Delhi District Court
Shrimati Jubeda W/O Late Sh. Yamla ... vs Shri Kush Nawaj Hassan S/O Sh. Aijaja ... on 6 July, 2011
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IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGECUM
ADDITIONAL RENT CONTROL TRIBUNAL : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
RCT No. 24/11 & 31/11
Shrimati Jubeda W/o late Sh. Yamla Abassi,
R/o D218, Main Gali No.4,
Noor Elahi Colony,
North Ghonda, Near Yamuna Vihar,
Delhi. .........Appellant.
vs.
Shri Kush Nawaj Hassan S/o Sh. Aijaja Hassan,
R/o D94, Noor Elahi Colony, North Ghonda,
Shahdara, Delhi. ........Respondent.
Date of Institution : 25.02.2011/21.04.2011
Date of Reserving for Order : 04.06.2011
Date of Pronouncement : 06.07.2011
O R D E R : By this common order I shall dispose of two RCT appeals bearing No. 24/11 and 31/11 as both appeals are between the same parties.
2. Appeal bearing RCT No. 24/11 has been preferred challenging the order dated 02.02.2011 passed by ld. ARC, vide which ld. ARC came to the conclusion that respondentpetitioner is entitled to eviction order. However, order under section 15(1) Delhi Rent Control Act, 1958 (hereinafter referred to as the DRC Act) was passed directing the RCT No. 24/11 & 31/11 Page 1/16 2 appellantrespondent to deposit the arrears of rent within a period of 30 days, and the matter was adjourned for hearing arguments under section 14(2) DRC Act.
3. Appeal bearing No. 31/11 has been preferred challenging the order dated 31.03.2011, vide which eviction order was passed by ld. ARC by holding that appellantrespondent has failed to comply with order under section 15(1) DRC Act, therefore she is not entitled to benefit of section 14(2) DRC Act.
4. Before going to the grounds of appeal, it will be in fitness of things to narrate the circumstances leading to the filing of present appeal.
5. Respondentpetitioner filed an eviction petition under section 14(1)
(a) DRC Act against the appellantrespondent inter alia on allegations that appellantrespondent was inducted as tenant in the suit premises on 26.04.2000 vide rent agreement of even date. The petitioner had purchased premises from respondent on 26.04.2000 vide agreement to sell dated 26.04.2000 executed by the respondent in favour of the petitioner for a total agreed sale consideration amounting to Rs.60,000/ and after receiving the entire sale consideration, respondent executed receipt in favour of the petitioner and thereafter petitioner got peaceful vacant possession and then inducted the respondent as tenant in the premises on the same day at a monthly rent of Rs.3,000/. The RCT No. 24/11 & 31/11 Page 2/16 3 respondent, however, failed to pay any rent as such notice dated 20.02.2001 and 05.03.2001 was sent through his counsel. But the same was returned back with remarks, "Soochna De Di Gayee Hai". Respondent avoided to comply with notice sent by the petitioner. Hence, the eviction petition was filed.
6. Petition was contested by the respondent, who in written statement took preliminary objections inter alia on the ground that petitioner has no locus standi to file petition, inasmuch as, he is neither owner nor landlord of the suit premises. There exists no relationship of landlord and tenant between the parties. As such petition under the DRC Act does not lie. It was further averred that petitioner has played fraud upon the respondent and misrepresented that he will make arrangement of loan for her and he wanted a GPA executed by her in this behalf. He made her to put her thumb impression on GPA. She did not sign or executed any document of any kind. The alleged documents such as agreement receipt etc purporting to be sale documents put forward by the petitioner are forged, fabricated, fraudulent and without consideration and are not legally and validly executed. Respondent is not tenant by virtue of any alleged rent agreement. Respondent cancelled GPA dated 26.04.2000 through legal notice dated 13.09.09. On merits, it was reiterated that there does not exists any relationship of landlord and tenant between the parties. As RCT No. 24/11 & 31/11 Page 3/16 4 such, there is no question of paying any rent and petition is liable to be dismissed. Appellantrespondent filed rejoinder, wherein he denied averments made in the written statement and reiterated stand taken in main petition.
7. Petitioner examined himself, besides PW2. The respondent did not lead any evidence. As such her evidence was closed. After hearing arguments, the impugned orders referred above were passed.
8. Notice of both appeals were given to the respondent. Trial Court record was summoned.
9. I have heard Sh. Khurshid Anwar, Advocate, for the appellant and Sh. M.U. Rehman, Advocate, for the respondent and have perused the record.
