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[Cites 15, Cited by 0]

Delhi District Court

Sh. Abhay Kumar S/O Late Sh. Bishamber ... vs Smt. Reena Gupta W/O Sh. Sanjeev Gupta on 21 September, 2011

                                                     ­1­

       IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGE­CUM­
     ADDITIONAL RENT CONTROL TRIBUNAL : INCHARGE­NE DISTRICT : 
                   KARKARDOOMA COURTS : DELHI :

RCT No. 28/11
Unique Case ID No. 02402C0090052011

Sh. Abhay Kumar S/o late Sh. Bishamber Singh, 
R/o 603/06, Dilshad Garden, 
Opp. SBI Bank, Delhi­110 095.                                                    ........Appellant. 
      vs.
   1. Smt. Reena Gupta W/o Sh. Sanjeev Gupta,
   2. Smt. Priti Gupta W/o Sh. Sunil Gupta,
   3. Sh. Sunil Gupta S/o Sh. S.C. Gupta,
      All R/o 1/9297, West Rohtas Nagar, 
      Main Babarpur Road, 
      Shahdara, Delhi­110 032.                                                   ........Respondents. 

Date of Institution :­ 21.03.2011
Date of Reserving for Order :­ 13.09.2011
Date of Pronouncement :­ 21.09.2011

O R D E R :

­ Appellate jurisdiction of this Tribunal has been invoked under section 38 of the Delhi Rent Control Act, 1958 (hereinafter referred to as the DRC Act), feeling aggrieved by judgement dated 15.02.2011 passed by Sh. Vrinda Kumar, then ld. ARC, Karkardooma Courts, Delhi, in case No. E­49/09.

2. Before going to the grounds of appeal, it will be in fitness of things to narrate succinctly the facts of the case leading to the filing of present RCT No. 28/11 Page 1/18 ­2­ appeal.

3. The respondent­petitioner filed an eviction petition under section 14(1)(a), (c) and (g) DRC Act against the appellant­respondent inter alia on the allegations that the petitioners are joint owners of property bearing No. 603/6, Opposite SBI Building, Dilshad Garden, Delhi, having purchased the same vide registered sale deed dated 28.06.2004. The respondent is tenant in portion of ground floor comprising of four rooms, one user toilet and bathroom in the property. The rate of rent was previously Rs.40/­pm, which was enhanced vide legal notice dated 24.10.05 and the rate of rent thus became Rs.44pm w.e.f. 01.11.05. The respondent is a persistent defaulter in paying rent and has failed to make payment of rent to the petitioner since their purchase of the property. The respondent was called upon several times to make payment of rent, but the respondent failed to make payment of rent despite request, thus the respondent was finally called upon to make payment of rent through legal notice dated 24.10.05. Despite service of notice, respondent failed to make payment of rent. He has neither paid nor tendered whole of arrears of rent despite service of legal notice and he is in arrears of rent w.e.f. 01.07.04. The respondent has made alterations and additions in the tenanted premises by way of constructing two sheds in the open Courtyard without the consent of the petitioner and is running a coaching RCT No. 28/11 Page 2/18 ­3­ centre, hence the eviction petition.

4. The petition was contested by the respondent, who in the written statement took preliminary objections inter alia on the ground that there is no relationship of landlord and tenant between the parties. The petitioner is neither owner nor landlord. Even otherwise, the matter is subjudice before the Civil Court. As such petition is not maintainable. The respondent is a tenant of one Smt. Savitri Devi since last more than forty years and tendering rent to her and after refusal the respondent used to deposit the same before the Court of ld. ARC. On merits, it was again denied that there exists any relationship of landlord and tenant between the parties. It was denied that rate of rent Rs.44pm in fact the agreed rate of rent is Rs.40/pm, excluding water and electricity charges. The details of accommodation as mentioned in the petition was denied. It was also denied that rate of rent was enhanced by 10% vide legal notice dated 24.10.05. It was submitted that petitioner has no legal right to increase the rent. The respondent has been regularly depositing rent in the Court of Additional Rent Controller in the name of landlady Smt. Savitri Devi. Service of legal notice of demand dated 24.10.05 was not denied and it was stated that same was duly replied vide notice dated 09.11.05. It was denied that respondent is in arrears of rent w.e.f. 01.07.07. As such it was submitted that petition is liable to be dismissed.

