Delhi District Court
Sh. Raj Kumar vs Sh. Vijay (Since Dead) on 20 September, 2012
IN THE COURT OF SH. DEVENDER KUMAR, CCJ-CUM-ARC (WEST),
TIS HAZARI COURTS, DELHI.
E-74/11
Sh. Raj Kumar
S/o Late Sh. Chandu Lal,
R/o H. No. B-347, 2nd Floor,
Raghubir Nagar, New Delhi.
......Petitioner
VERSUS
Sh. Vijay (since dead),
Represented by LRs.
1. Smt. Krishna
W/o Late Sh. Vijay Kumar (wife of deceased respondent no. 1).
2. Sh. Sandeep Kumar
S/o Late Sh. Vijay Kumar (Son of deceased).
3. Smt. Bala
Daughter of Late Sh. Vijay Kumar wife of not known (daughter of deceased).
4. Sh. Rajinder Kumar
S/o Late Sh. Vijay Kumar
All 1-4 resident of:
A-446, 25 Square Yards,
Raghubir Nagar, J. J. Colony,
New Delhi.
......Respondents
Date of institution : 19/08/2004
Date of decision : 20/09/2012
E-74/11 Raj Kumar Vs. Vijay 1/11
JUDGMENT
Vide this judgment, I shall dispose off a petition U/s 14 (1) (a) (b) & (j) of DRC Act filed by the petitioner against the respondent. Brief facts of the case are as under:
1. The petitioner has alleged himself to be the owner and landlord of the shop measuring 12'X7' situated in property bearing House No. B-347, Raghubir Nagar, Delhi - 110 027, let out to the respondent no. 1 on the monthly rent of Rs.
625/- per month which was later on enhanced to Rs. 687.50/- per month. It is further alleged that the shop was initially let out in the year 1979 without any written document, but the respondent no. 1 has sub-let the possession of the tenanted premises to the respondent no. 2 without knowledge and written consent of the petitioner and now the respondent no. 2 is in possession of the tenanted premises. It is further alleged that the respondent has substantially damaged the shop without the permission of the petitioner and the petitioner has also lodged a complaint against the respondent with the concerned police on 18/07/2003, but nothing could be done. It is further alleged that the respondent no. 1 has not paid the rent during the period from October 2001 to August 2003 @ Rs. 625/- per month and thereafter from May 2004 till filing of the petition @ Rs. 687.50 per month. It is further alleged that the respondent no. 2 has deposited the rent U/s 27 of DRC Act from September 2003 to 10/05/2004, but it is of no use as respondent no. 2 is not the tenant of the petitioner. It is further alleged that the factum of said tenancy came into the knowledge of the petitioner when the respondent no. 2 filed a petition U/s 45 of DRC Act, which is still pending. It is further alleged that the respondents have substantially damaged the tenanted premises without the permission of the petitioner and again plastered the same without the permission of petitioner. It is further alleged that the property has came into the possession of the petitioner after the death of his father and the petitioner has became the absolute owner and landlord of the tenanted premises and E-74/11 Raj Kumar Vs. Vijay 2/11 this fact was duly communicated to the respondent no. 1. It is prayed that an eviction order be passed against the respondents.
2. The respondent have filed a joint Written Statement thereby alleging that the suit property is situated in slum area as this petition has been filed without permission and the same is liable to be dismissed. It is further alleged that the respondent no. 1 has never sublet the tenanted premises to the respondent no. 2, whereas the respondent no. 2 is himself as independent tenant in the tenanted premises. It is further alleged that the father of the petitioner who was the owner of the tenanted premises, has expired leaving behind three sons, but other sons have not been impleaded party in this petition and this petition is not maintainable. It is further alleged that the petitioner sent a notice dated 27/05/2004 after sending the money order by the respondent which was refused. It is further alleged that the respondent no. 2 has already been depositing the rent U/s 27 of DRC Act and the petitioner has not filed any objections against the same, due to its amounts to admission on the part of the petitioner with regard to the tenancy of the respondent no. 2. It is further alleged that the petitioner has falsely alleged that tenanted premises was let out to the respondent no. 1 whereas it was let out to the respondent no. 2 and the respondent no. 1 has nothing to do with the tenanted premises and this petition is liable to be dismissed. It is further alleged that the petitioner has not filed any document to prove the tenancy with the respondent no. 1 and even no document has been filed on record to prove that any damage has been caused to the suit property. It is further alleged that the respondent no. 2 is the tenant in the tenanted premises and this petition is liable to be dismissed. It is further alleged that the petitioner has concocted a false story otherwise petitioner is accepting rent from the respondent no. 2 and even respondent no. 2 has filed a petition U/s 45 of DRC Act which is still pending. It is further alleged that the respondent is doing work of Video Center and the premises was let out at that time when no person was residing in the E-74/11 Raj Kumar Vs. Vijay 3/11 locality, but now the petitioner has become greedy and wants to dispossess the respondent. It is further alleged that the rate of rent is Rs. 625/- per month which has been paid upto date. It is further alleged that the shop was rented out to the respondent no. 2 in the month of January 1983 by the father of the petitioner and elder brother Sh. Ashok was receiving the rent of the tenanted premises, but later on he left the premises. It is further alleged that the brother of the petitioner is also co- owner of the suit property. It is denied by the respondents that the respondents are in arrears of rent from October 2001 upto August 2004. It is further alleged that the respondent has paid rent since 10/12/1998 upto 10/12/2002 personally and even money order was sent for the period w.e.f. 01/01/2003 to 31/08/2003, but it was refused and even rent for the month of September 2003 was also refused. The respondents have denied all the allegations of the petitioners and have prayed that this petition is liable to be dismissed.
