Delhi District Court
Shri Rajiv Sharma vs Shri Suresh Kumar on 7 August, 2010
Rajiv Sharma v. Suresh Kumar & Anr.
IN THE COURT OF SH. TARUN KR. SAHRAWAT
ADDITIONAL RENT CONTROLLER, DISTRICT NORTH:
DELHI.
E No. 1480/06
Unique Case ID No:
SHRI RAJIV SHARMA
S/o Late Jitender Nath Sharma
F51 A, Kolhapur Road,
Kamla Nagar,
Delhi110007. ...Petitioner
Versus
1. SHRI SURESH KUMAR
S/o Inder Sain
R/o AL150, Shalimar Bagh,
Delhi.
Also at:
Shop no. 4 (Private), F51A,
Kohlapur Road, Kamla Nagar,
Delhi110007.
2. SHRI VED PRAKASH
Sh. Loku Nath
R/o A97, Kamla Nagar,
Delhi110007.
Also at:
Shop no. 4 (Private), F51A,
Kohlapur Road, Kamla Nagar,
Delhi110007. ...Respondents.
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Rajiv Sharma v. Suresh Kumar & Anr.
Date of institution of the petition : 06/05/2006
Date on which order was reserved : 13/07/2010
Date of Decision : 07/08/2010
JUDGMENT
07/08/2010 This is an eviction petition U/s 14 (1) (a) of the Delhi Rent Control Act, 1958 (herein after referred to as DRC Act). (1). In the petition, it is stated that petitioner is the landlord/owner and respondent nos. 1 & 2 are the joint tenants in respect of one shop bearing (private) no. 4 situated on the ground floor of the property no. F51A, Kohlapur Road, Kamla Nagar, Delhi110007 (in short herein called "the premises"). The premises were let for commercial purpose to the respondent @ Rs. 77/ p.m. exclusive of electricity charges which are paid by the respondent as per consumption.
(2). It is alleged that the respondents are in arrears of rent at the monthly rent of Rs. 77/ p.m. since 08/03/2002 till date with interests @ 12% p.a. and the default in payment of rent is still continuing. It is further alleged that respondents have neither paid nor tendered the arrears of rent inspite of repeated requests and E no. 1480/06 Page 2 of 19 Rajiv Sharma v. Suresh Kumar & Anr.
demands of the petitioner besides service of demand notice dated 12/12/2005, which was sent to the respondents by way of registered AD and U.P.C. by the petitioner. It is stated that respondents have been regular defaulter in payment of rent and have already got the benefit of Sec.. 14(2) of D.R.C. Act in the earlier petition no. E 152/98 filed by the petitioner U/sec. 14(1)(a) and (b) of D.R.C. Act in the Court of Ms. Nivedita Anil Sharma, the then Learned A.R.C. Delhi, which was disposed of on 21/09/2002. With these submissions, petitioner prayed for grant of an eviction order U/Sec. 14(1)(a) of the D.R.C. Act against the respondents in respect of the tenanted premises.
(3). In the Written Statement filed on behalf of respondent nos. 1 & 2, it is admitted that petitioner is the landlord of the premises in question. However, it is submitted that the firm M/s Suresh Kumar Ved Prakash, a partnership concern is also a tenant in the suit premises through its partners i.e. respondent nos. 1 & 2. Rate of rent has been admitted by the respondents. However, it is submitted that respondents have been offering the payment of rent, but the petitioner has always refused to accept the same with malafide intentions. It is further stated that entire rent till 07/04/2002 stands deposited in the Court during the proceedings of eviction petition no. E152/98 which was finally decided in favour of the respondents vide order dated 21/02/2002 passed by the Court of E no. 1480/06 Page 3 of 19 Rajiv Sharma v. Suresh Kumar & Anr.