RCT No. 28/11 Page 3/18

­4­

5. Petitioner filed replication wherein the contents of petition were reiterated and the averments made in the written statement were denied. It was denied that there does not exist relationship of landlord and tenant between the parties or that petition is not maintainable. It was submitted that petitioner had purchased the suit property vide registered sale deed. It was very much in the knowledge of the respondent. The copies of sale deed have already been supplied to the respondent, besides that copy of the same has been deposited in the Court of Sh. Rakesh Kumar, Civil Judge. The respondent is deliberately not making payment of rent to the petitioner with a view to harass them. The civil suit is a counter blast to the notice of demand sent by the petitioner. After purchase of the suit property by the petitioner, there had been no occasion for Smt. Savitri Devi to accept the rent in any capacity.

6. On behalf of the petitioners, one of the petitioners namely Sunil Gupta was examined. On the other hand, respondent examined himself.

7. After hearing ld. counsel for the parties vide impugned order dated 15.02.11, it was held by ld. ARC that relationship of landlord and tenant between the parties stands proved. It was also observed by the ld. ARC that no evidence was led in respect of allegations of the petitioner regarding user of the premises for the purpose other than that for which it was let out or that premises are required bonafide by the landlord for the RCT No. 28/11 Page 4/18 ­5­ purpose of building or re­building. As such ground u/s 14(1)(c) and (g) were not made out. It was also held that respondent was in arrears of rent and the arrears were not paid despite service of legal notice of demand. As such petitioner was entitled to order of eviction under section 14(1)(a) DRC Act. ld. Trial Court also passed order under section 15(1) DRC Act, directing the respondent to deposit rent @ Rs.40/­pm w.e.f. 01.06.05 till 30.11.05 and @ Rs.44/­pm w.e.f. 01.12.05 till date within a period of 30 days. Thereafter, vide order dated 22.03.01 it was observed that since the respondent has complied with the order passed u/s 15(1) DRC Act as such respondent was entitled to benefit u/s 14(2) DRC Act. Accordingly, petition was disposed of.

8. Feeling aggrieved by the order dated 15.02.2011, present appeal has been filed.

9. Notice of the appeal was given to the respondent. Trial Court record was requisitioned.

10. I have heard Sh. S.P. Chaudhary, Advocate for the appellant and Sh. Deepak Gupta, Advocate for the respondent and have perused the record.

11. It was submitted by ld. counsel for the appellant that although the petitioner claimed to have purchased the property, however the petitioner did not prove the title deed in their favour. Even notice of demand was not RCT No. 28/11 Page 5/18 ­6­ proved by the petitioner. Even when the respondent appeared in the witness box, even at that time he was not confronted with legal notice. As such service of legal notice of demand is not proved. Moreover, when legal notice of demand was sent, the appellant called upon the petitioner to supply copy of documents vide which they are alleged to have purchased the property. However, the same was not supplied. As such in absence of supply of title deeds of the property, the respondent was not bound to pay rent to the petitioner. It was only during the trial of the case hat original owner filed objections stating therein that she has sold the property. Under these circumstances, it was submitted that in absence of establishing relationship of landlord and tenant between the parties, eviction petition was liable to be dismissed. Impugned order, therefore, is liable to be set­aside.