3. The petitioner has filed replication to the Written Statement of the respondents and has reaffirmed his pleadings.
4. As per order dated 27/07/2010, an order U/s 15(1) of DRC Act was passed and it was directed by the Court to the respondents being LR's of the respondent no. 1, to deposit the arrears of rent w.e.f. 27/07/2004 to April 2007 and the balance rate of rent @ Rs. 62.50/- and further to deposit the rent w.e.f. May 2007 till date @ Rs. 687.50/- per month as well as future rent by 15th of each succeeding English calender month @ Rs. 687.50/- per month.
5. To prove the case, the petitioner has examined himself as PW1 and PW2 Sh. Manohar Lal and close PE. During the pendency of the petition, respondent no. 1 was expired and all the LR's of respondent no. 1 were substituted by the Court vide order dated 19/01/2010. The respondents have examined RW1 and RW2 and E-74/11 Raj Kumar Vs. Vijay 4/11 closed RE.
6. I have heard the arguments and perused the record. Present rent petition has been filed by the petitioner U/s 14 (1) (a) (b) & (j) of DRC Act. To decide this rent petition the relationship of land lord and tenant between the parties is a material fact. As per the allegations of the petitioner, the tenanted premises was let out to the respondent no. 1 and the respondent no. 1 has sub-let the same to the respondent no. 2 and now the respondent no. 2 is in possession of the tenanted premises. It is further alleged that the respondent no. 2 has caused damage to the tenanted premises, whereas the respondents have taken the defence that the respondent no. 1 have no concerned with the tenanted premises and the respondent no. 2 was / is sole tenant in the tenanted premises. It is further alleged by the respondent no. 1 that the father of the petitioner let out the premises to him. To decide this dispute, the evidence of the parties is relevant. PW1 has deposed that three shops shown in the site plan Exh. PW1 were constructed in the year 1979, but he does not know to whom the shop shown at the point A in the site plan was initially let out. It is further deposed that the shop shown in Exh. PW1/1 was let out to the respondent's father in the year 1979, but no rent agreement was executed. It is further deposed that the rent was being paid by respondent in cash. It is further deposed that he was present at the time creation of tenancy in favour of respondent no. 1 and was aged around 12-13 years old. It is further deposed that even no rent receipt was ever issued to the respondent no. 1 either by his father or by him. It is denied that he used to enter the payment of the rent made by the respondent in his diary. It is also denied that the respondent has paid the rent w.e.f. 10/12/1998 to 10/12/2002 or entries have been made regarding it the case diary. It is further deposed that he came to know in the year 2002 that the respondent no. 2 is in possession of the shop in question and he is running an electronics shop in the tenanted premises. It is further deposed that he issued a legal notice to the E-74/11 Raj Kumar Vs. Vijay 5/11 respondent no. 1 prior to filing of the present eviction petition and even has not withdrawn the rent deposited by the respondent no. 2 U/s 27 of DRC Act. It is further denied that the shop was let out to the respondent no. 2 in the year 1983. PW-2 has deposed that the property does not fall under the slum notified area.
7. RW1 has deposed that he is a graduate and his date of birth is 16/08/1968. It is admitted that in the year 1979 he was a minor. It is denied that the tenanted premises was let out to his father by the father of the petitioner. It is further deposed that he does not know as to whether the tenanted premises fall into the share of petitioner after the oral settlement after the death of father of the petitioner. It is further denied that he is an unauthorized occupant in the tenanted premises. It is admitted that he has filed a petition U/s 45 of DRC Act thereby showing himself to be a tenant in the tenanted premises. It is further deposed that he does not remember as to whether any reply to the notice Exh. PW1/9 was received by his counsel. It is denied that he received the reply to the legal notice Exh. PW1/10. It is further deposed that there was no property in his name prior 1983 and he does not remember the exact date when his father had gone Abroad. After seeing the passport, he replied that his father gone Abroad on 07/06/1981. It is denied that he has not paid rent since May 2004. It is further deposed that he used to maintain a diary of payment of rent and petitioner used to sign it and the same is Exh. RW1/P1.
