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Delhi District Court

Sh. Tajuddin vs Mohd. Jamal on 24 December, 2018

       BEFORE THE DISTRICT& SESSIONS JUDGE (HQs.)
               RENT CONTROL TRIBUNAL
               TIS HAZARI COURTS, DELHI

                    CNR No. DLCT01­003499­2017


RCT Appeal No. 23/2017

1.   Sh. Tajuddin
2.   Mohd.Tahir
3.   Mohd. Tehsin
4.   Mohd. Tannu
5.   Mohd. Tariq

All sons of late Sh. Mirajuddin

6. Amiquiddin
7. Shafiquiddin
8. Zamiruddin

All sons of late Sh. Shahbuddin
All R/o 2937, Kala Masjid
Turkman Gate, Delhi­110006.                             ....    Appellants


                                  Versus

1. Mohd. Jamal
2. Mohd. Israr
3. Mohd. Ashfaq

All sons of sh. Mohd Islam
All R/o H.No. 3008, Gali Bashiruddin



RCT No. 23/17           Tajuddin & ors. vs. Mohd Jamal & Ors.       Page 1 of 12
 Kala Masjid, Turkman Gate,
Delhi­110006.                                            ....    Respondents

Date of filing of Appeal                 :       06.03.2017
Date of reserving Order                  :       10.12.2018
Date of Order                            :       24.12.2018


                 ORDER ON APPEAL UNDER SECTION
                38 OF DELHI RENT CONTROL ACT,1958

The appellants have filed the present appeal against impugned judgment dated 25.01.2017 whereby Ld. ARC, Central allowed eviction petition filed by the landlords/respondents herein under Section 14(1)(a) of the Delhi Rent Control Act, 1958 (DRC Act), whereas eviction petition under Section 14(1)(b) of the DRC Act was allowed.

2. Notice of the appeal was sent to the respondents. TCR was requisitioned.

3. I have heard Ld. Counsel for the parties and perused the record of the case as well as written submissions.

4. It has been submitted by Ld. Counsel for the appellants that legal demand notice dated 09.05.2002 had exhausted as it was used in earlier petition and said notice could not be used in the present petition; rent receipts Ex.RW1/1 and RW1/2 were not considered by RCT No. 23/17 Tajuddin & ors. vs. Mohd Jamal & Ors. Page 2 of 12 Ld. ARC; Ld. ARC erred in not considering order passed under Section 15(1) of the DRC Act; no letter of attornment was given to the tenants by the previous owners in favour of present landlords; if one petition was filed and withdrawn based upon a legal notice, then second petition cannot be filed based upon the same notice; an eviction petition is to be filed within 3 years from the date of notice; permission of Slum Authority was granted against Taslima Begum, who died and case was filed against her legal heirs, thus the requirement of permission from Slum Authority was not fulfilled; moreover only Tajuddin and 7 others were made party before the Slum Authority in another petition but R­9 to 11 were not parties before the Slum Authority; even when case was filed, only 8 respondents were there (along with Taslima Begum); R­9 to R­11 were made parties after they moved application for impleadment; there is no slum permission against R­9 to R­11, who are in possession, hence petition ought to have been dismissed.

5. On the other hand, Ld. Counsel for the landlords/respondents has submitted that R­1 to R­8 (along with Taslima Begum) were tenants and R­9 to R­11 were sub­tenants, so no slum permission was required in respect of R­9 to R­11; there is no necessity of sending notice of attornment; petition can be filed even after 3 years from the date of legal notice and no limitation is prescribed for filing eviction petition; even reply to the legal notice was RCT No. 23/17 Tajuddin & ors. vs. Mohd Jamal & Ors. Page 3 of 12 sent by the tenants after 2 months; statutory interest was not tendered and notice does not get exhausted even if a petition is filed and withdrawn based upon such notice due to technical reasons.

6. In this case, an eviction petition u/s 14 (1) (a) & (b) of the DRC Act was filed by the landlords Mohd. Jammal & Ors. against tenants Smt. Taslima Begum & Ors. stating therein that the petitioners purchased the suit property by way of registered sale deed dated 26.12.2001 and out of the property so purchased, one shop bearing No. 1802, Phatak Tliyan Turkman Gate, Delhi was let out to Mirazuddin by the previous owner. Mirazuddin expired and his legal heirs (initial respondent nos. 1 to 9, now respondent nos. 1 to 8) inherited the tenancy rights but they failed to pay/tender rent to the petitioners regularly. Tenants were in arrears of rent w.e.f. 01.01.02 which they failed to clear despite service of legal notice of demand dated 09.05.2002. The legal heirs of the original tenants sent reply dated 27.07.2002 alongwith a pay order for a sum of Rs. 160/­. But this payment of rent was not valid payment as the respondent failed to pay entire arrears of rent. Despite not making payment of entire arrears of rent, the tenants also sub­let and parted with the possession of the tenanted premises to Sh. Amiquddin, Shafiquddin and Zamiruddin, all sons of late Sh. Shahbuddin. Sub­tenants are running business of selling meat in one portion of the tenanted premises and from the another portion, they are running business of manufacturing motor RCT No. 23/17 Tajuddin & ors. vs. Mohd Jamal & Ors. Page 4 of 12 parts and pumps.

