Delhi District Court
Smt. Leela Jha W/O Shri Sri Kant Jha vs Sudhir Kumar Singh S/O Sh. Surender ... on 24 January, 2011
1
IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVIICUM
ADDITIONAL RENT CONTRON TRIBUNAL : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
RCT No. 71/10
Unique Case ID No. 02402C0183172010
Smt. Leela Jha W/o Shri Sri Kant Jha,
R/o D527, Gali No.13,
Bhajanpura, Delhi. .........Appellant.
vs.
Sudhir Kumar Singh S/o Sh. Surender Singh,
R/o D801, Gali No.20B,
Near Sunni General Store, Bhajanpura,
Delhi. ........Respondent.
Date of Institution : 07.07.2010
Date of reserving the Order : 24.01.2011
Date of Pronouncement : 24.01.2011
O R D E R : Feeling aggrieved by the order dated 10.05.2010 passed by Sh. Praveen Singh, ld. ARC, in eviction petition No. E217/09, whereby the petition under section 14(1)(a) Delhi Rent Control Act, 1958 (hereinafter referred to as the DRC Act) was dismissed, present appeal has been filed.
2. Briefly stated facts giving rise to filing of present appeal are that appellantpetitioner filed eviction petition under section 14(1)(a) DRC Act against the respondent inter alia on the allegations that she is the landlady RCT No. 71/10 Page 1/11 2 of the premises bearing No. D801, Gali No.20B, near Sunni General Store, Bhajanpura, Delhi. Respondent is her tenant in respect of one room, kitchen, latrine and bathroom situated in this premises @ Rs.1,300/ pm, excluding electricity and water charges. Tenancy was created on 25.08.07 by virtue of oral agreement. It was further alleged that the respondent has not paid any rent since December, 2008, despite repeated requests and demands. As such legal demand notice dated 01.04.09 was duly served upon the respondent, vide registered AD post as well as UPC, but the respondent did not comply with the notice. Hence, eviction petition was filed.
3. Petition was contested by the respondent, who filed written statement wherein preliminary objections were taken inter alia on the ground that respondent is not in arrears of rent. It was submitted that petitioner had not issued any rent receipts to the respondent, despite the fact she had received rent @ Rs.600/ pm till January, 2009 from the respondent. Thereafter, the petitioner refused to accept the rent from respondent since January, 2009. Thus, the respondent deposited rent @ Rs.600/pm from February, 2009 vide DR petition. On merits, relationship of landlord and tenant between the parties admitted. However, the rate of rent of Rs.1,300/pm was denied and it was submitted that same is Rs. 600/pm, excluding electricity and other charges. Service of legal notice of RCT No. 71/10 Page 2/11 3 demand was admitted. But it was submitted that notice was duly replied. It was denied that respondent was in arrears of rent w.e.f. December, 2008.
4. Both parties examined themselves. After perusing evidence led by the parties, ld. Trial Court came to the conclusion that petitioner has failed to prove that rate of rent was Rs.1,300/pm. As such rent was taken as Rs.600/pm. Service of notice of demand was admitted. As regards arrears of rent, it was observed that respondent had proved that rent was paid upto January, 2009 and w.e.f. February, 2009 to 01.04.2009, the rent was deposited by filing DR petition within two months of service of legal demand notice. As such petition was without any cause of action and same was dismissed.
5. Feeling aggrieved by this order, present appeal has been filed. Along with appeal, there is also an application under section 5 of the Limitation Act for condonation of delay in filing the appeal.
6. Notice of the appeal was given to the respondent. Trial Court record was summoned.
7. I have heard Sh. Jai Mohan, Advocate, for the appellant and Sh. Harinder Singh, Advocate, for the respondent, and have perused the record.
8. It was submitted by ld. counsel for the appellant that Trial Court fell in error while arriving at the conclusion that rate of rent was Rs.600/pm or RCT No. 71/10 Page 3/11 4 that respondent was not in arrears of rent. As such order deserves to be setaside.