8. After going through the testimonies of witnesses of both the parties, it is clear that the main defence of the respondent no. 2 is that the tenanted premises was let out to him personally by the father of the petitioner in the month of January 1983. It is admitted fact of the respondent no. 2 that he born out on 16/08/1968 and till the year 1983 he was minor and aged about 15 years. It is not a disputed preposition of law that the tenancy is a contract in terms of Indian Contract Act. To enter into the contract, both the parties are required to be competent to enter into contract as per E-74/11 Raj Kumar Vs. Vijay 6/11 the Indian Contract Act, 1872. As per section 10 of Indian Contract Act, the parties should be competent and competency includes the majority of the parties. In fact, the respondent no. 2 was minor on the date of lease on which basis the tenanted premises was let out and the contract of tenancy was out of question. Even if it is assumed for the shake of arguments that the respondent no. 2 entered into the agreement of rent then it is a void contract in terms of the provisions of Indian Contract Act. As such, the respondent no. 2 was not complete to enter into the tenancy contract. As such , the respondent no. 2 cannot a tenant of the petitioner.
9. Further, as per the record, the father of the respondent no. 2 i.e. respondent no. 1 has not contested this petition till his death and did not put any specific objections to the case of the petitioner. The petitioner has led an oral testimony on record that the premises was let out to the respondent no. 1 in the year 1979 and the respondent no. 2 has failed to prove his competency with regard to the tenancy. In fact, it stands proved that the premises was let out to the father of the respondent no. 2 and he was the tenant in the tenanted premises. Admittedly, the father of the petitioner was the landlord and after his demise, as per oral settlement the tenanted premises has came into the possession of the petitioner and the respondent being tenant cannot object to any settlement amongst the owners. As such, the petitioner and respondent no. 1 were the landlord and tenant with regard to the tenanted premises as shown in site plan Exh. PW1/1.
10. So far the rate of rent is concerned, It is admitted case of the respondent that the rate of rent of the tenanted premises was Rs. 625/- per month and it is also admitted fact that the legal notice Exh. PW1/10 was duly served upon the respondent and even duly replied by the respondents through their advocates vide Exh. PW1/10. By way of legal notice Exh. PW1/10, the rent was enhanced to Rs. 687.50/- per month w.e.f January 2004. It has been held by the Hon'ble High Court of Delhi in E-74/11 Raj Kumar Vs. Vijay 7/11 West Coast Paper Mills Ltd. Vs. Asha Kapoor, 2007 (97) DRJ 548 that service of legal notice is sufficient to increase 10% rent. As such, rate of rent between the parties stands proved.
11. So far the service of legal notice is concerned it has been duly admitted by respondent that the legal notice was duly replied vide replied vide Exh. PW1/9. Compliance of legal notice was to be proved by the respondent no. 1, but admittedly, no rent has been deposited by the respondent in compliance of the legal notice and whatever rent has been deposited by respondent no. 2 was of no use as he was not having any relationship of landlord and tenant with the petitioner. As such, the respondent no. 1 has failed to comply with the legal notice. In fact the petitioner has proved the default U/s 14(1)(a) of DRC Act.
U/S 14 (1) (b) of DRC Act
12. The petitioner has sought another relief U/s 14(1)(a) of DRC Act. I have given my observations herein above that the premises was let out to the respondent no. 1 by the petitioner and now the respondent no. 2 is in exclusive possession of the tenanted premises and even claiming himself to be an independent tenant which suggests that the possession of the respondent no. 2 in the tenanted premises is exclusive and without the dependency of respondent no. 1. Though the respondent no. 1 has expired, yet the sub-tenancy is to be seen on the date of filing of the petition. To ascertain the sub-tenancy, the possession should be physical as well as legal with the sub-tenant and the same stands proved in the present case. The respondent no. 2 has filed an eviction petition U/s 45 of DRC Act thereby claiming himself to be an independent tenant and this admitted fact itself suggests that the respondent no. 2 is in exclusive possession of the tenanted premises as the sub- tenant. Further, it is admitted fact that the father of the respondent no. 2 had gone Abroad in the year 1981 and he might have surrendered the tenanted premises in E-74/11 Raj Kumar Vs. Vijay 8/11 favour of the respondent no. 2 and the petitioner must not be aware about this fact and came to know only after filing the petition by the respondent no. 2 U/s 45 of DRC Act and this fact has been proved in petition on record. It has been held by the Hon'ble Supreme Court of India in Bharat Sales Ltd. V. Life Insurance Corporation of India, AIR 1998 SC 1240 that a sub-tenancy is to be taken place between the parties behind in the back of the landlord, due to direct evidence of sub-tenancy is not available and the Court has to assume from the circumstances. It is further held in this judgment that to establish subletting, delivering of exclusive possession is necessary and proof of payment of consideration for subletting is not necessary. In view of this judgment, it is clear that exclusive possession is a necessity of subletting. In the present case, it stands proved that the respondent no. 1 has sublet the tenanted premises to the respondent no. 2 and the respondent no. 2 is a sub- tenant without written consent of the petitioner.