10. It is submitted by ld. counsel for the appellant that eviction petition was premature, inasmuch as, according to the respondentpetitioner, the notice claiming arrears of rent was sent on 05.03.2001. However, the eviction petition was filed on 07.05.2001 itself. The notice was allegedly sent by registered envelop, according to which information was given on 13.03.2001, therefore since the eviction petition has been filed before the expiry of two months, as such it was premature. It was further submitted that notice was not delivered personally to the appellant and therefore in the absence of examination of post man, no presumption can be drawn RCT No. 24/11 & 31/11 Page 4/16 5 regarding service of notice. It was further submitted that notice itself is invalid, inasmuch as, as required under law it was incumbent upon the landlord to give 60 days time to the tenant to pay arrears of rent. However, payment of arrears of rent within 15 days is bad in law. Moreover, vide notice dated 05.03.01, only arrears of rent were claimed and tenancy was not terminated. As such even otherwise eviction petition could not have been filed. Further more, the description of property is not clear, inasmuch as, in agreement to sell Ex.PW1/6 and notice there is only mention of plot and plot does not fall in the definition of section 2(i) of Delhi Rent Control Act. The description of property does not tally with the alleged rent agreement and the site plan placed on record. Even the notice of demand has not been proved. It was further submitted that order dated 02.02.2011 is composite order as while passing the eviction order, order under section 15(1) DRC Act was also passed. As such the same is bad in law. Under these circumstances, it was submitted that impugned orders suffer from infirmity and are liable to be setaside.
11. Per contra, it was submitted by ld. counsel for respondent that no plea regarding validity of notice was taken in written statement nor any evidence was led by the respondent. As such, such plea cannot be allowed to be taken in appeal. Moreover, while the notice was sent by registered cover and intimation was given to the respondent regarding RCT No. 24/11 & 31/11 Page 5/16 6 notice on 05.03.2001 itself and thereafter there is report dated 13.03.2001. Although it was fairly conceded during the course of arguments that notice of demand dated 05.03.2001 was not exhibited, but it was submitted that notice of demand was sent in registered envelope Ex.PW1/13 and the same has been duly exhibited. As such it was submitted that there is no infirmity in the orders, which call for interference and appeals are liable to be dismissed.
12. I have given my considerable thoughts to the respective submissions of the ld. counsel for the parties and have perused the record.
13. The Landlord for getting eviction order under clause (a) has to prove that tenant is in arrears of rent and despite service of notice, demanding arrears of rent, the tenant has neither paid nor tendered the legally recoverable rent. For establishing the ground following facts has to be proved :
(a) Relationship of landlord and tenant.
(b) Existence of arrears of rent legally recoverable on the date of service of notice of demand;
(c) Service of notice of demand;
(d) The tenant failed to pay or tender the entire legally recoverable arrears of rent within two months from the date of service of demand notice. RCT No. 24/11 & 31/11 Page 6/16
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14. The scheme of DRC Act provides that cause of action for eviction of tenant on the ground of nonpayment of rent accrues to landlord, when he serves the notice of demand for arrears of rent upon the tenant in the manner provided in section 106 of Transfer of Property Act, 1882 and the tenant neither paid nor tendered whole of the arrears of rent legally recoverable from him within two months of the date of service of notice of demand. Thus, cause of action on the ground of nonpayment of rent consist of demand and failure of the tenant to pay or tender within two months. The landlord thereafter may file the petition for eviction of the tenant on the ground of nonpayment of rent. The liability of ejectment is founded on nonpayment of rent within two months after service of notice of demand. Clause (a) requires the notice of demand for arrears of rent to be served by landlord on the tenant. The landlord is not entitled to seek eviction of the tenant on the ground of nonpayment of rent unless he serves a notice of demand for arrears of rent. Further more, cause of action arises only after expiry of two months, if notice is not complied, inasmuch as the scheme of the Act provides two opportunities to the tenant to avoid eviction, firstly when he pays arrears demanded in notice within two months and secondly when he deposits rent under section 15 of DRC Act as ordered by the Rent Controller. The ground of nonpayment of rent is available to the landlord as tenant fails to pay or tender whole of RCT No. 24/11 & 31/11 Page 7/16 8 the arrears of rent legally recoverable from him within two months of service of notice of demand. This right of the landlord can be wiped only when tenant strictly complies with order for deposit or payment of rent under section 15 of DRC Act. Once the landlord issued notice, he must wait for expiry of two months period, before proceeding for eviction on the ground of wilful default. If the eviction petition is filed within two months of notice of demand of arrears, then it is not maintainable so far as ground of nonpayment of rent is concerned as held in S. Sunderam vs. V.R. Patta Vahiraman, AIR 1985 SC 582.