12. Per contra, it was submitted by counsel for the respondent that in para 18(b) of the eviction petition, it was specifically mentioned that legal notice of demand was served upon the respondent and there was no denial of the same in the written statement. Moreover, the appellant himself has placed on record the notice. That being so, it was not required on the part of the petitioner to prove the same. Rather since the notice has been filed by the appellant himself, the petitioner can rely upon it. There was no dispute regarding the rate of rent. The respondent had tried to RCT No. 28/11 Page 6/18 ­7­ raise the dispute regarding relationship of landlord and tenant. The erstwhile owner Smt. Savitri Devi accepted rent till May, 2004. Thereafter, she sold the property in June, 2004 by virtue of registered sale deed. In view of the registration of the sale deed, there is a presumption regarding its genuineness and under section 3 of the Transfer of Property Act, it was notice to the word at large. Had the respondent taken due care, he would have known that the property has been purchased by the petitioner. There was no need to send notice to the respondent. Moreover, according to the appellant­respondent he had been depositing rent under section 27 DRC Act. If there was a bonafide dispute as to whom rent was payable, the respondent would have impleaded the petitioner also, but that was not done. Moreover, it is the case of the petitioner that money order coupon were returned by Savitri Devi by mentioning that she has sold the property. The appellant failed to place on record the money order coupon or refusal of the same despite the fact that these documents were in power and possession of the appellant. As such an adverse inference was liable to be drawn against him by the ld. Trial Court. Moreover, deposit under section 27 DRC Act was not valid deposit, inasmuch as, the tenant was not only required to deposit rent, but also interest which was not deposited by the respondent. On the date of notice of demand at least the respondent was in arrears of rent for five months, which he failed to pay or RCT No. 28/11 Page 7/18 ­8­ tender to the petitioner. As such it was submitted that ld. Trial Court rightly came to the conclusion that petitioner had succeeded in establishing its case under section 14(1)(a) DRC Act. The impugned order does not suffer from any infirmity, which calls for interference. As such appeal is liable to be dismissed.

13. I have given my considerable thoughts to respective submissions of the ld. counsels for the parties and have perused the record.

14. As stated above, eviction petition was filed under section 14(1)(a),

(c) and (g) DRC Act. However, no evidence was led in regard to the allegations under section 14(1)(c) and (g) of DRC Act and the order of ld. Trial Court goes to show that counsel for the petitioner admitted that major stress of the eviction petition was under section 14(1)(a) DRC Act. As such no order was passed regarding these two grounds. Even during the present appeal, no counter appeal has been filed by the respondent in regard to these grounds. As such the ground under section 14(1)(a) DRC Act remains.

15. Needless to say when an eviction petition is filed under section 14(1)(a) DRC Act on the ground of non­payment of rent, it is incumbent upon the petitioner to establish following ingredients :­ (1) Relationship of landlord and tenant.

(2) Service of notice of demand for the arrears of rent by the landlord upon RCT No. 28/11 Page 8/18 ­9­ the tenant.

(3) Existence of arrears of rent legally recoverable on the date of service of notice of demand.

(4) Non­payment/tender of the whole of the arrears of rent legally recoverable from the tenant within two months of service of the notice of demand.

16. Turning to the case in hand, the basic dispute between the parties is regarding relationship of landlord and tenant, inasmuch as, a perusal of the eviction petition goes to show that it was the case of the petitioner that they had purchased the property vide registered sale deed dated 28.06.2004 and thereafter called upon the respondent to make payment of rent. However, although in corresponding para of the written statement, locus standi of the petitioner was challenged on the ground that there is no privity of contract between the parties. However, there is no categorical denial of the fact that petitioner had purchased the property by virtue of registered sale deed dated 28.06.04. Thereafter, both the parties led their respective evidence. In his examination­in­chief Sunil Gupta, one of the petitioner, stated that petitioners are joint owners of the property having purchased the same vide registered sale deed dated 28.06.04 and that legal notice dated 24.10.05 was duly served upon the respondent. The respondent, on the other hand, in his affidavit, again took the plea that RCT No. 28/11 Page 9/18 ­10­ premises was taken on rent by late Sh. Bishamber Singh, his father, from Sh. Harish Jain. Thereafter, Smt. Bimla Devi Jain became landlady of the premises and after her death her daughter­in­law Smt. Savitri Devi started receiving rent. Smt. Savitri Devi accepted the rent till May, 2004 and thereafter she refused to receive the rent, therefore rent was remitted through money order and on refusal, it was deposited under section 27 DRC Act vide challan Ex.RW1/1 to RW1/2, collectively for the period July, 2004 to January, 2009. It was further stated that he specifically sought information from Savitri Devi as to whether she had transferred the property to anybody else, including the petitioner, but she never replied the same. At no point of time Savitri Devi intimated the respondent about change or transfer of her title in favour of the petitioner nor ever attorned tenancy in favour of the petitioner, calling upon the respondent to pay rent to the petitioner. Respondent also filed the suit against the petitioner in which Savitri Devi was arrayed as one of the defendant. However, she was proceeded ex­parte. Even during those proceedings, she never appeared and intimated the Court that she had transferred the property in favour of the petitioner.