9. Per contra, it was submitted by ld. counsel for the respondent that there is no infirmity in the order passed by ld. Trial Court and after examining evidence led by the parties and documentary evidence, the impugned order has been passed, which does not suffer from infirmity. As such appeal is liable to be dismissed. It was further submitted that appeal is barred by time. No sufficient ground has been disclosed for not filing the appeal within time. As such appeal is liable to be dismissed on this ground also.
10. In this regard, it was submitted by ld. counsel for the appellant that father of appellant was lying seriously ill, as such she had gone to her native village in Bihar, and ultimately her father expired on 18.06.2010. The appellant returned back only on 01.07.2010 and therefore could not contact the counsel prior to this period. Therefore the delay has occurred in filing the appeal and same is liable to be condoned.
11. Controverting the submission of ld. counsel for the appellant, it was submitted by ld. counsel for the respondent that as per death certificate provided to him, death of father of appellant had taken place on 19.06.2010. The period of limitation had expired much prior to death. Therefore this plea is not available to the appellant, and as such there is RCT No. 71/10 Page 4/11 5 no ground to condone the delay in filing the appeal.
12. I have given my considerable thoughts to respective submissions of the ld. counsel for the parties and have perused the record carefully.
13. First of all I shall take up application under section 5 of the Limitation Act moved by the appellant for condonation of delay in filing the appeal. Section 38(2) DRC Act itself provides for limitation to file an appeal. This section reads as under : "(2) An appeal under subsection (1) shall be preferred within thirty days from the date of the order made by the Controller:
Provided that the Tribunal may entertain the appeal after the expirty of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time."
A bare perusal of this subsection goes to show that limitation for filing appeal before Rent Control Tribunal is 30 days from the date of passing of order by the Rent Controller/Additional Rent Controller.
14. In the instant case, the impugned order was passed on 10.05.2010. The appeal has been filed on 07.07.2010, as such on the face of it, the appeal has been filed after expiry of period of 30 days of passing of the order. That being so, it is barred by time.
15. Question for consideration comes as to whether there are sufficient grounds for condonation of delay in filing the appeal. It is alleged in the RCT No. 71/10 Page 5/11 6 application that father of the appellant had expired on 18.06.2010 at his native village Hirini, District Darbhanga, Bihar and the appellant had to go to her native village and returned back on 01.07.2010 morning. As such she could not contact her counsel and prepared the appeal within stipulated period. Although death certificate was not enclosed along with application, however, during the course of arguments, counsel for the respondent filed photocopy of death certificate, according to which death had taken place on 19.07.2010. As per section 38(2) DRC Act, appeal was required to be filed by 10.06.2010. As such if death of father of appellant had taken place on 18/19062010, the period of limitation had expired much prior. Therefore, this plea is not available to the appellant for condonation of delay in filing the appeal.
16. However, during the course of arguments, it was submitted by the ld. counsel for the appellant that father of the appellant had fallen seriously ill much prior to his death, and therefore appellant had gone to the village much prior to that. However, this fact remained to be incorporated in the application. Even if that is so, it is not stated even during the course of arguments as to when she had gone to village and when her father fell ill. As such appellant had failed to prove that she was prevented by sufficient cause from filing appeal in time. That being so, there is no ground for condonation of delay in filing the appeal. As such since appeal is barred RCT No. 71/10 Page 6/11 7 by time, it is liable to be dismissed on this ground alone.
17. Even on merits, the appellant has no good case, inasmuch as, this is an eviction petition filed under section 14(1)(a) DRC Act. It is incumbent upon the petitioner to prove following essential ingredients for filing eviction petition u/s 14(1)(a) DRC Act, which are as follows : (1) Relationship of landlord and tenant.
(2) Service of notice of demand for the arrears of rent by the landlord upon 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.
18. Perusal of pleadings of the parties goes to show that there is no dispute regarding relationship of landlord and tenant between the parties and that before filing eviction petition, the legal notice of demand Ex.PW1/B was duly served upon the respondent, to which he had submitted the reply. The basic controversy between the parties is regarding rate of rent as well as arrears of rent.