15. Turning to the case in hand, the basic challenge in the present appeal is regarding service of the notice of demand and its validity. It is the case of the respondentpetitioner that respondent failed to pay rent w.e.f. 26.04.2000. As such petitioner has sent notice dated 20.02.2001 and 05.03.2001. However, the petitioner has not bothered to prove the service of notice of demand and it was fairly conceded by the ld. counsel for respondentpetitioner that it was not exhibited during the trial of the case. However, ld. counsel submitted that notice is in registered envelope, which has been exhibited. It is common knowledge that office copy is always kept by the counsel, and therefore it was incumbent upon the petitioner to have proved the same. Although the copy was placed on record, but it was not duly exhibited. As such even the legal notice of RCT No. 24/11 & 31/11 Page 8/16 9 demand is not proved by the petitioner.
16. Coming to the service part, it is the case of respondentpetitioner that both these notices were sent by registered post. So far as notice dated 20.02.2001 is concerned, it was received back with the report "no such number". Therefore this notice of demand was not served upon appellantrespondent. It is the case of respondentpetitioner that notice dated 05.03.2001 was duly served upon the appellant as the same was returned back with remarks "Soochna De Di Gayee Hai". The respondent has denied receipt of any such notice. ld. counsel for the appellant placed reliance on 2001 (2) RCR 411, Lalmani Ramnath Tiwari vs. Bhimrao Govind Pawar, where the notice sent by registered post was received back by the landlord with postal endorsement "not claimed". It was held that it cannot be treated to be one of the refusal and no presumption of service of notice can be drawn. On the other hand, ld. counsel for respondent placed reliance on 2003 (2) RCR 362, David K.N. vs. S.R. Chaubey, where also notice sent by registered post was received back with postal endorsement "not claimed". It was held by Hon'ble High Court of Bombay that there is presumption of service and statement on oath regarding nonreceipt is not sufficient to rebut the service. Tenant should place some material to rebut the service. Reliance was also placed on 2003 (2) RCR 515, A.M. Ramakrishnan vs. Madurai Virudhunagar RCT No. 24/11 & 31/11 Page 9/16 10 Nagaragal Uravinmurai Paribalana Sabai, where registered notice was sent to the tenant terminating lease with tenant was not available at the time when postman went to deliver the registered letter. Intimation to collect the letter from the post office was given by the postman. Letter was not collected. It was held that it must be presumed that tenant had acknowledged the receipt.
17. In view of these authoritative pronouncements, once the notice sent by registered post is received back with postal endorsement "intimation delivered" there is a presumption of service of notice. Although the presumption is rebuttable, however in the instant case, the appellant respondent has not appeared in the witness box to rebut that presumption, and as such presumption has to be drawn that notice was served upon the appellant.
18. The next question for consideration is when this notice dated 05.03.2001 was served upon the appellant. There are two noting on this registered envelope. There is some noting below which there is a date 05.03.2001 and then there is another noting "Soochna De Di Gayee Hai"
and below that there is date 13.03.2001. Ld. counsel for the respondent petitioner wanted the Court to presume that intimation regarding notice was delivered to the appellantrespondent on 05.03.2001 itself. However, this submission does not appeal to reasons, inasmuch as, notice itself is RCT No. 24/11 & 31/11 Page 10/16 11 dated 05.03.2001 and therefore it cannot be presumed that notice would be taken by the post man on the same day from post office and would be delivered to the addressee. If the intimation was given to the addressee on 05.03.2001 itself, there was no need for making another noting regarding delivering the intimation and then putting the date as 13.03.2001. At any rate, the best person to prove the endorsement and to clear the ambiguity was the post man concerned, who has not been examined by the landlordpetitioner. ld. counsel for appellant relied upon Shashi Kumar vs. Dharampal Sharma & another, 19 (1981) DLT 130, where service of notice was effected by two different modes on different dates. It was held that limitation of two months would run from later date. Although in the instant case, notice was sent by one mode only, i.e., registered AD but two different dates are appearing. Therefore, taking the ratio of this authority, it is to be taken that intimation was delivered to the respondent on 13.03.2001. That being so, since the eviction petition has been filed on 07.05.2001, therefore the same was filed before the expiry of period of two months of service of notice and therefore the petition is premature.
19. Ld. counsel for the appellant has also challenged the validity of notice on the ground that it does not give clear description of the property. Reliance was placed by him on AIR 1985 SC 136, Chiman Lal vs. Mishri Lal, where notice terminating the tenancy did not relate to the entire RCT No. 24/11 & 31/11 Page 11/16 12 accommodation actually let to the tenant, but only to lessor part of it. It was held that notice of demand is invalid and therefore suit is not maintainable. Reliance was also placed on 1999 (1) RCR 235, Hindustan Petroleum Corporation Ltd vs. M/s Lucy Banilda Rebellow, where also it was held that notice demanding arrears of rent should contain besides others "description of the property" sufficient to identify the same.