17. Under these circumstances, the pleadings of the parties and the evidence led by them makes it clear that as per the case of the petitioner the property was purchased by them by virtue of registered sale deed RCT No. 28/11 Page 10/18 ­11­ dated 28.06.04, whereas according to the respondent he neither received any notice from erstwhile owner nor received any intimation that petitioners have become owner of the property.

18. Section 3 of the Transfer of Property Act is "interpretation clause".

The relevant portion of this section reads as under :­ "3. Interpretation­clause.-- In this Act, unless there is something repugnant in the subject or context.--

..........................................................................................................

"registered" means registered in any part of the territories to which this Act extends under the law for the time being in force regulating the registration of document :
........................................................................................................ ........................................................................................................ Explanation 1.-- Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub­district, or where the registered instrument has been registered under Sub­Section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum RCT No. 28/11 Page 11/18 ­12­ of such registered instrument has been filed by any Sub­Registrar within whose sub­district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated :
Provided that--
(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act."

19. A perusal of this section goes to show that when transaction relating to the immovable property is effected by registered instrument, there is deemed notice of such instrument as from the date of registration. In the instant case, Sunil Gupta has admitted in cross­examination that no letter of attornment was issued by the previous owner in his presence. However, he went on stating that a telephone call informing the same was made in his presence. However, he admitted that either in legal notice or in pleadings he has not mentioned about telephonic message of attornment being conveyed by the previous owner to the respondent. RCT No. 28/11 Page 12/18

­13­ Although legal notice of demand was not proved by the petitioner, however the same is not fatal in the peculiar circumstances of the case, inasmuch as, the respondent himself filed the copy of legal notice of demand sent by the petitioner to which he sent the reply dated 09.11.05. It is settled principle of law that admitted facts need not be proved. A perusal of notice of demand dated 24.10.2005 sent by the petitioner goes to show that in para (1) of the notice itself, it was mentioned by the petitioner that they had purchased the property bearing No.603/6, Building Plot No. 53B, Dilshad Garden, Shahdara, Delhi, by two separate sale deed from Smt. Savitri Devi, Smt. Anita Jain, Smt. Poonam Jain and Smt. Manju Jain on 28.06.04. The sale deed was registered with Sub­registrar Delhi. It was also mentioned therein that he was duly informed by the transferrer of the said property in favour of the petitioner. In the corresponding para of reply to the legal notice, the factum of purchase of property by virtue of registered seal dead was denied for want of knowledge. It is pertinent to note that although the respondent has stated in his affidavit that petitioners were called upon to supply copy of sale deed in the reply, however perusal of the reply goes to show that respondent never demanded copy of sale deed. Moreover, once the sale deeds were registered, as per section 3 of the Transfer of Property Act, there was deemed knowledge on the part of the respondent. Moreover, had he been RCT No. 28/11 Page 13/18 ­14­ vigilant enough, he could have inspected the sale deed from office of Sub­ registrar where sale deeds were registered, but that was not done. Moreover, it is his case that since Savitri Devi had been refusing to receive the money order, therefore he had been depositing rent under section 27 of DRC Act. It is also his case that he was not aware about purchase of the property by the petitioners. Even if these submissions made by the respondent is accepted as correct, even then atleast after 24.10.05, it was within the knowledge of the respondent that petitioners are claiming to have become owner of the property by virtue of registered sale deed dated 28.06.04. Despite that he continued to deposit rent under section 27 DRC Act and perusal of the application moved by him goes to show that in column of "reason and circumstances for which the application for deposit of rent is made" it is merely alleged that landlord has refused to accept the rent tendered to him personally and thereafter also refused the rent sent by money order. In another petition under section 27 DRC Act Ex.RW1/P3, it was alleged that he had received the notice whereby petitioners are claiming to be owner of the property but no proof of ownership has been shown by them. Despite this fact mentioned in para 10 of the application, the respondent in order to show his bonafide did not implead the petitioner as respondent. It was admitted by him that in one of the petition for deposit of rent under section 27 DRC Act, Smt. RCT No. 28/11 Page 14/18 ­15­ Savitri Devi appeared and filed reply Ex.RW1/P4 wherein she again informed the respondent that by virtue of sale deed dated 28.06.04 she had transferred the property in favour of the petitioners and she annexed the copy of sale deed. The respondent has also admitted in cross­ examination that in the year, 2009 Smt. Savitri Devi had filed objection and through objections he came to know that property has been sold to the petitioner and she had also filed the photocopy of sale deed executed by her in favour of the petitioner. He also admitted that photocopy of sale deed was also supplied to him in the present petition. He also admitted that on the date of signing his examination­in­chief (which was by way of affidavit) he was aware about the sale deed executed in favour of the petitioner and that as on date, owners of the property are Reena Gupta and others. He also admitted that in the year, 2005 Reena Gupta and others through their counsel served notice upon him whereby he was informed that property has been purchased by them and they raised demand to pay rent to them. He also admitted that he had sent reply dated 09.11.05 and that even after receiving notice of the petitioners, he did not sent any rent to Reena Gupta and another. Despite the fact that since year 2005 it was in the knowledge of the respondent that petitioners have become owner of property, despite that he had audacity to challenge their locus standi in the written statement and also in his examination­in­chief. RCT No. 28/11 Page 15/18

