Delhi District Court
Sh. Mohd. Zakir vs Sh. Anil Kumar on 7 December, 2015
1
In the Court of Ms. Namrita Aggarwal
CCJ cum Additional Rent Controller1(Central)
Tis Hazari Courts, Delhi.
Case No. E 92/13/11
Unique ID No. 02401C0544482011
In the matter of :
1. Sh. Mohd. Zakir
S/o Late Haji Hafiz Mohd. Sami
R/o 496, Gali Tikay Wali, Bazar Chooriwalan,
Near Jama Masjid,
Delhi110006.
2. Sh. H. M. Fazil
S/o Late Haji Hafiz Mohd. Sami
R/o 496, Gali Tikay Wali, Bazar Chooriwalan,
Near Jama Masjid,
Delhi110006.
3. Mst. Shamima Sultan
D/o Late Haji Hafiz Mohd. Sami
W/o Late Sh. Mohd. Azam
1181, Gali Mirza Surrayyajah, Bazar Chooriwalan,
Near Jama Masjid,
Delhi110006. .........Petitioners
Versus
Sh. Anil Kumar
S/o Sh. Atam Prakash Jain
(a) Residential address:
Page 1 of 16 Mohd. Zakir & Ors. Vs. Anil Kumar Jain E92/13/11
2
B3/51, Ashok Vihar, PhaseII,
Delhi110052.
(b) Address of the demised premises:
No. 5655/XIII and 5666 (PartA)/XIII,
Sarai Hafiz Banna, Gandhi Market, Sadar Bazar,
Delhi110006. ........Respondent
APPLICATION FOR EVICTION OF TENANT UNDER SECTION
14 (1) (a) (b) & (j) OF DELHI RENT CONTROL ACT
Date of Institution: 23.12.2011
Case reserved for Judgment: 09.10.2015
Date of Judgment: 07.12.2015
Decision: Partly allowed
JUDGMENT
1. An eviction petition has been filed by the petitioners Sh. Mohd. Zakir, Sh. H.M. Fazil and Mst. Shamima Sultan against the tenant/respondent Sh. Anil Kumar for vacation of the tenanted premises, i.e., portion bounded by red colour in the site plan annexed alongwith petition as Annexure A, B and C forming part of premises bearing no. 5655/XIII and 5666 (PartA)/XIII, Sarai Hafiz Banna, Gandhi Market, Sadar Bazar, Delhi110006, on the grounds u/s 14 (1) (a), (b) & (j) of Delhi Rent Control Act, 1958 [hereinafter referred to as 'the DRC Act']. Page 2 of 16 Mohd. Zakir & Ors. Vs. Anil Kumar Jain E92/13/11 3
2. The case of the petitioners is that the petitioners are the owners/landlords qua the premises in question. That the respondent was initially inducted as tenant in the premises bearing no. 5655/XIII marked as 'A' in the site plan annexed alongwith the petition at a monthly rent of Rs. 26/ per month for nonresidential purposes. The terms of the tenancy were reduced into writing by the respondent in the form of a Rent Note dated 31.12.1970. Thereafter, the rent was increased from Rs. 26/ to Rs. 100/ per month in terms of letter dated 27.09.1997 written by the tenant to the father of the petitioner Sh. Haji Hafiz Mohd. Sami. Subsequently, on 01.04.2000, another portion of the premises bearing no. 5655/XIII was let out to the respondent for nonresidential purposes. The terms of tenancy qua this portion were once again reduced into writing by the respondent in the form of a Rent Note dated 05.05.2000 at the monthly rent of Rs. 200/ excluding other charges.
3. Further, it is averred by the petitioners that the respondent without obtaining the consent from his father Sh. Haji Hafiz Mohd. Sani, also the MCD, illegally carried out extensive structural changes in the premises in suit. The altered superstructure as existed in early 2004 of the presmies is shown as Annexure 'B' in the site plan. As soon as the said construction came to the knowledge of the father of the petitioner, his father instituted a petition before the Competent Authority (Slums) under Page 3 of 16 Mohd. Zakir & Ors. Vs. Anil Kumar Jain E92/13/11 4 Section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 and the said authority vide judgment dated 04.07.2008 was pleased to grant the requisite permission to sue with respect to two portions of the tenanted premises. Even after the said permission, the respondent onc again carried out structural changes in the suit premises which are shown in Annexure 'C', i.e., site plan filed by the petitioner. The petitioner has filed three site plans, i.e., one of the initial property existing at the time of letting out and the others are the site plans relating to structural changes carried out by the respondent firstly in the year 2004 and thereafter in 2008. Even, a legal notice dated 24.06.2000 was sent by the petitioners terminating tenancy of the respondent with respect to two demised premises and also requesting the respondent to restore both the tenanted premises to their original condition. This notice was duly served upon the respondent but no reply thereto was received from the respondent.