Ms. Nivedita Anil Sharma, the then Learned A.R.C. Delhi. (4). It is further stated that respondents sent money order dated 12/04/2002 qua the rent for the period w.e.f. 08/04/2002 to 07/05/2002 amounting to Rs. 77/, but the same was refused to be accepted by late Jitender Nath Sharma, father of the present petitioner on 15/04/2002. Similarly, respondents sent other money orders on different dates for the different periods, but those all were refused to be accepted by late Jitender Nath Sharma, father of the present petitioner. Thereafter, respondents instituted a DR petition before the Court of Ms. Nisha Saxena, the then Learned A.R.C. arraying late Jitender Nath Sharma as respondent and therein rent amounting to Rs. 1540/ for the period w.e.f. 08/04/2002 till 07/12/2003 @ Rs. 77/ p.m. was deposited with the Treasury on 10/02/2004. It is denied that respondents have neither paid nor tendered the rent despite repeated requests and demands made by the petitioner. It is submitted that no notice was ever served on the answering respondents. Though, they have been repeatedly tendering the rent, but the petitioner has malafidely not accepted the same. Thus, the respondents prayed for dismissal of the present eviction petition.
(5). Thereafter, petitioner filed replication controverting therein the objections of the respondent, reaffirmed and E no. 1480/06 Page 4 of 19 Rajiv Sharma v. Suresh Kumar & Anr.
reiterated his own averments of the petition. (6). Matter was listed for evidence. Petitioner Sh. Rajeev Sharma examined himself as PW1 and Sh. Ravi Shanker Kumar, LDC, Record Room (Civil), Tis Hazari Courts as PW2. On the other hand, respondent no. 1 Sh. Suresh kumar examined himself as RW1. No other witness has been examined in this case. (7). I heard the final arguments, perused the evidence and other material placed on record.
(8). Before I appreciate the evidence and other material brought on record, let us discuss the essential ingredients of Sec. 14(1)(a) of D.R.C. Act as under:
(i) That there is relationship of landlord and tenant between the parties;
(ii) That there are arrears of legally recoverable rent;
(iii) That a valid legal demand notice was duly served upon the respondent; and
(iv). That the respondent has neither paid nor tendered the entire arrears of legally recoverable rent within two months of date of receipt of legal demand notice.
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(i). That there is relationship of landlord and tenant between the parties: (9). PW 1 Sh. Rajeev Sharma deposed that he is the landlord/owner of the suit premises being shop no. 4 (private), F 51A, Kolapur Road, Kamla Nagar, Delhi110007 as previously his father owned this property and on 06/05/2004 on his death, the property vested in the petitioner, being his sole legal heir. PW 1 further deposed that his father had let out the suit shop to the respondents Sh. Suresh Kumar and Sh. Ved Prakash at a monthly rent of Rs. 70/ as joint tenants and they are the only tenants in the suit premises. Site Plan of the suit premises has been proved as Ex. PW 1/1. PW 1 Sh. Rajeev Sharma testified that a Rent Agreement dated 08/12/1978 was executed between his father and the respondents and the said original Rent Agreement was filed by his father in the Court in case no. E152/98 decided on 21/09/2002. The said Rent Agreement was duly signed by the respondents and late father of the petitioner. Respondents have admitted to have executed the said Rent Agreement in those proceedings and its certified copy has been proved as Ex. PW 1/2. (10). On the other hand, respondents have duly admitted the petitioner to be the landlord/owner of the premises in question. E no. 1480/06 Page 6 of 19
Rajiv Sharma v. Suresh Kumar & Anr.
