Delhi District Court
Sh. B.B. Patel vs Sh. Suresh Kumar Gupta on 7 October, 2021
IN THE COURT OF SHRI DINESH KUMAR SHARMA :
PRINCIPAL DISTRICT & SESSIONS JUDGE/RCT,
PATIALA HOUSE COURTS: NEW DELHI
RCT No. 24/2017
Sh. B.B. Patel
Proprietor of M/s Nicolian Bros.
48, Janpath, IInd Floor,
New Delhi110 001.
.....Appellant
Versus
1. Sh. Suresh Kumar Gupta
S/o Late Sh. Murari Lal
48, Tolstoy Lane, Janpath
New Delhi.
2. Ms. Madhu Gupta
(representing Late Smt. Dayawati)
W/o Sh. Suresh Kumar Gupta
48, Tolstoy Lane, Janpath
New Delhi. ......Respondents
AND
RCT No. 03/2020
Sh. B.B. Patel
Proprietor of M/s Nicolian Bros.
48, Janpath, IInd Floor,
New Delhi110 001.
.....Appellant
RCT Nos. 24/2017 & 03/2020
B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 1 of 40
Versus
1. Sh. Suresh Kumar Gupta
S/o Late Sh. Murari Lal
48, Tolstoy Lane, Janpath
New Delhi110001.
2. Ms. Madhu Gupta
(representing Late Smt. Dayawati)
W/o Sh. Suresh Kumar Gupta
48, Tolstoy Lane, Janpath
New Delhi110001. ......Respondents
Date of filing of appeal (RCT No. 24/17) : 23.10.2017
Date of filing of appeal (RCT No. 03/20) : 17.11.2020
Date of arguments : 07.10.2021
Date of judgment : 07.10.2021
JUDGMENT
1. Vide this common judgment, I shall dispose of the aforesaid appeal bearing RCT No. 24/2017 filed under Section 38 of The Delhi Rent Control Act, 1958 ("DRC Act" in short) by the appellant/tenant challenging the impugned judgment dated 10.08.2017 whereby Ld. Rent Controller allowed the eviction petition under Section 14(1)(a) & (j) of DRC Act. This order shall also dispose of the appeal bearing RCT bearing No. 03/2020 RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 2 of 40 filed subsequently challenging the order dated 07.10.2017 whereby the benefit under Section 14(2) of DRC Act was extended to the appellant and an eviction order under Section 14(1)(j) of DRC Act was passed vide order dated 27.01.2018 for eviction of the appellant from the tenanted premises bearing no. 48, 2nd Floor, Janpath, New Delhi110001. Along with the said appeal, an application for condonation of delay was also filed.
2. Briefly stated the facts are that the tenanted premises, consisting of six rooms, one glazed verandah, two W.Cs. and two baths, was let out to the respondent. At the time of letting out the tenanted premises, a lease agreement dated 01.03.1976 was executed for 11 months. The petitioner stated that the copy of the said lease deed is not available on the record of the petitioner. The petitioner further alleged that rent of the premises was Rs.2200/ per month w.e.f. 01.03.2002 excluding all other charges. Initially, a demand notice dated 01.09.2004 was issued to the appellant demanding rent for the period w.e.f. 01.08.2002 to 31.08.2004. It was also alleged that appellant/ tenant has done unauthorized construction of mezzanine in the tenanted premises without the permission and consent of the landlord.
3. The appellant/tenant vide reply dated 18.09.2004 tendered a sum of Rs.66,137.50 covering the rent @Rs.2200/ per RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 3 of 40 month w.e.f. 01.08.2002 till 30.09.2004 amounting to Rs.55,000/ and Rs.11,135.50 as interest for the late payment, without prejudice to his rights and contentions. However, the appellant/tenants have denied the rate of rent @Rs.2200/ per month.
4. Subsequently, the petitioner/landlord served another notice dated 29.11.2004 whereby the rent for October, 2004 sent by the appellant/tenant vide two separate pay orders in the sum of Rs. 267.50 and 1932.50 were returned and the appellant/tenant was directed to send the rent @Rs.2200/. Since, allegedly the tenant did not pay the rent as demanded by the landlord, another notice dated 14.02.2005 was served upon the tenant/appellant. In the said notice, the rent was demanded w.e.f. 01.10.2004 @Rs.2200/ per month and enhanced rent @ Rs.2420/ per month w.e.f. 01.04.2005. The petitioner stated that since the appellant/tenant failed to pay the rent @Rs.2200/ per month w.e.f. 01.10.2004 and @Rs.2420/ per month w.e.f. 01.04.2005, he is liable to be evicted under Section 14(1)(a) of DRC Act.
5. The petitioner has also sought eviction under Section 14(1)(j) of DRC Act, alleging that tenant had demolished the walls of the three rooms and converted the said three rooms into a hall thereby causing substantial damage to the tenanted premises. RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 4 of 40 The appellant/tenant has also allegedly constructed mezzanine floor in the tenanted premises without permission and consent of the landlord/respondent.
6. In the Written Statement, the appellant/tenant denied the rent of the tenanted premises as Rs.2200/ per month. It was stated that the rent was Rs.221/ per month, which was inclusive of electricity and water charges as per lease deed dated 01.03.1976. The plea of the tenant was that earlier, the landlord was taking electricity charges separately, however, the same was later on included in the rent. The appellant/tenant in good faith agreed to pay the rent @Rs.2200/ per month on the above said terms and conditions. The appellant/tenant denied to have made any unauthorized construction or carry out any addition and alteration in the demised premises and stated that the premises is in the same condition as it was let out.