4. It is further submitted by the petitioners that the respondent has made default in payment of rent and despite of repeated requests and demands made by the father of the petitioner, respondent did not pay the arrears of rent with respect to premises shown as 'A' in the site plan since June, 2000 @ Rs. 100/ per month and for the premises shown as 'B' in the site plan since July, 2000 @ Rs. 200/ per month. Page 4 of 16 Mohd. Zakir & Ors. Vs. Anil Kumar Jain E92/13/11 5 Subsequently, legal demand notice dated 30.09.2005 & 04.10.2005 were sent by the petitioner to the respondent demanding arrears of rent alongwith interest. The said notices were duly served upon the respondent, to which respondent had also replied through his counsel in October, 2005 and had also sent a cheque bearing no. 515251 dated 07.10.2005 for a sum of Rs. 6,042/ drawn on the State Bank of India, Sadar Bazar, Delhi, propounding that the same represented the entire arrears of rent. However, the father of the petitioner returned the aforesaid cheque since the same did not represent the entire arrears of rent due and outstanding from the respondent, much less the interest due thereon at the statutory rates. Thereafter, on 25.11.2005, another reply was sent by the respondent to the father of the petitioner enclosed therewith two crossed cheques bearing no. 515262 and 515263, both dated 25.11.2005 for sums of Rs. 4,228/ and Rs. 2,114/ respectively, drawn on State Bank of India, Sadar Bazar, Delhi. A copy of this communication was received by the father of the petitioner but the original thereof was never received by him. Even the original purported cheques allegedly enclosed with the aforesaid communication also never reached the petitioner. Thereafter, petitioner wrote to the respondent stating that he has not received the cheques or the original communication dated 25.11.2005. This notice was also duly served upon the respondent but no reply was received thereto. Thus, it is submitted Page 5 of 16 Mohd. Zakir & Ors. Vs. Anil Kumar Jain E92/13/11 6 that the respondent despite service of legal demand notice did not pay or tendered the legally recoverable arrears of rent alongwith interest @ 15% p.a. for the period of default within the statutory period of two months from the date of service of notice dated 30.09.2005 and 04.10.2005.
5. Further, it is averred that the respondent has also permitted to be caused substantial damages to the premises in suit as has already been explained and it is also averred by the petitioner that earlier there was a mumty covering the staircase so as to prevent the staircase from the vagaries of weather, but the said mumty was demolished by the respondent with a view to carry out further structural changes on the open terrace. After removal of the said mumty, the respondent in order to protect his possession of that portion had inducted an illegal sub tenant, namely, a Chaiwala on the said open terrace, who had been paying to the respondent 'usufruct' for use and occupation of the said space @ Rs. 20/ per day. The said subtenancy has been created by the respondent without obtaining the consent either orally or in writing of the petitioner. The respondent has also permitted to be placed on the terrace wooden almirahs and boxes, which are let out by the respondent on daily/weekly basis to petty traders coming to the city to make purchases of goods and merchandise. The Chaiwala referred above acts as a watchman for these wooden almirahs and pettis and thus, the Page 6 of 16 Mohd. Zakir & Ors. Vs. Anil Kumar Jain E92/13/11 7 petitioner is seeking eviction of the respondent from the tenanted premises on the ground of subtenancy as well.