RW 1 Sh. Suresh Kumar deposed that he and Sh. Ved Prakash, respondent no. 2, are the tenants in the suit shop. However, it is submitted that M/s. Suresh Kumar Ved Prakash, a partnership firm is also the tenant in the suit shop. But, the respondents have not placed on record a single document to substantiate that M/s. Suresh Kumar Ved Prakash have ever been the tenants in the suit shop. On perusal of the aforesaid Rent Agreement vide Ex. PW 1/2, it is evident that the Rent Agreement dated 08/12/1978 was executed between the father of petitioner, late Sh. Jitender Nath Sharma and the respondents Sh. Suresh Kumar and Sh. Ved Prakash as tenants. The testimony of PW 1 has gone unrebutted and unchallenged on this point during cross examination. (11). Moreover, respondents have admitted themselves to be the tenants in the suit shop. Even if their submissions with regard to the partnership firm as a tenant in the suit shop is assumed as true and correct then also it will make no difference on the merits of the case as the partnership firm also is the compendious name of the partners constituting the firm as pe law. On this, I am puissant with the case of Upper India Cable Co. & Ors. v. Bal Kishan 1985 (2) RCR (Rent) 520; wherein it was held that: "Now the question is where the suit is instituted against the firm and partners are impleaded as proper parties, in the event of death of a partner so sued, would E no. 1480/06 Page 7 of 19 Rajiv Sharma v. Suresh Kumar & Anr.
the suit or appeal, as the case may be, abate if heirs and legal representatives of the deceased partner are not substituted within the prescribed period of limitation. There is two fold answer to this question. Order XXX, Rule 4 provides that notwithstanding anything contained in Section 45 of the Indian Contract Act 1872 where two or more persons are sued in the name of the firm under the enabling provisions of Order XXX, and any such person dies where before the institution of the suit or during the pendency of any suit, it shall notnecessary to join the legal representatives of the deceased as a party to the suit. Secondly, death of a proper party would have no impact on the suit more so where on death of a partner the partnership may stand dissolved or heirs do not desire to join the firm. Both these aspects were overlooked by the High Court.
The position boils down to this that two of the partners who were appellants along with the firm in the second appeal before the High court died pending the appeal. It is nobody's case that the heirs and legal representatives of the deceased partners joined the firm or they were entitled to be taken in as partners in place of the deceased partners as partners in the firm. Therefore, the question to be answered is whether on the death of two of E no. 1480/06 Page 8 of 19 Rajiv Sharma v. Suresh Kumar & Anr.
the proper or formal parties impleaded in their capacity as partners by the plaintiff along with the firm, in absence of substitution of heirs and legal representatives the appeal abates ? The answer is in the negative. Therefore, the question of substituting heirs and legal representatives of the two proper formal parties does not arise and the death has no impact on the proceeding. The appeal cannot abate. Therefore, the High Court was in error in disposing of the appeal as having abated."
(12). Besides above, PW 1 Sh. Rajeev Sharma has proved the certified copy of the order dated 21/02/2002 passed by the Court of Ms. Nivedita Anil Sharma, the then Ld. ARC wherein it was held that respondent no. 1 and 2 are the tenants in the suit property. (13). In the light of above discussion, it is discernible that there exists a relationship of landlord and tenant between petitioner and the respondents/tenants. Thus, this issue is decided in favour of the petitioner and against the respondents.
(ii). That there are arrears of legally recoverable rent;
(iii). That a valid legal demand notice was duly served upon the respondent; and E no. 1480/06 Page 9 of 19 Rajiv Sharma v. Suresh Kumar & Anr.
(iv).That the respondent has neither paid nor tendered the entire arrears of legally recoverable rent within two months of date of receipt of legal demand notice.
14. PW 1 Sh. Rajeev Sharma deposed that respondents have neither paid nor tendered the rent to him and/or his father since 08/03/2002. They are in arrears of rent at monthly rent of Rs. 77/ p. m. since 08/03/2002 till date and the default in payment of rent is still continuing. Petitioner got the respondents served with a notice of demand dated 12/12/2005 through registered AD and UPC. Copy of the said demand notice has been proved as Ex. PW 1/3. The postal receipts and the UPC have been proved as Ex. PW 1/4 to PW 1/7 (Colly.) and Ex. PW 1/8 and PW 1/9 respectively. The said demand notice dated 12/12/2005 was served to the respondent on 15/12/2005 by registered AD and UPC. The said demand notice sent by UPC was never received back. The respondent no. 2 was served with the demand notice by registered AD and UPC and the acknowledgment of registered AD sent to the respondent no. 2 has been proved as Ex. PW 1/13.