7. The tenant stated that the demand notice dated 01.09.2004 was illegal, however, the tenant, in order to avoid any technicality, complied with the said notice and made the payment within two months without prejudice to his rights and contentions. The plea of the tenant is that thereafter, the tenant continued to tender the rent but the petitioner/landlord refused to receive the said rent illegally. The further plea of the tenant is that the notice RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 5 of 40 dated 14.02.2005 was not a notice of demand. It was stated that the notice dated 14.02.2005 was a notice under Section 6A of DRC Act to increase the rent w.e.f. 01.04.2005, however, it was stated that tenant continued to pay the rent regularly thereafter without any fail.
8. The tenant further asserted that the initially, the lease deed dated 01.03.1976 was executed for 11 months at the monthly rent of Rs.221/, inclusive of electricity and water charges. It was asserted that the landlord will execute a perpetual lease deed after 11 months. It was further stated that landlord, on receipt of sum of Rs.10,000/ at the time of execution of the 11 months' lease, acknowledged the same vide communication and also executed a receipt dated 25.02.1976.
9. The appellant/tenant had also filed a civil suit bearing No. 342/2004 for Specific Performance, Declaration and Injunction. The said suit was dismissed by the Ld. Civil Judge on technical ground. The appeal against the same was also dismissed on technical ground. The appellant filed an RSA No. 243/2014 along with CM No. 15183/2014. The appeal was admitted vide order dated 22.05.2015 as it was found by the Hon'ble High Court that prima facie there is merit in the case of the appellant. Subsequently, the Hon'ble High Court vide order RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 6 of 40 dated 06.01.2016 framed the substantial questions of law in the said appeal. The Ld. Trial Court vide order dated 10.08.2017 allowed the eviction petition under Section 14(1)(a) & (j) of DRC Act. Vide order dated 07.10.2017 the benefit under Section 14(2) of DRC Act was extended to the appellant/tenant. Thereafter, vide order dated 27.01.2018, the Ld. Trial Court passed an eviction order under Section 14(1)(j) of DRC Act for eviction of the appellant from the tenanted premises.
10. The appellant has challenged the impugned order on the ground that Ld. Trial Court has passed the impugned order in ignorance of the law and without proper application of mind. The Ld. Trial Court has committed a grave illegality in law in discarding the entire evidence on the record. The Ld. Trial Court has failed to consider that no rent was due at the time when the petition was filed. The appellant further alleged that the Ld. Trial Court has taken a wrong view in respect of the lease deed and wrongly rejected the same in violation of Section 36 of Indian Stamp Act. The appellant stated that the Ld. Trial Court should have taken into account the lease deed dated 01.03.1976, as it was an admitted document.
11. The appellant/tenant denied the enhancement of rent from Rs.221/ per month to 1100/ per month. It was stated that RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 7 of 40 rent receipts filed on record Ex.PW1/14 to PW1/23 should not have been taken into consideration. The appellant/tenant in fact had executed these documents in good faith. The appellant/tenant denied the site plan Ex.PW1/1 filed by the landlord at the time of inception of the tenancy and the site plan Ex.PW1/24 filed at the time of filing of the eviction petition. The appellant stated that the report of the expert Ex.PW2/1 is totally incredible and should have been rejected. The appellant has asserted that the landlord was aware about the changes as he was frequently visiting the premises. The appellant stated that the impugned order suffers from various infirmities of law and liable to be set aside.
12. The second appeal bearing RCT No. 03/2020 was filed challenging the order dated 07.10.2017 whereby the benefit under Section 14(2) of the DRC Act was extended to the tenant and the order dated 27.01.2018 vide which, an eviction order under Section 14(1)(j) of DRC Act was passed. Along with this appeal, an application for condonation of delay was also filed.
13. During the pendency of the appeal, an application under Section 33 read with Section 31&32 of the Indian Stamp Act read with Section 151 CPC was filed pleading that document dated 01.03.1976 be impounded and be referred to Collector of Stamps.
RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 8 of 40
14. Notice of the appeal was issued to the respondents and Trial Court Record was called.
15. The respondents have not filed their reply, however, they have opposed the appeal.
16. The Ld. Trial Court vide impugned order dated 10.08.2017 has sum up the case under Section 14(1)(a) of DRC Act in para no. 12 of the impugned order. The Ld. Trial Court took into account Ex.PW1/14 to PW1/23 and inter alia held that nowhere in the said letters, it is stated or it is clarified that amount tendered by way of cheque is not only towards the rent but also towards the fixed payment of electricity and water charges. The Ld. Trial Court rejected the contention of the appellant that rent was only Rs.221/ per month and rest of the amount was towards fixed electricity and water charges and same was paid in total in good faith to the petitioner. The Ld. Trial Court also took into account the document Ex.RW1/7(colly) running into thirty five pages wherein from the year 1976 itself, the separate payment was being made towards rent of Rs.221/ per month and electricity and water charges. The Ld. Trial Court was of the view that in view of the meticulous maintenance of record by the appellant, it could not be perceived that the respondent could have tendered the rent and fixed electricity charges by mentioning the RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 9 of 40 same to be rent only. The Ld. Trial Court noted the evidence of PW1 wherein PW1 stated in his crossexamination that appellant had taken NOC from the petitioner for taking a new electricity connection in the premises in suit in his own name. The evidence of RW1 was also taken into consideration by the Ld. Trial Court wherein he admitted that the petitioner was having electricity connection in his name in the premises in suit which was installed about 1520 years back. The Ld. Trial Court did not accept the contention of the appellant that separate electricity connection was taken for the purpose of office and for the rear portion i.e. residential purpose, he had agreed to pay fixed electricity and water charges in view of the fact that this plea was not taken in the written statement.