6. Summons were duly served upon the respondent, who filed written statement denying all the averments made by the petitioners in their petition. It is submitted by the respondent that the petitioners are neither the landlords nor the owners of the shops in question. That the shops in question were let out to the respondent by late Sh. Haji Hafiz Mohd. Sami about 42 years back and that the respondent has never tendered the rent in respect of shops in question to the petitioners at any point of time. It is further submitted by the respondent that no structural changes have been made in the superstructure of the shops in question and that they are in same condition as they were at the time of letting out to the respondent by the landlord Sh. Haji Hafiz Mohd. Sami. It is further submitted that the respondent was regularly paying the rent of the shops in question to Sh. Haji Hafiz Mohd. Sami, who always refused to accept the same for the reasons best known to him. It is further submitted by the respondent that two separate tenancies were created for two different shops at the different point of time but the petitioners have deliberately combined the eviction petition for both these portions in one petition in order to harass the respondent. Respondent has denied that he has subletted the portion to Chaiwala stating that petitioners have made Page 7 of 16 Mohd. Zakir & Ors. Vs. Anil Kumar Jain E92/13/11 8 fictitious story in order to harass the respondent. It is further submitted by the respondent that Sh. Haji Hafiz Mohd. Sami had apparently sold the property to some other persons before his death, who are also claiming to be the owners of the said property. As per the respondent, the alleged mumty over the staircase was never let out to the respondent at any point of time and was never required by the respondent and therefore, there is no question of demolishing of the said mumty or any structural changes in the said premises. That only minor repairs and whitewash was carried out by the respondent in the tenanted premises in order to maintain the same. It is admitted by the respondent that the rent for the shop marked 'A' is Rs. 100/ per month and the rent for the shop marked 'B' is Rs. 200/ per month, excluding other charges. Further, it is submitted by the respondent that since the landlord Sh. Haji Hafiz Mohd. Sami always refused to accept the rent, therefore, respondent had deposited the rent qua the tenanted shops in March, 2008 in the ARC Court. The respondent has denied to have permitted to be placed any wooden almirahs or boxes on terrace. It is further submitted by the respondent that he through his counsel Sh. Amit Jain had sent a letter dated 07.10.2005 to the landlord alongwith a cheque bearing no. 515251 dated 07.10.2005 for a sum of Rs. 6,042/ drawn on State Bank of India, Sadar Bazar, Delhi towards the entire arrears of rent due alongwith interest but the landlord refused to accept the same. That the petitioners Page 8 of 16 Mohd. Zakir & Ors. Vs. Anil Kumar Jain E92/13/11 9 have falsely alleged that original cheques alongwith communication dated 25.11.2005 were never received by him.
7. Replication has been filed by the petitioners wherein, they have denied all the averments made by the respondent in his written statement and reaverred what was averred by them in their original eviction petition.
8. Petitioner no. 1 stepped into the witness box as PW1 and deposed on the lines of the petition. Further, he relied upon the following documents:
a) Rent note dt. 31.12.70, letter dt. 27.09.97 & rent note dt. 05.05.2000 : Ex. PW1/1 to PW1/3
b) Three site plans : Ex. PW1/4 to PW1/6
c) Postal receipts and UPC : Ex. PW1/7 to PW1/10
d) Office copy of notice dt. 30.09.05/04.10.09, reply dt. 07.10.05, letter dt. : Ex. PW1/11 to PW1/16 25.11.05, letter dt. 14.12.05, original speed post receipt and certificate of Posting.
e) Order dt. 04.07.08 passed by Competent Authority (Slums) : Ex. PW1/17
9. In his turn, respondent entered into the witness box as RW1 and deposed on the line of his written statement. Further, he relied upon the following documents:
a) Complaint dt. 27.04.90 to SHO, PS Sadar Bazar : Ex. RW1/1
b) Letter dt. 13.07.90 : Ex. RW1/2
c) Treasury challan : Ex. RW1/3 Page 9 of 16 Mohd. Zakir & Ors. Vs. Anil Kumar Jain E92/13/11 10
10. I have heard the contentions of both the parties and have also gone through the judicial record carefully.
GROUNDS OF EVICTION UNDER SECTION 14(1)(a) OF THE ACT:
11. The cause of action for eviction on the ground of nonpayment of rent u/s 14(1)(a) of the Act consists of the following facts:
(a) relationship of landlord and tenant between the parties;
(b) existence of arrears of rent legally recoverable on the date of notice of demand;
(c) Service of notice of demand in the manner provided u/s 106 of TP Act;
and
(d) failure of tenant to pay or tender the whole of the arrears of rent legally recoverable from him within 2 months of the date of service of notice u/s106 of TP Act.