7. In the written statement filed on behalf of the tenants, it was stated that the petition was not maintainable as respondent nos. 10 to 12 are the tenants being the sons of original tenant Sh. Shahbuddin and they were intentionally not impleaded by landlords and after his death of Sh. Shahbuddin, they also inherited the tenancy rights; no legal notice was served; there were no arrears of rent and the rent stood paid upto 31.03.2010 but no rent receipts were issued. Respondent nos. 1 to 9 are in possession of the premises in question and they have not sublet the same to anybody.

8. PW­1 Mohd. Jammal in his cross examination admitted that respondent no. 1 had sent him a reply to the notice alongwith Pay Order of Rs. 160/­ which he did not encash. He also admitted that he had taken slum permission against respondent no. 1 and respondent no. 2 to 8 vide separate petitions.

9. RW­1 Tajuddin in his cross examination stated that he is not aware if the petitioners are the owners/ landlord of the suit property. He also admitted that nobody has claimed/demanded rent from the respondents qua the suit premises except the petitioners. In reply to a specific question as to whether the suit premises was let out to Sh. Mirazuddin, RW­1 stated that it was let out to father and grand father of Sh. Mirazuddin. He also admitted that after death of father of Sh. Mirazuddin namely Shahbuddin, only Mirazuddin was carrying on RCT No. 23/17 Tajuddin & ors. vs. Mohd Jamal & Ors. Page 5 of 12 business from the suit premises. He also admitted that respondents are legal heirs of Mirazuddin. In response to a specific question whether legal heirs of Sh. Mirazuddin are in arrears of rent w.e.f. 01.01.2002 @ Rs. 40/­ per month, he stated that they had been depositing rent in the Court. But surprisingly, RW­1 stated that he had no knowledge as to in which Court; for which period and what was the quantum of rent deposited by them. In response to a question whether after receipt of notice dated 09.05.2002 Ex. PW 1/4 any rent was paid by him or his mother Smt. Taslima Begum, RW­1 said yes, they paid the rent. But he could not tell the amount of rent paid in compliance of the said notice and stated that only his counsel could tell the same. He even did not have knowledge if Smt. Taslima Begum sent only Rs. 160/­ in compliance of the notice Ex. PW1/4. He did not know if Taslima Begum neither tendered nor paid rent as demanded in the legal notice Ex. PW 1/4 within statutory period of 2 months of receipt of the legal notice.

10. RW­2 Mohd. Tehsin in his cross examination stated that no rent had been paid by them to the petitioner qua the suit premises but he volunteered that rent was paid only to the previous owners. He further stated that after purchase of the suit property by the petitioners, they did not pay any rent to the petitioners. But he volunteered that they deposited the same in the court. No particulars of any such deposits are in his knowledge.

11. It is proved on record that petitioners are owner of the suit property by way of registered sale deed dated 26.12.2001, thus, it was rightly held by Ld. ARC that the petitioners are owners and there existed relationship of the landlord and tenant between the parties. With regard to arrears of rent, it is case of the tenants that the rent stood paid upto 31.03.2010 but the landlord did not issue any rent receipt. The affidavits of Tajuddin, Mohd Tehsin and Amiquddin ( RW­1 to RW­3) are silent as to when, how much and to whom the rent was paid/tendered by the respondents/tenants. Though, RW­1 in his cross examination stated that after receipt of notice Ex.PW 1/4 they paid rent, but he could not tell the amount of rent paid in compliance of the said notice and the period for which rent was tendered.

12. RW­2 Mohd. Tehsin in his cross examination categorically admitted that no rent was paid by them to the petitioners qua the suit premises and that same was paid only to the previous owners. RW­2 further stated that after purchase of the suit property by the petitioners, they did not pay any rent to them.

13. Though, it is the case of the respondents/tenants that arrears of rent upto 31.03.2010 stood paid, but they did not produce any document/record to show the payment of aforesaid arrears of rent. Thus, it was rightly observed by Ld. ARC that tenants were in arrears of rent and were liable to pay the same for 3 years preceding to filing of the petition @ Rs. 40/­ per month.

14. As regard the service of the legal notice dated 09.05.2002 Ex.PW1/4 sent by the landlords is concerned, the tenants have denied the same but the registered A/D card slip Ex.PW1/5 and A/D Card Ex.PW1/6 are on record. Even, RW­1 Tazuddin in his cross examination stated that they had paid rent to the petitioner after receipt of the notice dated 09.05.2002 Ex.PW 1/4. Thus, it clearly stood proved on record that legal notice was duly served upon the tenants. In view of testimony of RW­1 & RW­2, it clearly stands proved on record that no rent was paid. Respondents failed to substantiate their claim that they had paid rent upto 31.03.2010. Since, the arrears of rent were not paid within two months of service of legal demand notice, so the eviction petition u/s 14 (1) (a) was rightly allowed.