17. In the impugned judgment, the Ld. Trial inter alia held that rent was increased from time to time and held that landlord is entitled to recover the possession of the premises and that the tendering of two separate cheques for rent and electricity cannot be said to be a valid tender in view of the fact that respondent was already paying single amount by way of cheque or by pay order towards the rent only as per Ex.PW1/14 to PW1/23. The Ld. Trial Court held that though, the respondent had been paying the rent without prejudice to his rights and contentions but the very RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 10 of 40 fact that he had not tendered the rent to the petitioner legally recoverable from him makes him liable to be evicted from the tenanted premises on account of nonpayment of rent under Section 14(1)(a) of DRC Act.
18. In regard to the petition under Section 14(1)(j) of DRC Act is concerned, the Ld. Trial Court in para nos. 16 to 18 inter alia held that in the crossexamination of PW1, the agreement dated 01.03.1976 was allowed to be put on the ground that original agreement was with the petitioner and therefore, it could not be ascertained that the agreement is unstamped and un registered or not. However, respondent during his evidence produced the original of the same and exhibited it as Ex.RW1/1, which was objected to by the Ld. Counsel for the petitioner during its exhibition. The Ld. Trial Court at that time took objection on record and told that objection would be decided at the time of final decision of the case. The Ld. Trial Court also took into account that the original document was seen and returned. Admittedly, the original document was unstamped and unregistered. The Ld. Trial Court inter alia held that since original document was found in the possession of the respondent, which was unstamped and therefore, crossexamination of PW1 on the point of agreement cannot be taken into consideration. RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 11 of 40
19. In regard to the objection as to the genuineness of the site plan Ex.PW1/1 taken by the appellant, Ld. Trial Court noted that no site plan was filed by the respondent. Ld. Trial Court also noted that description of the premises given in the petition was not disputed by the respondent in the written statement and therefore, disputing the site plan is insignificant.
20. The Ld. Trial Court accepted the submission of PW1 regarding the conversion of three rooms into a hall, construction of mezzanine, construction of toilet, removal of kitchen and converted into bedroom. The Ld. Trial Court also noted that the site plan Ex.PW1/24 was disputed by the respondent during his crossexamination only regarding the positioning of certain doors here and there. In regard to the site plan Ex.PW1/24, allegedly prepared at the time of letting out the premises in dispute to the tenant, the Ld. Trial Court did not take into consideration the same as the respondent denied his signatures on the same. The Ld. Trial Court noted that in the written statement, the respondent/tenant had not taken a plea that there was a mezzanine floor at the time of letting out of the premises. The Ld. Trial Court inter alia held that since the petitioner had filed the site plan showing the premises in dispute at the time of filing of the petition, it was upon the respondent to dispute the same. RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 12 of 40
21. In regard to the report of Sh. B.P. Singh, Architect, the Ld. Trial Court rejected the objection of the appellant that the same has been prepared on the basis of site plan handed over by the petitioner/landlord before inspection. The Ld. Trial Court inter alia held that it may be true that the site plan has been prepared on the basis of the information given by the petitioner but the fact remains that this site plan finds mention of a hall, mezzanine floor, which were not existing at the time of the inception of the tenancy as is clear from the description of the property given in the eviction petition which is admitted by respondent in the written statement. The Ld. Trial Court held that as far as these changes, even being presumed to have taken place, have not affected any load bearing walls is of no significance and are untenable as demolition of walls and converting three rooms in a hall amounts to a major alteration and would naturally affect the capacity of the remaining walls to take load of the entire premises on the same. Ld. Trial Court has placed reliance upon Kartar Singh vs. Kesar Singh and Another (1980) 2RCJ1 and held that tenant/respondent is liable to be evicted under Section 14(1)
(a)&(j) of DRC Act.
22. Sh. Amit Kumar, Ld. Counsel for the appellant/tenant submitted that the respondent/landlord had filed a petition under RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 13 of 40 Section 14(1)(a)&(j) of DRC Act on dated 25.08.2007. In the petition, it was admitted that in pursuant to the notice dated 01.09.2004, the appellant/tenant had tendered the entire rent vide reply dated 18.09.2004. The attention of the court was also drawn to the fact that petitioner in para no.14 had admitted that premises in dispute were let out to the respondent in the year 1976 under an agreement which was under stamped and unregistered. It was stated that the agreement was not available in the records of the petitioners. Ld. Counsel submitted that the copy of the said lease deed Ex.RW1/1 has been placed on record. It has further been submitted that the appellant had also filed a suit bearing No. 342/2004 dated 08.11.2004 seeking Declaration, Permanent Injunction and Specific Performance of the contract/written agreement to execute the perpetual lease deed. In the said suit, the plaintiff/appellant has specifically sought a decree of declaration that the actual rent payable to the defendants/respondents in respect of the tenancy premises is Rs.221/ per month besides statutory increase under Section 6A of DRC Act. Ld. Counsel submitted that the eviction petition was filed on 18.11.2007, after filing of the suit.
23. Sh. Amit Kumar, Ld. Counsel for the appellant further submitted that the landlord served a notice dated 29.11.2004 RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 14 of 40 Ex.PW1/4 wherein landlord admitted to have received the entire rent up to 30.09.2004 in pursuance to notice dated 01.09.2004. However, vide this notice, the landlord returned the rent tendered for the month of October, 2004 on the ground that two pay orders in the sum of Rs. 267.50 and Rs.1932.50, alleging former on account of rent and the later on account of lump sump charges including electricity and water charges etc., is not a legal tender. Ld. Counsel submitted that in fact, the appellant had been regularly sending the amount of rent as well as the water and electricity charges separately to the respondents. The attention has also been drawn to the communication dated 05.12.2001 Ex. RW1/10 whereby the licence fee/rent for the period w.e.f. 01.10.2000 to 30.11.2001 @Rs.221/ per month was sent to the landlord and same was duly accepted. Ld. Counsel submitted that this document has not been disputed by the landlord and therefore, the documents as relied by the landlord as Ex.PW1/14 to PW1/23 cannot be looked into. Ld. Counsel submitted that landlord has taken a false plea that amount of Rs.2200/ per month was exclusive of electricity and water charges as at no point of time, any amount on account of electricity charges has been claimed separately. Ld. Counsel submitted that there was no cause of action for the landlord to file the petition under Section RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 15 of 40 14(1)(a) of DRC Act and the Ld. Trial Court should have dismissed the petition on account of nonpayment of rent.