15. PW 1 further deposed that respondents have been regularly defaulter in payment of rent and in view of their persistent default in payment of arrears of rent, his father served them with a notice of demand and termination of tenancy. On their failure to pay E no. 1480/06 Page 10 of 19 Rajiv Sharma v. Suresh Kumar & Anr.
the rent, he filed an eviction case no. 152/98 and an order U/sec. 15 (1) D.R.C. Act was passed in that case and as such, the respondents have already got the benefit of Sec.. 14 (2) of D.R.C. Act in the said petition filed against the respondents U/Sec. 14(1)(a) & (b) of the D.R.C. Act in the Court of Ms. Nivedita Anil Sharma, the then Learned ARC Delhi. Certified copy of the said order dated 21/02/2002 has been proved as Ex. PW 1/14. Certified copy of the order dated 21/02/2002 has been proved as Ex. PW 1/14. Certified copy of the modified order U/sec. 15 (1) D.R.C. Act of the same date has been proved as Ex. PW 1/15.
16. On the other hand, respondents have taken the defence that they have been tendering the rent since 08/04/2002 onwards to the petitioner through various money orders, but when the same were not received, either refused or returned back, the rent was deposited in the Court time to time. RW 1 Sh. Suresh Kumar deposed that neither he nor Sh. Ved Prakash ever received any notice towards demand of rent at any time from the petitioner.
17. On perusal of the aforementioned documents viz. Ex. PW 1/3 to PW 1/13, it is evident that the said demand notice dated 12/12/2005 has been duly served on the respondents. Acknowledgment of registered AD vide Ex. PW 1/13 shows that respondent no. 2 was duly served. Learned counsel for petitioner E no. 1480/06 Page 11 of 19 Rajiv Sharma v. Suresh Kumar & Anr.
contends that notice served on any of the tenants is a sufficient service for all the tenants. He sought reliance upon the case of Shiv Lal v. Kartar Devi 1977 RLR 473; wherein it was held that "Delhi Rent Control Act 1978 Sec.. 14 in the case of joint tenant, notice should be addressed to all and it is enough if it is served on any one of them."
Further in the case of Jindal Dye Chem Industries Pvt. Ltd. v. Pahwa International Pvt. Ltd. 2009 VIII AD (Delhi) 535; it was held that "11. In support of proof of service of Notice of termination of tenancy plaintiff has placed on record the copy of notice dated 09/10/2007, original postal receipt in respect of the notice dated 09/10/2007, original AD, copy of the letter dated 24/10/2007, original postal receipts in respect of the above letter. I have perused the record and found that all the documents placed on record are bearing correct address of the defendant.
12. In view of the record placed by the plaintiff and in light of the fact that the notice was dispatched to the defendant's correct address through registered post and the AD card was also received back from the defendant, the denial in respect of the said notice by the defendant has no value. The rebuttal in this case does E no. 1480/06 Page 12 of 19 Rajiv Sharma v. Suresh Kumar & Anr.
not go beyond a bald and interested denial of service of the notice by the defendant, which does not displace the onus to rebut the presumption of service. I am unable to accept the arguments advanced by the defendant before this Court that by merely saying the AD card bears somebody else's signature, they have discharged the initial burden to rebut the presumption."
Further, in the case of Atma Ram property Ltd. v. Pal property Pvt. Ltd. 2001 IV AD (Delhi) 512; it was observed:
"13. Coming to the service of the notice, the plaintiff has placed on record the copy of the notice sent to the defendants under section 106 of the Transfer of Property Act. The plaintiff has also placed on record the postal receipt in original by which notice was sent by registered post to the defendants. The plaintiff has also produced on record the original acknowledgment received back which is addressed to Pal Properties India Pvt. Ltd. Address is rightly mentioned as H72, Connaught Circus, New Delhi. It bears stamp and is signed by some person acknowledging the receipt of the letter.