12. In the present case, the respondent has disputed the ownership of the petitioners over the shops in question as well as existence of landlordtenant relationship between them. However, respondent has admitted that he is a tenant in both the portions of the premises in question, i.e. shop no. 5655 and 5666 under the landlordship of Sh. Haji Hafiz Mohd. Sami. It has not been disputed that late Sh. Haji Hafiz Mohd. Sami was the deceased father of the petitioners and thus, being the legal heirs of the deceased landlord, the respondent cannot dispute the title or the landlordship of the petitioners over the tenanted premises. It has nowhere been disputed by the respondent that the petitioners are Page 10 of 16 Mohd. Zakir & Ors. Vs. Anil Kumar Jain E92/13/11 11 the only surviving legal heirs of deceased Sh. Haji Hafiz Mohd. Sami and thus, it does not lie in the mouth of the respondent today to say that the petitioners are not the landlords of the said premises. Being the tenant, respondent is estopped from disputing the title of the petitioners over the tenanted premises u/s 116 of the Indian Evidence Act. The petitioners have also placed on record the copy of the rent note dated 31.12.1970 and 05.05.2000, by virtue of which the father of the petitioner had let out the premises no. 5655 and 5666 to the respondent, thus proving the landlordtenant relationship between two. Thus, the ownership of the petitioners over the tenanted premises as well as existence of landlord tenant relationship stands duly proved for the purpose of DRC Act, as absolute ownership is not required to be proved by the petitioners/owners/landlords under the DRC Act.
13. Further, the respondent has not disputed that the rent of the premises no. 5655 as shown in 'A' is Rs. 100/ per month and the rent for premises no. 5666 is Rs. 200/ per month. However, it is submitted by the respondent that though, the respondent continuously paid and tendered rent to the father of the petitioners but he always refused to accept the same for the reasons best known to him. Thus, it has been admitted by the respondent that rent has not been paid by the respondent to the petitioners. No explanation has been given by the Page 11 of 16 Mohd. Zakir & Ors. Vs. Anil Kumar Jain E92/13/11 12 respondent as to what stopped him from depositing rent u/s 27 of the DRC Act, in the event of refusal by the father of the petitioner to receive the rent. It has been proved on record that the respondent had sent reply to legal notice dated 30.09.2005 and 04.10.2005, thus proving that legal demand notice was duly received by the respondent which was sent by the petitioner by registered post and UPC. Having received the said legal demand notice, the respondent has also sent a cheque bearing no. 515251 amounting to Rs. 6,042/, which the father of the petitioner refused to accept since the same did not include the interest @ 15 % p.a. for the delayed period. It is averred by the petitioner that thereafter also, two cheques were sent by the respondent alongwith communication dated 25.11.2005 but the same was never received by the petitioner. Per contra, as per the respondent, the said cheques were received by the father of the petitioner but they were never got encashed. It cannot be denied that if the said cheques were got encashed by the petitioner, then the respondent would have become aware of the same. Even if the contention of the respondent is believed to be true that he had sent the cheques to the petitioner which were never got encashed by him, then also, being the tenant, it was the duty of the respondent to deposit the rent within two months of the date of service of legal demand notice either by way of money order or by way of petition u/s 27 of the DRC Act. However, no such steps were taken by the respondent. The respondent Page 12 of 16 Mohd. Zakir & Ors. Vs. Anil Kumar Jain E92/13/11 13 has also failed to place on record even a single document to prove that rent u/s 27 of the DRC Act alongwith interest was deposited by him in the bank account of the petitioner or in the court. Thus, it has been proved that the respondent failed to pay or tender the legally recoverable rent alongwith interest @ 15% p.a. within two months of the date of service of legal demand notice. Thus, the petitioner is entitled to get the respondent evicted from the tenanted premises u/s 14 (1) (a) of the DRC Act, subject to inquiry u/s 14 (2) of the DRC Act.
14. Vide order dated 09.07.2012, the Ld. Predecessor of this Court had passed an order u/s 15 (1) of the DRC Act whereby, the respondent was directed to pay the arrears of rent w.e.f. November, 2008, within 30 days in the bank account of the petitioners. Further, he was also directed to pay the current and future rent every month in advance by 15th of each English Calender month.