24. Sh. Amit Kumar, Ld. Counsel for the appellant submitted that the Ld. Trial Court has wrongly rejected the rent agreement Ex. RW1/1 dated 01.03.1976 and has wrongly believed the report Ex.PW2/1 of Sh. B.P. Singh. Ld. Counsel submitted that the reasoning given by the Ld. Trial Court regarding Section 14(1)(j) of DRC Act are totally illegal and contrary to the record. Ld. Counsel further submitted that the petitioner/landlord did not file the original site plan with the perpetual lease deed.
25. Sh. Amit Kumar, Ld. Counsel for the appellant invited the attention of the court towards the crossexamination of PW1 recorded on 31.07.2013 whereby the plea of the landlord that they came to know about the unauthorized construction only in August 2004, stood totally falsified. Ld. Counsel also submitted that PW1 also admitted that he has not filed the sanctioned plan. Ld. Counsel further submitted that the petitioner/landlord admitted in the crossexamination that he would not be able to tell about the load bearing walls and other constructions without seeing the sanctioned plan of the property.
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26. Sh. Amit Kumar, Ld. Counsel for the appellant further submitted that the report of Sh. B.P. Singh, is totally unreliable and not credible. Ld. Counsel pointed out the contradictions in the testimony of PW1 & PW2. It was submitted that PW2 stated that he was told by PW1 about the load bearing walls whereby the PW1 in his evidence stated that he does not know anything about the load bearing walls. The attention of the court was drawn towards the crossexamination of PW1 recorded on 31.07.2013 and 23.10.2013.
27. Ld. Counsel for the appellant/tenant has also filed the detailed written submission in support of his contentions.
28. Sh. Sanjay Aggarwal, Ld. Counsel for the respondent submitted that the appeal bearing RCT No. 03/2020 is badly barred by limitation and there is no ground of condonation of delay. Ld. Counsel submitted that as per the pleadings in the appeal, the limitation had started running from 22.07.2020. It was also stated that the appellant has filed a single appeal against the order dated 07.10.2017 whereby the benefit under Section 14(2) of DRC Act was extended to the tenant and order dated 10.08.2017 whereby an eviction order under Section 14(1)(a) of DRC Act was passed. In support of his contention, Ld. Counsel for the respondent has relied upon the judgment of the Hon'ble RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 17 of 40 Supreme Court in Sagufa Ahmed Ors. vs. Upper Assam Plywood Products Pvt. Ltd. Ors. in Civil Appeal No. 30073008 of 2020, decided on 18.09.2020, wherein it was specifically held that what was extended by the order dated 23.03.2020 in Suo Motu Writ Petition (Civil) No. 3 of 2020 was only "the period of limitation"
and not the period up to which delay can be condoned in exercise of discretion conferred by the statute.
29. Sh. Sanjay Aggarwal, Ld. Counsel for the respondent submitted that the details of the description of the accommodation let out was duly mentioned in para no.8 of the petition, which was not disputed by the tenant in the written statement. It has further been submitted that in reply to the para no.11 of the petition, the appellant/tenant in his written statement had not specifically denied the service of notice dated 14.02.2005. Ld. Counsel further submitted that in para no.2 of the additional pleas of written statement filed by the respondent, it was stated that tenant had admitted the description of the premises as 'six rooms, one glazed verandah, two W.Cs and two bath having approach from the front staircase from Janpath with complete terrace thereon connected by the back circular stairs @ constructing mezzanine floor in the front portion towards main Janpath Road'.
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30. Sh. Sanjay Aggarwal, Ld. Counsel for the respondent further submitted that since the rent had been enhanced by mutual contract, the agreement dated 01.03.1976 stands waived. Ld. Counsel submitted that in terms of notice dated 01.09.2004 Ex.PW1/2, the appellant/tenant had tendered the rent as demanded vide reply dated 18.09.2004 Ex.PW1/3. It has further been submitted that thereafter, the respondent served a fresh notice dated 29.11.2004 Ex.PW1/4 whereby the invalid tender by the appellant/tenant was refused. Ld. Counsel relied upon the documents Ex.PW1/14 to PW1/23 and submitted that the tenant had tendered the rent at Rs.221/ per month of December 1989 vide Ex.PW1/14. Subsequently, the rent was remitted @ Rs.1100/ per month along with letters Ex.PW1/15 to PW1/19 and thereafter, the rent was remitted @ Rs.2000/ per month along with letters Ex.PW1/20 to PW1/23.
31. Sh. Sanjay Aggarwal, Ld. Counsel for the respondent has relied upon the judgment of Hon'ble Supreme Court in Karnani Properties Ltd. vs. Augustin in Civil Appeals No. 32 to 34 of 1955 & decided on 09.11.1956, wherein it was inter alia held that to determine the standard rent, all the payments that constituted the agreed rent would have to be taken into consideration.
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32. Sh. Sanjay Aggarwal, Ld. Counsel for the respondent has further relied upon the judgment of Hon'ble Supreme Court in Puspa Sen Gupta vs. Susma Ghose in Civil Appeal No. 3106 of 1989 & decided on 20.04.1990, wherein it was inter alia held that although, the expression 'rent' has not been defined, there are indications in the present Act to suggest that the word 'rent' includes not only what is strictly understood as rent, but also payment in respect of amenities or services provided by the landlord under the terms of the tenancy.
