain works to be carried out including in the nature of improvements and repairs of the tenanted premises, the landlords would not seek enhanced rent for a further period of three years. But then, agreement once reached does not become ARCT No. 36/2010 Amarjeet Athotra & anr. Vs. Maninder Singh & anr. 15 of 19 irrevocable or one that cannot be modified. The parties can always amend the agreement as seems to have been done in the present case. It has never been the case of the tenant that the rate of rent was in excess of the standard rent of the premise in the context of June, 2002. There is material on record indicating admission by the appellant no.1 before the Civil Judge that during the relevant period it was not possible to obtain a shop on rent at such rate as of Rs. 160/ per month.
30.In the facts and circumstances, as are shown to have existed by the evidence on record, it is clear that the rate of rent Rs.1000/ per month was tendered by appellant no.2 and duly acknowledged by and on behalf of the landlords through rent receipt ex. P3 for the month of June, 2002. I am not prepared to accept the objection about the other tenant not being a party to such increase of rent in the face of admission that it is a case of joint tenancy and with evidence showing that the rent has always been paid, on behalf of both the appellants, by appellant no.2.
31.In above view, the findings recorded by the learned Rent Controller cannot be faulted and, therefore, are upheld.
32.The last objection of the tenant is based on the law laid down in ARCT No. 36/2010 Amarjeet Athotra & anr. Vs. Maninder Singh & anr. 16 of 19 Globetch Engineers Vs. Ajay Chadha & anr. [2002(64) DRJ525]. The contention is that the learned Rent Controller having modified the order under Section 15(1) DRC Act should have adjourned the matter to a date beyond the period within which the compliance was to be made and, thereafter, considered as to what further order required to be passed.
33.I have given my considered thoughts to the subject. The appeal having been found devoid of merits in so far as the contest of the appellants against the findings recorded by the Rent Controller and the modified order under Section 15(1) DRC Act passed thereupon is concerned, it will not be proper to set aside the impugned judgment only because it contains error in the final direction. It is correct that the learned Rent Controller should not have passed a composite order. The proper course was to adjourn the matter beyond the date within which the modified order under Section 15(1) DRC Act was to be complied with and thereafter the question as to the benefit of Section 14(2) DRC Act was to be taken up for consideration. The error can be corrected by suitable directions.
34.It appears that the tenants rushed to this court with this appeal without compliance being made with the modified order within ARCT No. 36/2010 Amarjeet Athotra & anr. Vs. Maninder Singh & anr. 17 of 19 the period allowed. But, on an application moved by the tenants, this court vide order dated 30.04.2011 allowed the tenants to deposit the arrears of rent at the rate of Rs. 1,000/ per month in the court of Rent Controller in terms of the impugned judgment dated 15.09.2010, though with a rider that such deposit shall be without prejudice to the contents of both sides. Given the issues raised by the tenants, it was further ordered that the landlords shall not be permitted to withdraw the arrears of rent calculated more than at the rate of Rs. 160/ per month till further orders.
35.In view of the findings recorded by this court on merit of the appeal as recorded above, the restriction placed against withdrawal of rent by the landlords beyond Rs. 160/ per month needs to be vacated. Ordered accordingly.
36.In the facts and circumstances, the impugned judgment is upheld except as to the observations extending the benefit of Section 14(2) DRC Act to the tenants. For this purpose, the Rent Controller shall be called upon to examine as to whether modified order under Section 15(1) DRC Act has been complied with or not. In this, the Rent Controller will of course be pursuaded by the relevant law on the subject. ARCT No. 36/2010 Amarjeet Athotra & anr. Vs. Maninder Singh & anr. 18 of 19
37.With above observations/directions, the appeal stands disposed of. The parties are directed to appear before the Rent Controller on 14.11.2011 as chosen by both sides. The respondents shall be obliged to file corrected memo of parties in terms of directions in earlier part (para 19) of this judgment before further proceedings in the court of Rent Controller.
38.Trial court record be returned with a copy of this judgment.
39. File of the appeal be consigned to Record Room. Announced in open Court today on this 18th day of October, 2011 (R.K. GAUBA) District Judge (South) - cum -
Additional Rent Control Tribunal, Saket, New Delhi.
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