19. As regards the rate of rent is concerned, it is the case of petitioner that she had let out premises to the respondent @ Rs.1,300/ pm, RCT No. 71/10 Page 7/11 8 excluding electricity and water charges. However, according to the respondent the premises were let out at a monthly rate of Rs.600/pm, excluding electricity charges, but inclusive of water charges. Both parties examined themselves in order to substantiate their cases. There was only oral testimony of the parties and no documentary evidence was available, inasmuch as, neither any rent agreement was executed at the time of letting out of the suit premises nor any rent receipt was issued by the petitioner. That being so, only the oral testimony of parties were required to be scrutinized. The appellant filed her affidavit by way of her examinationinchief and in this affidavit, it was submitted that premises were let out @ Rs.1,300/pm since 25.08.07. Although the rate of rent was Rs.1,300/pm, however, respondent was making payment of only Rs. 600/pm in breach of contract and violation of law. Meaning thereby that as per case of the petitioner herself, although the date of rent was Rs. 1,300/pm, but the respondent was paying rent @ Rs.600/pm only. Although the tenancy was created in August, 2007 and the legal demand notice was issued in April, 2007, at no point of time the petitioner objected to paying of rent @ Rs.600/pm by the respondent. This conduct of the petitioner in not raising any objection throughout this period creates doubt as to whether rent was Rs.1,300/pm because, if that had been so, it does not appeal to reason that for complete more than two years, she would be RCT No. 71/10 Page 8/11 9 receiving almost half of the rent without any protest. Moreover, if according to her the rent was Rs.1,300/ pm and the respondent was paying Rs.600/pm in this entire period, even in legal notice of demand she has not claimed balance of arrears of rent for this period. Moreover, section 26 of the DRC Act enjoins a duty upon the landlord to issue rent receipts. If the petitioner had fulfilled this obligation on her part of issuing rent receipts that would have clinched the issue. Under these circumstances, in view of the fact that there is no documentary evidence to throw light on this issue, coupled with the fact that as per version of the appellant herself, respondent had been paying rent to her @ Rs.600/pm, which was received by her without any protest. ld. Trial Court rightly came to the conclusion that petitioner had failed to prove that rate of rent was Rs.1,300/pm and the same was taken as Rs.600/pm, excluding electricity and water charges.
20. As regards arrears of rent, the petitioner has deposed that respondent has not paid rent @ Rs.1,300/ pm from December, 2008 till filing of the petition. She denied the suggestion that respondent has paid rent upto January, 2009. On the other hand, the respondent deposed that he had paid rent till January, 2009 to the petitioner and thereafter rent was sent by money order, but the petitioner refused to receive the same. As such rent for the month of February to April, 2009 was deposited by filing RCT No. 71/10 Page 9/11 10 DR petition. Here again except for oral testimony of the parties, there is no documentary evidence to throw light on this issue. The testimony of the respondent that he had paid rent till January, 2009 was not challenged, inasmuch as, no suggestion was given to him in crossexamination since when he had not paid rent to the petitioner. Under these circumstances, the testimony of respondent that he had paid rent upto January, 2009 stands unrebutted. Therefore, it was rightly observed by ld. Trial Court that when legal notice of demand was sent upon the respondent, he was in arrears of rent for the month of February and March, 2009.
21. According to respondent, on failure of the petitioner to accept rent, same was sent by money order. Even that was refused. Thereupon, rent w.e.f. 01.02.09 to 01.04.09 was deposited by filing petition under section 27 DRC Act. This deposit was made within two months of service of legal notice of demand. Under these circumstances, it becomes clear that arrears of rent was deposited within two months of service of notice of demand. That being so, he had complied with legal notice. Accordingly, it was rightly observed by ld. Trial Court that petitioner has no cause of action to file petition and the same was rightly dismissed. There is absolutely no infirmity in the order passed by ld. Trial Court, which calls for any interference.
22. While passing over, it may be mentioned that this appeal itself is not RCT No. 71/10 Page 10/11 11 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, appeal is not maintainable.
23. In view of the discussions made above, appeal is not maintainable. Even otherwise, same does not suffer from any infirmity which calls for any interference and it is also barred by time. As such appeal is dismissed. 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 24th day of January, 2009. District JudgeVII/NEcumARCT, Karkardooma Courts, Delhi.
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