33. Ld. Counsel for the respondent has also placed reliance upon the judgment of Hon'ble Supreme Court in K.K. Krishnan vs. M.K. Vijaya Raghavan (1980) 4 SCC 88, to buttress his point that in respect of perpetual lease deed, the landlord is allowed to seek eviction if there exist a ground, as provided under Section 14 of the DRC Act.
34. Ld. Counsel for the respondent has also relied upon the judgment of Hon'ble Delhi High Court in Hem Chand vs. Hari Kishan Rohtagi in S.A.O. Nos. 112 and 113 of 1979, decided on 23.02.1996, to state that even if the lease deed 01.03.1976 is taken into consideration, the said lease had already expired by efflux of time and therefore, the terms granted in the said lease is of no consequences.
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35. Sh. Sanjay Aggarwal, Ld. Counsel for the respondent has further relied upon the judgment of Hon'ble Supreme Court in Central Warehousing Corporation, Berhampur vs. M/s Govinda Choudhury & sons AIR 1989 Ori 90, to emphasis that landlord was still within his right to refuse the tender of rent by the tenant by way of two demand drafts.
36. I have heard Ld. Counsel for the parties and perused the record carefully.
37. The eviction petition has been filed on two grounds i.e. under Section 14(1)(a)&(b) of DRC Act. The Ld. Trial Court vide the impugned judgment has allowed the petition on both grounds vide oder dated 10.08.2017. The appellant/tenant aggrieved of this preferred the appeal bearing RCT No. 24/2017 along with the application for condonation of delay. The delay in filing of this appeal was condoned vide order dated 04.01.2018. The second appeal bearing RCT No. 03/2020 was presented on 17.11.2020, challenging the orders dated 07.10.2017 and 27.01.2018 whereby respectively the benefit under Section 14(2) of DRC Act was extended to the appellant/tenant and eviction order under Section 14(1)(j) of DRC Act was passed as there was no compliance of Section 14(10) of DRC Act. This appeal is also accompanied with an application for condonation of delay. RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 21 of 40
38. During the course of submissions, Ld. Counsel for the respondent has vehemently opposed the application for condonation of delay and has submitted that there is no ground for condonation of unexplained delay.
39. It is a settled proposition that the endeavor of the court should be to decide the case on merits and the doors of the court should not be shut for the litigants on technical grounds. The impugned order dated 10.08.2017 was already under challenge whereby the eviction petition on the ground of nonpayment of rent and causing substantial damages to the demised premises, was allowed. Further subsequently, the orders dated 07.10.2017 and 27.01.2018 were passed. I consider that these two orders actually merged with the initial impugned order dated 10.08.2017. Even otherwise, the genesis of the entire case lies in the initial impugned order dated 10.08.2017. Hypothetically, if suppose the second petition is rejected merely on the ground of limitation then what would be the fate of earlier appeal bearing RCT No. 24/2017. The fate of the second appeal would naturally depend upon the decision of the first appeal. Thus, I consider that merely dismissing the appeal bearing RCT No. 03/2020 on ground of limitation would be a travesty of justice. The court also cannot be oblivious of the exceptional circumstances during the pandemic RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 22 of 40 period. The procedure is handmaid of justice. The appeal against order dated 10.08.2017 was already pending and therefore, dismissal of appeal filed subsequently will be taking hyper technical view.
40. The Ld. Trial Court in the impugned order dated 10.08.2017 has allowed the petition under Section 14(1)(a) of DRC Act as enumerated hereinabove and are not being repeated herein for the sake of brevity. It is a matter of record that initially a notice dated 01.09.2004 was served claiming arrears of rent from 01.08.2002 to 31.08.2004 @ Rs.2200 per month. The entire arrears of rent was paid by the tenant along with interest vide reply dated 18.09.2004. Thereafter, the tenant tendered the rent for the month of October 2004, however, this time, the tenant tendered the rent by way of two demand drafts in the sum of Rs. 267.50 purportedly against the rent and Rs.1932.50 purportedly on account of water and electricity charges. However, the sum total was Rs.2200/ per month. This was refused by the landlord vide notice dated 29.11.2004. However, it is a matter of record that thereafter, the tenant continued to tender the rent by way of demand drats as indicated from the documents Ex.RW1/14 to RW1/45, till July 2009 in the same manner. These demand drafts were continuously refused by the landlord. Now, the question is RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 23 of 40 that the petitioner refused the same on the ground that this was not a valid tender. The Ld. Trial Court has also agreed with the contention of the petitioner and did not take it as a valid tender and thus, allowed the petition under Section 14(1)(a) of DRC Act.
41. The factum of sending all these drafts for the period from 01.03.2005 to 02.07.2009 is not disputed by the respondent/ landlord as reflected in the document Ex.RW1/14 dated 15.05.2020 filed by the Ld. Counsel for the respondent/landlord. This document reflects that from 01.03.2005 to 02.07.2009 continuously the demand drafts were being sent in the same manner by the appellant/tenant and these pay orders were not encashed by the respondent/landlord and returned to the tenant.
42. The Delhi Rent Control Act, 1958, provides protection to the tenant against eviction in cases of applicability of DRC Act. The exceptions are provided under Section 14(1) of DRC Act. The law provides that if any of the conditions as available in the proviso to Section 14(1) of DRC Act exist, the tenant would be liable to be evicted.
43. The bare perusal of Section 14(1)(a) of DRC Act makes it clear that if the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 24 of 40 rent has been served of him by the landlord, he shall be liable for the eviction.