13. During the course of arguments, Ld. Counsel for respondent no. 2 has argued that now the respondent no. 1 has expired and the respondent no. 2 has became the co-tenant / statutory tenant alongwtih the LRs of the respondent no. 1 and now the relief U/s 14(1)(b) of DRC Act has became infractious. The arguments of Ld. Counsel for the respondent has no force as his sub-tenancy is to be seen on the date of filing of the petition and not thereafter. Since the respondent no. 1 had already surrendered the possession of the tenanted premises in favour of the respondent no. 2 and had left no right in the tenanted premises, due to his LRs have also no right in the premises and cannot be statutory tenant. As such, surrender of the tenanted premises without written consent of the petitioner in compliance of Section 16 and 17 of DRC Act, was not legalized and the LRs of the respondent no. 1 have no right in the tenanted premises and the petitioner has proved his case. Petitioner has proved that tenanted premises has been sub-let by respondent no. 1 in favour of the respondent no. 2 and the petitioner is entitled for eviction order U/s 14(1)(b) of DRC E-74/11 Raj Kumar Vs. Vijay 9/11 Act.
U/S 14 (1) (j) of DRC Act
14. So far the case U/s 14(1)(j) of DRC Act is concerned, the petitioner has led just oral evidence without supporting any documents or photographs of the premises to prove that the respondents have caused any damage to the tenanted premises. To prove this relief, it was required to the petitioner to prove the substantial damage of the tenanted premises, but as per allegations as wall as evidence of the petitioner, the respondents have damaged the tenanted premises by plastering it, but it has not been explained in what manner substantial damage has been caused to the tenanted premises. Merely plastering a wall does not amounts to substantial damage to the property. As such, the petitioner has failed to prove this relief.
15. Keeping in view the facts and circumstances of the case, I am of the considered opinion that the petitioner has proved this petition U/s 14(1)(a) & (b) of DRC Act, but failed to prove this petition U/s 14(1)(j) of DRC Act, hence this petition is hereby dismissed qua U/s 14(1)(j) of DRC Act. An eviction order is passed under Section 14 (1) (b) of DRC Act with regard to the tenanted shop in premises No. B-347, Raghbir Nagar, Delhi shown in site plan Exh. PW1/1 in favour of the petitioner and against the respondent.
16. So far the relief U/s 14(1)(a) of DRC Act, perusal of the record shows that the Court has passed an order U/s 15(1) of DRC Act thereby directing the respondent to pay the arrears of rent w.e.f. 27/07/2004 to April 2007 and w.e.f. May 2007 to till date. However, the Court considered the rent deposited U/s 27 of DRC Act by the respondent no. 2, but it was not to be considered as he had seen depositing rent being a sub-tenant. It has been proved on record that the respondent no. 1 was in arrears of rent w.e.f. October 2001, but petitioner is entitled for only legally recoverable rent i.e. for three years prior to the filing of this petition. Order E-74/11 Raj Kumar Vs. Vijay 10/11 dated 27.7.2010 is hereby modified. This petition was filed on 19/08/2004. The LR's of respondent no. 1 are hereby directed to deposit the rent w.e.f 01/08/2001 to 27/07/2004 @ Rs. 625/- per month and w.e.f. 27/07/2004 to up to date @ Rs. 687.50/- per month within the period of one month and continue to pay rent till decision of benefit U/s 14(2) of DRC Act.
17. Put up for arguments on the benefit under Section 14 (2) of DRC Act on 31/10/2012. Naib Nazir is directed to file his report regarding the compliance of order U/s 15(1) of DRC Act.
Dated:-20/09/2012 (Devender Kumar)
Announced in the open Court. CCJ-cum-ARC (West)
Room No. 139, Tis Hazari Courts
Delhi.
E-74/11 Raj Kumar Vs. Vijay 11/11