14. In view of these documents on record it cannot be said that the defendants did not receive the notice. Bare denial would not serve any purpose." E no. 1480/06 Page 13 of 19
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Similarly, in the case of Chander Mohan Arora (Dr.) v. Sunil Jain 2004 IV AD (Delhi) 57; it was held that "The finding of the trial Court that there was no legal evidence of service of the notice, is also contrary to the evidence on record Ex. PW01/20 is the acknowledgment due receipt, PW1/17 was postal receipt, PW1/19 was the UPC certificate. What else was required to be produced by the plaintiff to prove that the notice has been sent ? There is a presumption under the General Clauses Act that when a registered letter is delivered at the correct address, even if the same has been returned, the service is complete on the addressee. Judging from any angle we find that the judgment is totally perverse and without taking into consideration the material placed before the Court."
Further, in the case of Madan Lal Sethi v. Aman Singh Bhalla 1980 (2) AIR CJ 543; it was held that "Held. Mere denial by the tenant does not rebut the presumption raised under section 114 Illustration (f) of the Indian Evidence Act. The tenant must have produced some other evidence to show that the usual course of the post was interrupted by disturbances. He must have proved other circumstances E no. 1480/06 Page 14 of 19 Rajiv Sharma v. Suresh Kumar & Anr.
to show that the notice never reached the addressee. There is no evidence except the bare statement of the tenant. In Om Prakash Bahal v. A.K. Shroff, 1973 RCJ 149, V.S. Deshpande, J. (as he then was ) held that notice sent under a certificate of posting is presumed to have been served and tenant's denial has no value unless he proves some extraordinary happening or event which prevented the following of usual course of business."
18. In the light of above cited law authorities and the aforementioned facts and circumstances, it is evident that service of the demand notice dated 12/12/2005 has been duly affected on the respondent no. 1 & 2.
19. Further, in so far as payment of rent with respect to the arrears of rent is concerned, RW 1 Sh. Suresh Kumar has proved a challan dated 14/03/2002 as Ex. PW 1/D1 showing therein the deposit in the Court w.e.f. 08/09/1995 to 07/04/1996 and for the period w.e.f. 08/03/2002 to 03/04/2002. Similarly, RW 1 proved the treasury challan dated 10/02/2004 Ex. PW 1/D2 where it is shown that respondents deposited the rent amounting to Rs. 1540/ for the period w.e.f. 08/04/2002 till 07/12/2003 @ Rs. 77/ p.m. Respondents have alleged that they sent money orders but the petitioner refused to E no. 1480/06 Page 15 of 19 Rajiv Sharma v. Suresh Kumar & Anr.
accept the same and he did not issue the rent receipts. I find no strength in this plea of the respondents even if it is assumed as correct that respondent had tendered the rent to petitioner by way of money order and petitioner/landlord refused to accept the same and did not issue the rent receipts, in that case also, respondent had the option to deposit the rent with Rent Controller as per Sec 27 of D.R.C. Act, which he did avail of. On this, I am supported by the case law of Atma Ram v. Shakuntala Rani 2005 RLR 597 (SC) ; wherein Hon'ble Apex court observed as under: "The Act, therefore, prescribes what must be done by a tenant if the landlord does not accept rent tendered by him within the specified period. He is required to deposit the rent in the Court of the Rent Controller giving the necessary particulars as required by Sec. 27(2). There is, therefore, a specific provision which provides the procedure to be followed in such a contingency. In view of this it would not be open to a tenant to resort to any other procedure. if the rent is not deposited in the court of Rent Controller as required by Sec. 27 of the Act, and is deposited somewhere else, it shall not be treated as a valid payment of rent within the meaning of the Act and consequently the tenant must be held to be in default."