44. There is a dispute as to the rate of rent between the parties. The case of the petitioner is that rate of rent is Rs.2200/ per month, whereas, the plea of the tenant is that it is Rs.221/ per month as per lease deed dated 01.03.1976. Further, the plea of the landlord is that they had enhanced the rent by mutual agreement to Rs.1100/ per month and thereafter, to Rs.2200/ per month as reflected in PW1/15 to PW1/23.
45. It is also a matter of record that tenant had filed a suit for declaration seeking declaration that the rate of rent is Rs.221/ per month as per lease deed.
46. Before proceeding further, it is also necessary to look into the admissibility of the lease deed dated 01.03.1976. The petitioner in his petition himself admitted that lease deed dated 01.03.1976 was executed, however, his plea was that the same is not available in the record. In the crossexamination recorded on 01.06.2011, the petitioner admitted that rent agreement was executed with the respondent and has also admitted that the document Mark A was the same document, which was executed at the time of creation of tenancy. The petitioner also admitted in the crossexamination recorded on 23.11.2011 that other than the RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 25 of 40 rent agreement dated 01.03.1976, there was no other document or agreement executed between the parties.
47. The petitioner has also admitted in the cross examination recorded on 03.07.2013 that at the time of letting out the premises, the monthly rent was Rs.221/ exclusive of electricity and water charges, which was later on enhanced to Rs.1100/ per month by mutual consent in the year 1991. Further, in the crossexamination recorded on 31.07.2013, the petitioner stated that Mark A is a genuine document and it bears their signatures as per the photocopy shown to him. It was further stated by the PW1 in the further crossexamination that he did not know that who is in possession of the original rent agreement dated 01.03.1976, however, he did not find the original agreement dated 01.03.1976 in the records left by his parents nor did he find the photocopy of the agreement.
48. It is pertinent to mention herein that in the cross examination recorded on 01.06.2011, while the document Mark A was put to PW1, an objection was raised by the Ld. Counsel for the petitioner, which was overruled and question was allowed.
49. The respondent along with his affidavit Ex.RW1/A filed this document as Ex.RW1/1. While, this document was tendered on 09.03.2016, Ld. Counsel for the petitioner objected to RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 26 of 40 the exhibition of Ex.RW1/1, firstly, on the ground that the said document is not a complete document as the site plan mentioned in Ex.RW1/1 is not annexed with Ex.RW1/1 and secondly, that the said document is an unstamped and unregistered document.
50. The document Mark A was put to the PW1 first time on 01.06.2011. The objection raised by the Ld. Counsel for the petitioner was overruled and the question was allowed. In the order dated 01.06.2011, there is no mention of any objection having been taken by the petitioner. Similarly, the respondent tendered the lease deed Ex.RW1/1 on 09.03.2016 whereby an objection was taken on the ground that it is not a complete document as the site plan mentioned in Ex.RW1/1 is not annexed with Ex.RW1/1 and is unstamped and unregistered. In the record of ordersheets, there is no order as to the objection being taken by the petitioner. However, the order dated 09.03.2016 merely states that objection of the Ld. Counsel for the petitioner shall be decided at the time of final disposal.
51. I consider that the procedure adopted by the Ld. Trial Court is totally erroneous. Initially, the objection raised by the petitioner on 01.06.2011 was merely allowed and secondly, if the objection as reflected in the order dated 09.03.2016 was recorded regarding the admissibility of Ex.RW1/A, that should have been RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 27 of 40 decided then and there. I consider that the Ld. Trial Court failed to follow the provisions of Indian Stamp Act, 1899. Section 33 of Indian Stamp Act mandates that an unstamped document to be impounded. The reference is also to be made to the Section 36 of the Indian Stamp Act whereby if an instrument had been admitted in the evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not duly stamped. The tendency of the court of not deciding the objection at the time when it is taken, causes unnecessary complication and the endeavor should be made to decide the objection then and there.
52. The Ld. Trial Court in the impugned judgment has taken a note of the objection raised by the Ld. Counsel for the petitioner regarding exhibition of document Ex.RW1/1 and held that objection was taken by the petitioner at every point of time and initially, during the crossexamination of petitioner, this document was allowed to be put by the respondent on the ground that original of the same was with the petitioner. However later on, the original of this document was produced by the respondent during his evidence. The Ld. Trial Court totally discarded the admission of PW1 regarding this document, which had appeared RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 28 of 40 in his crossexamination. I consider that the approach of the Ld. Trial Court is not just & proper. As regard to the original of the document produced during the evidence, the respondent had specifically stated that original has been seen and returned. Ld. Trial Court has also mentioned as such in the record of evidence on 09.03.2016. I have also perused this document. This document is a second copy of the agreement. It is a matter of common knowledge that whenever any agreement is executed between the landlord and tenant, the first copy remains with the landlord and the second copy remains with the tenant. It is also pertinent to mention herein that this document was executed in the year 1976 when the computers were not in place. Such agreements were used to be typed or written with a carbon. In such a case, if the landlord does not produce the first copy and merely states that it is not available on record, then the case of the respondent cannot be shut merely by saying that petitioner is not relying upon the said document. The correct procedure should have been that this document could have been impounded by the Ld. Trial Court and sent to the Collector of Stamp for stamping. However, I consider that now referring the case back to the Ld. Trial Court for stamping would unnecessarily delay the trial. It is also furthermore not required for the reasons that petitioner has RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 29 of 40 not disputed the genuineness of this document. The petitioner implicitly has admitted such document in evidence and therefore, taking help of Section 36 of the Indian Stamp Act, this document can be read.