GROUNDS OF EVICTION UNDER SECTION 14 (1) (J) OF THE ACT:
15. For succeeding in a petition for eviction filed under Section 14 (1)
(j) of the Act, the petitioner is required to prove:
(a) that the tenants have, whether before or after the commencement of this Act, caused or permitted to be caused substantial damage to the premises.Page 13 of 16 Mohd. Zakir & Ors. Vs. Anil Kumar Jain E92/13/11 14
16. It is averred by the petitioner that the respondent has carried out structural changes and alterations in the tenanted premises without the consent of the landlord. In order to substantiate the said contention, the petitioner has placed on record three site plans annexed as Annexure 'A', 'B' & 'C' with respect to the status of the tenanted premises which existed at the time of letting out of the tenanted premises by the father of the petitioner to the respondent and then, subsequently in the year 2004 & 2008 when allegedly structural changes were carried out by the respondent in the tenanted premises. Per contra, it is submitted by the respondent that no such structural changes were carried out by him and only minor repairs and white wash was done with the consent of the petitioner. It is also averred by the petitioner that a mumty was got demolished by the respondent so that open terrace could be used for other purposes by the respondent. During crossexamination, the respondent has himself admitted that the lay out of the tenanted premises as on date is as per Annexure 'C'. It is also admitted that in the year 2006, Annexure 'A' & 'B' were changed as per Annexure 'C'. Thus, there is a clear cut admission on the part of the respondent that he had carried out certain structural changes in the tenanted premises as it has been proved by way of three site plans filed by the petitioner relating to different period of time. On the other hand, no document or record has been filed by the respondent to substantiate that consent of the landlord Page 14 of 16 Mohd. Zakir & Ors. Vs. Anil Kumar Jain E92/13/11 15 was obtained by him before carrying out any structural changes in the tenanted premises and thus, it stands duly proved that structural changes were carried out by the respondent in the tenanted premises without consent of the landlord and thus, respondent is also liable to be evicted u/s 14 (1) (j) of the DRC Act.
GROUNDS OF EVICTION UNDER SECTION 14(1)(b) OF THE ACT:
17. Two essential conditions are required to be satisfied to prove sub letting as under:
(a) That the alleged subtenant is in exclusive possession, and
(b) That between the tenant and the alleged subtenant, there is a relationship of lessor or lessee.
18. It is alleged by the petitioners that the respondent has created subtenancy in the open terrace over the premises in question by letting it to a tea vendor, who sells his tea from the said premises and is paying 'usufruct' to the respondent for the use and occupation of the said space. Further, it is averred by the petitioners that the respondent has permitted to be placed certain wooden almirahs and boxes, which are let out by the respondent to various persons visiting the commercial area for buying and selling purposes. However, no photographs of the alleged sub tenancy has been filed on record by the petitioners in order to substantiate the same. Though, the respondent has admitted in his Page 15 of 16 Mohd. Zakir & Ors. Vs. Anil Kumar Jain E92/13/11 16 crossexamination that a tea vendor is sitting in premises shown in Ex. PW1/6 but it has nowhere been stated by him, rather has been denied that respondent has sublet the roof of the premises to a tea vendor or have installed any wooden almirahs or petties for the purpose of earning rent. In these circumstances, it remains unproved that the respondent has created any subtenancy with respect to terrace floor of the premises in question and therefore, the respondent is not liable to be evicted from the tenanted premises u/s 14 (1) (b) of the DRC Act.
19. It is averred by the respondent that the petitioner has malafidely filed one single eviction petition with respect to two separate portions, i.e., shop no. 5655 & shop no. 5666, though the tenancy was created at different point of time and at different rate of rent. However, it has been clearly held by the Hon'ble Delhi High Court in Atma Ram Properties (P) Ltd. Vs. Prem Nath Motors (p) Ltd. , 2006 (92) DRJ 529, that : "A single petition with respect to different tenancies in the same premises was maintainable, even if one was let out for commercial or residential purposes."
15. In view of the discussion made above, the petition filed by the petitioner is partly allowed. No orders as to costs.
Announced in open Court (Namrita Aggarwal)
on 07 Day of December, 2015. CCJ cum ARC1 (Central)
th
[This judgment contains 16 pages.] Tis Hazari Courts, Delhi.
Page 16 of 16 Mohd. Zakir & Ors. Vs. Anil Kumar Jain E92/13/11