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Further, in the case of Sukhanand v. IV th Addl. District Judge, Bulandshaher & Ors. 1994 (2) AIR CJ 27, it was held that "The onus to show payment of rent lies on a tenant and the oral testimony of the tenant in regard to the payment of rent claiming discharge of the liability in this regard cannot be deemed to worth reliance at all."
20. Further, during his cross examination, RW 1 Sh. Suresh Kumar precisely stated that "I also never paid and deposited the interest on arrears of rent to the petitioner."
21. From the above statement, it transpires that respondents have failed to pay or deposit the interest on the arrears of rent to the petitioner which also, in my considered opinion, is to be considered as default in payment of rent as per law. On this, I am supported by the case law of Raghubir Singh v. Sheelawanti & Another 2009 (1) RCR 287: wherein it was held that: "Delhi Rent Control Act, Section 14(1) (a) Delhi Rent Control Act, Section 26Payment of interest on arrears of rentTenant not paying rent month to month Under Section 26 of Rent Act, tenant has to pay 15% interest per annumInterest accused on delayed payment of E no. 1480/06 Page 17 of 19 Rajiv Sharma v. Suresh Kumar & Anr.
rent becomes part and parcel of rent In a suit for eviction on ground of arrears of rent and interest thereon, tenant paying rent only and not the amount of interestTenant liable eviction."
22. In the light of above discussion, it stands proved that respondents have neither paid nor tendered the entire arrears of legally recoverable rent within two months of the receipt of legal demand notice. PW1 Sh. Rajeev Sharma further testified that earlier in the case of E. No. 152/98, an order U/sec. 15(1) D.R.C. Act was passed and in that case, the respondents were granted the benefit of Sec.. 14(2) of D.R.C. Act by the Court of Ms. Nivedita Anil Sharma, the then Learned A.R.C., Delhi vide order dated 21/02/2002. Certified copies of the said order and the modified order dated 21/02/2002 have been proved as Ex PW1/14 and Ex. PW1/15 respectively. Testimony of PW1 has not been rebutted or challenged on this aspect. In the circumstances, I observe that respondents are no more entitled to get protection under any provision of D.R.C. Act.
23. In the wake of above, I hold that petitioner has successfully established his case for eviction U/Sec. 14(1)(a) of D.R.C. Act r/w Sec. 14 (2) of D.R.C. Act against the respondents in respect of aforesaid tenanted premises. Hence, an eviction order is passed U/Sec. 14(1)(a) of the D.R.C. Act in favour of petitioner and against E no. 1480/06 Page 18 of 19 Rajiv Sharma v. Suresh Kumar & Anr.
the respondents in respect of the tenanted premises i.e. a shop bearing (private) no. 4 situated on the ground floor of the property no. F51A, Kohlapur Road, Kamla Nagar, Delhi110007 vide Ex. PW1/1. File be consigned to Record Room.
Announced in open court on 07th of August, 2010.
Tarun Kr. Sahrawat A.R.C.(North)/Delhi (1+2 separate copies are attached).
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E No. 1480/06 RAJEEV SHARMA VS. SURESH KUMAR & ANR.
07/08/2010 Present: None.
Vide my separate judgment of even date, I hold that petitioner has successfully established his case for eviction U/Sec. 14 (1)(a) of D.R.C. Act r/w Sec. 14 (2) of D.R.C. Act against the respondents in respect of aforesaid tenanted premises. Hence, an eviction order is passed U/Sec. 14(1)(a) of the D.R.C. Act in favour of petitioner and against the respondents in respect of the tenanted premises i.e. a shop bearing (private) no. 4 situated on the ground floor of the property no. F51A, Kohlapur Road, Kamla Nagar, Delhi 110007 vide Ex. PW1/1. File be consigned to Record Room.
Tarun Kr. Sahrawat A.R.C. (N)/ Delhi.
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