53. Now coming back to the rate of rent as discussed hereinabove, which is also pointed out in the suit for declaration as Rs.221/ per month as per lease deed dated 01.03.1976. However, this suit was dismissed on technical ground. The first appeal was also dismissed by the Ld. ADJ, however, in the RFA, the Hon'ble High Court of Delhi has been pleased to frame questions on law and matter is pending disposal. Thus, the question as to the rate of rent is yet to be adjudicated by the Hon'ble High Court of Delhi.
54. In respect of rate of rent, there are different versions being put up by both the parties. It is an admitted fact that initially, the rent was Rs.221/ per month and this continue up to, even as per the petitioner, till 1989 and thereafter, the rent was enhanced by mutual consent to Rs.1,100/ and subsequently to Rs.2,200/ per month. The respondent has also referred to a document Ex.RW1/10 dated 05.12.2001 whereby by the rent for the period w.e.f. 01.10.2000 to 30.11.2001 @Rs.221/ per month is being tendered. This document has not been disputed by the RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 30 of 40 landlord. It is also to be kept in mind that appellant/tenant had continuously been tendering a sum of Rs.2,200/ per month to the landlord and this fact has been admitted by the respondent in the crossexamination recorded on 31.07.2013. Petitioner admitted that total amount tendered to him was Rs.2,200/ per month. Petitioner also admitted that respondent had been sending drafts to him and that he was refusing the same in the same fashion. In the impugned judgment, the Ld. Trial Court allowed the petition under Section 14(1)(a) of DRC Act, predominantly, on the ground that appellant/tenant tendered the rent in such a manner that it was not a valid tender. It is not disputed that total sum of Rs.2200/ was being tendered by the tenant to the landlord from month to month. It is also an admitted fact that this amount was tendered by pay orders and not by cheques. The ground for nonpayment of rent has been put to evict the tenant who failed to pay the rent. This ground cannot be used by the landlord to make it a ground for eviction. This is not the case whether the tenant has tried to not make the payment of rent. There is a disputed question as to the rate of rent, which is pending before the Hon'ble High Court. The tenant was not tendering any amount lesser than what was claimed by the landlord. The only difference was that as per the tenant, it included the electricity and water charges, whereas, the RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 31 of 40 plea of the landlord was that rent was exclusive of electricity and water charges. It is pertinent to mention herein that the petitioner/landlord had not claimed any separate charges on account of electricity meter. The Ld. Trial believed the version of the landlord that since a separate electricity meter had been installed, therefore, there was no question for the landlord to claim the electricity charges separately. However, it is a matter of record that the petitioner has not led any evidence in this regard. The plea of the respondent that electricity charges was in respect of rear residential portion, was not believed by the Ld. Trial Court. I consider that rejection of the case of the landlord by the Ld. Trial Court was unreasonable and unjustifiable, particularly, when the question of rate of rent is yet to be determined by the Hon'ble High Court of Delhi. Thus, I consider that the order with regard to Section 14(1)(a) of DRC Act cannot be sustained in the eyes of law as there was no cause of action for the landlord to proceed with the petition on the ground of nonpayment of rent.
55. Now, coming to the eviction petition under Section 14(1)(j) of DRC Act, the protection has been provided to the landlord where the tenant has caused substantial damages to the premises. It is a settled proposition that any addition or alteration would not make the tenant liable for eviction unless the said RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 32 of 40 addition and alteration has caused substantial damages to the premises. It is also a settled proposition that damages to the premises has to be seen from the perspective of the landlord and not from the perspective of the tenant. However, the court cannot forget that the party who approaches the court is liable to prove its case. Though, in the civil cases, the plaintiff has to prove the case on the preponderance of probability. However, the case of the petitioner cannot be allowed on the ground that respondent has failed on certain scores, as has been stated by the Ld. Trial Court in the impugned judgment.
56. The petitioner in his affidavit in para no. 7 has stated that the respondent has caused and permitted to be caused substantial damages to the demised premises by constructing the mezzanine floor in the front portion towards the Main Janpath Road, without obtaining the consent in writing of the petitioners. The petitioner has further stated that the respondent carried out demolition of the walls of the three rooms and converted the said three rooms into a hall. The respondent also made other additions and alterations in the tenanted premises without obtaining the consent of the petitioners. The petitioner has further stated that no permission for raising the said construction was obtained by the respondent from the NDMC and the petitioners.
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57. The petitioner has also placed on record the site plan Ex.PW1/1 as existing at the time of inception of the tenancy and Ex.PW1/24 as existing at the time of filing of the eviction petition. The petitioner has also filed the site plan Ex.PW1/25, which was signed by both the parties at the time of inception of tenancy, however, the Ld. Trial Court has not taken into account the said site plan Ex.PW1/25.
58. The plea of the appellant is of two fold. Firstly, that he has not carried out any addition or alteration and that the addition and alteration was carried out by the landlord himself and secondly, in any case, the tenant was permitted to carry out the addition or alteration in view of Clause 11 of the Ex.RW1/1.
59. In the crossexamination recorded on 03.07.2013, the petitioner stated that he cannot say the exact date when the alterations/additions have been made out in the rented premises but he had seen the additions/alteration in the month of August, 2004 and thereafter, filed the present petition in this regard.
60. In the crossexamination recorded on 31.07.2013, the petitioner also admitted that he had been visiting the tenant once in three months or six month since 1976 and they sometime used to meet on staircase and on few occasions in the office of the tenant as shown in MarkX in site plan which is correct as per the RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 34 of 40 site. In his crossexamination recorded on 31.07.2013, the petitioner admitted that there was a sanctioned plan of the entire property including the tenancy premises, however, he has not filed the same. PW1 further stated that he had not seen the sanctioned plan of the building personally. PW1 further stated that he would not be able to tell anything about the load bearing walls and other constructions without seeing the sanctioned plan of the property.