20. A perusal of record reveals that it is the case of the respondent petitioner that property was purchased by him from the respondent by virtue of various documents viz GPA, will etc. on 26.04.02 and on the same date premises were let out to the appellantrespondent by virtue of rent agreement. Although, the appellant has disputed regarding sale of property to the respondentpetitioner and that GPA was revoked by him, however not much discussion is required to be gone into in this regard, inasmuch as, revocation of GPA was got done from pendency of the case. Moreover, it was observed by ld. Trial Court that appellant had taken different pleas regarding execution of GPA. At any rate, appellant respondent did not appear in the witness box to explain the circumstances which led to execution of these documents. As such, this plea cannot be entertained. However, documents are relevant in order to ascertain as to what was purchased by the respondentpetitioner and what was let out to the appellantrespondent and for which eviction is sought. Perusal of GPA RCT No. 24/11 & 31/11 Page 12/16 13 goes to show that appellant sold 25 Sq. Yards of land, out of Khasra No. 1 situated at village Maujpur, Shahdara, Delhi53. As per the rent agreement, the appellant was to let out one room set in the land measuring area 25 Sq. yards, out of Khasra No.1 situated in the area of village Maujpur, Shahdara, Delhi. A perusal of legal notice dated 05.03.2001goes to show that notice was sent in regard to premises comprising of 25 Sq. Yards area situated at Khasra No.1, Village Maujpur, Shahdara, Delhi. However, the eviction petition was filed in regard to one room, one bathroom, open space and shop and a site plan was also filed to this effect. Under these circumstances, description of the property purchased by the respondentpetitioner and let out to the appellantrespondent is not identical with property for which eviction is sought. In Chiman Lal (supra), Hon'ble Apex Court had observed that a valid notice demanding arrears of rent relatable to the accommodation let to the tenant from which he is sought to be evicted is a vital ingredient of the condition which governs the maintainability of the eviction petition. In the instant case, as stated above, eviction petition has been filed in regard to much more accommodation than one which was let out to the appellant. Under these circumstances, the notice was not valid.
21. ld. counsel for the respondent submitted that since no plea was taken in the written statement regarding validity of the notice, therefore it is RCT No. 24/11 & 31/11 Page 13/16 14 not open the tenant to raise such plea at this belated stage. This submission, though seems to be attractive, does not have force inasmuch as various submissions made regarding the service of notice and its validity goes to the root of the matter and therefore in order to ascertain whether the impugned order is sustainable in the eyes of law, such pleas cannot be brushed aside. At any rate, even if it is presumed that in absence of taking plea regarding validity of the notice in the written statement and such submission cannot be entertained at this stage, even then, it is incumbent upon the landlordpetitioner to prove all essential ingredients of section 14(1)(a) DRC Act, one of which is that eviction petition can be filed only after expiry of period of two months of notice of demand. However, in the instant case, even before expiry of this period of notice, the eviction petition has been filed, therefore the same is pre mature and this submission cannot be overlooked.
22. Another plea taken by the ld. counsel for appellant is that ld. Trial Court has passed composite order, inasmuch while observing that petitioner is entitled to eviction order, order under section 15(1) DRC Act has also been passed. Therefore, the order unsustainable. Reliance was placed on M/s Globetech Engineers vs. Ajay Chadha & Ors., 2002 (2) RCR 395. With due respect, this authority does not help the appellant inasmuch as in that case, Rent Controller passed an order directing tenant RCT No. 24/11 & 31/11 Page 14/16 15 to pay entire arrears within one month failing which there will be deemed eviction. Under those circumstances, it was held by Hon'ble High Court that it was a composite order u/s 15(1) as well as an order of eviction u/s 14(1)(a) DRC Act and therefore it was set aside. Things are different here, inasmuch as, since initially no order under section 15(1) DRC Act was passed. Therefore, it was incumbent upon the Trial Court to have passed the order while observing that petitioner has been able to make out a case under section 14(1)(a) DRC Act. The order would have been composite one, if while passing the order under section 15(1) DRC Act, the Rent Controller had passed the order that failure to comply with order u/s 15(1) DRC Act would be deemed to result in eviction order. Therefore this plea is not available to the appellant.
23. However, in view of the discussions made above, since one of the essential ingredient that "notice of demand" has to be served calling upon the tenant to pay arrears of rent has not been proved, moreover the eviction petition itself was premature, having been filed before expiry of two months of notice of demand, therefore eviction order cannot be sustained. Both appeals are accordingly allowed. Impugned orders are setaside. Respondentpetitioner, however, will be at liberty to file fresh eviction petition after complying with statutory provisions of law. A copy of the order along with Trial Court record be sent back.
RCT No. 24/11 & 31/11 Page 15/16
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24. A copy of this order be placed in the connected appeal also. Appeal files be consigned to Record Room.
Announced in the Open Court (Sunita Gupta) On this 6th day of July, 2011. District JudgecumARCT, I/C NE, Karkardooma Courts, Delhi.
RCT No. 24/11 & 31/11 Page 16/16