­16­ On the other hand from sale deed dated 28.06.04 in favour of the petitioner, it becomes clear that petitioners became owner of the property and that being so they were entitled to realise rent from respondent and their existed relationship of landlord and tenant between the parties. Despite that much trial went on the plea taken by the respondent that there does not exist relationship of landlord and tenant between the parties.

20. As regards the arrears of rent, the petitioners have claimed arrears of rent w.e.f. 01.07.04. According to the respondent, the rent upto May 2004 was accepted by Smt. Savitri Devi and thereafter since she refused to receive money order it was deposited under section 27 DRC Act. Even if it is assumed that prior to sending legal notice dated 24.10.05, the respondent was not aware about the petitioners having become owner of the property but after receiving notice of demand, the respondent became aware of the fact that petitioner by virtue of purchase of property had become owner/landlord of the property, therefore it was incumbent upon him to pay arrears of rent to the petitioners. Petitioner had not only claimed arrears of rent, but also increased rent by virtue of section 6A read with section 8 of the DRC Act and interest @ 15% p.a. as provided under section 26 DRC Act. Instead of paying or tendering rent to the petitioner, the respondent for the same period deposited rent under RCT No. 28/11 Page 16/18 ­17­ section 27 DRC Act. But here also neither the increase in rent nor interest was deposited and therefore it was rightly held by the ld. ARC that even deposit under section 27 DRC Act was not valid tender.

21. The result of the aforesaid discussions is that petitioners had been able to establish all the essential ingredients of section 14(1)(a) and therefore they were entitled to eviction order. This part of the order dated 15.02.2011 does not suffer from infirmity, which calls for interference.

22. While holding that petitioners are entitled to eviction order under section 14(1)(a) DRC Act, ld. Trial Court also passed order under section 15(1) calling upon the respondent to deposit rent, which was deposited by him, and therefore vide order dated 22.03.11 he was granted benefit of section 14(2) DRC Act. This part of the order is not challenged by the respondent and rightly so.

23. Lastly, it may be mentioned that this appeal itself is not maintainable, inasmuch as, Section 38 of the DRC Act provides for appeal to Tribunal. This section provides that an appeal lies against order of Rent Controller to the Rent Control Tribunal. However, by virtue of the Act 52 of 1988, the scope of appeal is now limited and it has been specifically provided that appeal lies from every order of Controller to the Rent Control Tribunal only "on question of law". In the instant case, no question of law was involved and only appreciation of facts were involved. Therefore, RCT No. 28/11 Page 17/18 ­18­ appeal is not maintainable.

24. In view of the discussions made above, neither appeal is maintainable nor it has any merit. Same is, accordingly, dismissed.

25. A copy of the order along with Trial Court record be sent back.

Appeal file be consigned to Record Room.

Announced in the Open Court (Sunita Gupta) On this 21st day of September, 2011. District Judge­cum­ARCT, I/C­NE, Karkardooma Courts, Delhi.

RCT No. 28/11 Page 18/18