61. In the further crossexamination recorded on 31.07.2013, the petitioner admitted that they had allowed the respondent to use the property for commercial purpose and also to do modification and alteration, as per clause 11 of the agreement. PW1 further stated that he did not remember how much time was taken by the respondent in converting the tenanted premises into residentialcumcommercial purposes and modified it for his office use. However, the respondent took possession of the tenanted premises immediately after execution of agreement Mark A.
62. In the crossexamination recorded on 23.10.2013, the petitioner stated that he will not be able to answer any question relating to technical details regarding load bearing walls relating to architecture of the tenancy premises as he is not an expert witness in this regard and only architect can tell that.
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63. The testimony of PW2 Sh. B.P. Singh is to be read along with the testimony of PW1 Sh. Suresh Kumar. PW2 in his affidavit Ex.PW2/A stated that he inspected the second floor of 48, Janpath, New Delhi, on 04.09.2014 in the presence of appellant. PW2 stated that PW1 had supplied the site plan of second floor to him depicting the tenanted premises at the time of letting out the same to the respondent. PW2 further stated that appellant/tenant had carried out several alterations & alterations and caused substantial damages to the property, which have been mentioned in his report Ex.PW2/1. In his report Ex.PW2/1, PW2 Sh. B.P. Singh stated as under :
"1. The site plan of the Second Floor as existing at the time of letting out to the respondent was supplied to me by Shri Suresh Kumar. The said plan is annexed with my report as Annexure 'A'.
2. I had prepared the rough notes/plan about the existing construction on the Second Floor and from the same prepared the site plan of the existing construction thereof which is annexed with my report as Annexure 'B'.
3. The above said property comprises of ground floor, first and Second Floor and the property was constructed about 75 years ago and is a RBC structure.
4. The tenant has changed the original construction of the Second Floor.
RCT Nos. 24/2017 & 03/2020 B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 36 of 40
5. The tenant has constructed a mezzanine having a height of about 6' x 0". A wooden partition has also been raised below the said mezzanine. The tenant has constructed stairs for having access to the said mezzanine. The mezzanine and the stairs are shown in BLUE coloured in Annexure 'B'. The tenant has made holes in the loan bearing walls for providing the support to the said mezzanine. The tenant has removed the doors as shown at points A, B, & C as shown in Annexure 'A' and has raised an entire wall and provided one door there. The tenant has thus caused damage to the property & weakened the structure. The construction of the said mezzanine has also resulted in increasing the loan on the floor.
6. The tenant has removed walls and doors of three rooms and converted the same into a big hall. The walls were load bearing walls and the same are shown in RED colour in Annexure 'A'. The tenant has also closed the door as shown at E in Annexure 'A' and has raised a wall in its place.
7. The tenant has also constructed a WC which has been shown in RED colour in Annexure 'B'.
8. The tenant has converted the WC and Bath as shown in YELLOW colour in Annexure 'A' and has converted the same into a kitchen, and has also removed the doors as shown at points F and G in Annexure 'A'.
9. The tenant has also closed the door at point H in Annexure 'A' and has raised a wall in its place.
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10. The tenant has also changed the construction in the portion shown in GREEN colour in Annexure 'A' and has constructed a bathroom and bedroom in its place. By raising of the said construction the passage has been closed. A load bearing wall as shown between X and Y in Annexure 'A' has been removed and the tenant has raised two walls as shown in YELLOW colour in Annexure 'B' which has put extra load on the floor and the building."
64. In the crossexamination, recorded on 11.03.2015, PW2 stated that he cannot say how old is the building, which was inspected by him. PW2 also stated that no site plan of the L&DO was handed over by the petitioner to him before inspecting the premises. PW2 admitted that he had not placed on record the said site plan along with his report. PW2 also admitted that he had prepared rough site plan at the time of inspection, which was available in his office. Admittedly, the same was not produced before the court. PW2 also stated that he had not taken the measurement of the rooms or walls during inspection, however, the wall shown in red colour in Annexure A is the load bearing wall. He also stated that the petitioner had told him that the portion shown in red colour is the load bearing wall.
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65. Now, if we read the testimony of PW1 and PW2 together, PW2 has prepared the report on the basis of information given to him by PW1. Firstly, admittedly, the sanctioned plan has not been placed on record. Only the sanctioned plan could have told about the load bearing walls and other structural details of the premises. Secondly, the petitioner himself stated that he does not know anything about the load bearing walls. Therefore, if the petitioner himself is saying that he was not aware abut the load bearing walls, thus, the report of PW2 itself becomes doubtful and incredible. The Ld. Trial Court in the impugned order has allowed the petitioner under Section 14(1)(j) of DRC Act merely on the ground that three rooms have been converted into a hall. However, the Ld. Trial Court did not take into account the evidence of PW1 vide which, it was stated that they had allowed the modification to be done. I also did not find any evidence on the record which could say that addition or alteration has caused any substantial damages or impaired the utility of the premises. The plea of the tenant could not have been rejected merely on the ground that he has not examined any expert. It was for the petitioner to prove his case in accordance with law. I consider that the impugned order in the present form cannot be sustained in the eyes of law. The aforesaid appeals are therefore, allowed.
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66. TCR be sent back along with copy of the judgment.
67. Appeal files be consigned to Record Room.
DINESH Digitally signed by
DINESH KUMAR SHARMA
KUMAR Date: 2021.10.07 17:49:10
SHARMA +0530
Announced in the (DINESH KUMAR SHARMA)
open court on Principal District & Sessions Judge/RCT
07.10.2021 Patiala House Courts, New Delhi
RCT Nos. 24/2017 & 03/2020
B.B. Patel vs. Suresh Kumar Gupta & Ors. Page No. 40 of 40