15. With regard to the ground of sub­letting, there was no denial in the replication that respondent nos. 10 to 12 were the tenants being sons of original tenant Shahbuddin and that they had also inherited the tenancy rights. Evidence of the petitioner is silent on this account. Thus, the respondent nos. 10 to 12 being the sons of original tenant Sh. Shahbuddin also inherited the tenancy rights and they cannot be said to be sub­tenants. The eviction petition u/s 14 (1) (b) was rightly dismissed.

16. Ld. Counsel for the appellants has placed reliance on the following judgments:

(i) In Hindustan Everest Tools Ltd. Vs. Shakti Kumar RCT No. 23/17 Tajuddin & ors. vs. Mohd Jamal & Ors. Page 8 of 12 1986(1) AIR CJ 2016 wherein it has been held that in the demand notice there must be demand of arrears of rent and mere statement of arrears without anything more is not sufficient. Here in this case, there is specific demand of arrears of rent from 01.01.2002 to 30.04.2002 at the rate of Rs.40/­ per month, so this judgment is not applicable to the present case.

(ii)            In Dr. (Mrs.) N.D.Khanna               Vs. M/s Hindustan
Industrial Corporation New Delhi           wherein it has been held that

wherein an eviction petition u/s 14 (1) (e) of the DRC Act, one of the ingredients was not pleaded in the eviction petition, it amounts to non disclosure of cause of action and petition is liable to be rejected. All necessary ingredients have been pleaded in this case, so ratio of this judgment is not applicable to the case in hand.

(iii) In Shri Hari Shankar Saxena Vs. Shrimati Sarla Devi & Others 1970 RCR 36 it was held that when the tenant applies for fixation of standard rent, landlord is competent to recover contractual rent till standard rent is determined, limitation begins when contractual rent become due and not from the date when standard rent fixed. It is true that the rent beyond the limitation period of 3 years cannot be recovered but the cause of action arose due to non­payment of arrears of rent despite service of demand notice shall be the cause of action for filing of eviction petition, even if the notice and period of arrears of rent is beyond 3 years as the Limitation Act is not applicable RCT No. 23/17 Tajuddin & ors. vs. Mohd Jamal & Ors. Page 9 of 12 to the petitions under DRC Act.

(iv) In Dhanander Kumar Jain Vs. M.C.D. 2017 VIII AD (DELHI) 673 it has been held that no order for the recovery of possession of any premises shall be made on the ground specified in Section14 (1) (a) if the tenant makes payment or deposits as required by Section 15. This provision will be applicable while considering grant of benefit under Section 14(2) of the DRC Act.

17. Ld counsel for the respondents has placed reliance on the following judgments:

(i) Devender Singh vs. MCD 1996 RLR 101 wherein it has been held that if the legal demand notice is not complied with within statutory period of 2 months, then landlord may file eviction petition even after 3 years as Limitation Act is not applicable to Rent Control proceedings.

(ii) Silva Uddin vs. Nagaraju 2005(1) RCR 173 wherein it has been held that in case of transfer of ownership of premises to respondent from previous lessor; respondent becomes entitled to receive rent in terms of lease by operation of Section 109 of the Transfer of Property Act; attornment by tenant is not necessary to confer validity to transfer of lessor's rights and tenant cannot dispute right of transferee landlord to maintain petition or to claim rent.

(iii) S.A. Wali Quadri vs. Sadar Anjuman­e­Islamia 2000(2) RCR 84 wherein it has been held that on death of tenant, heirs RCT No. 23/17 Tajuddin & ors. vs. Mohd Jamal & Ors. Page 10 of 12 of deceased tenant will succeed as joint tenants and even if parties are professing Muslim religion, then Mohammedan law will not apply.

(iv) Raghbir Singh vs. Sheela Wanti & Anr. 2009 (109) DRJ 19 wherein it has been held that rent is to be paid month by month and where any default occurs for payment of rent, the tenant has to pay simple interest @ 15% per annum from the date on which such payment of rent became due till the date when it is paid. It has been further held that where the tenant had not been tendering rent month by month, the tenant had to tender rent along with accrued interest of 15% per annum to the landlord.

(v) H.C. Pandey vs. G. C. Paul AIR 1989 SC 1470 wherein it has been held that on death of original tenant, heirs of original tennt succeed to tenancy as joint tenants and not as tenants in common and service of notice under S. 106 of the Transfer of Property Act on one of joint tenants who acted on behalf of others was sufficient.

(vi) Rajender Kumar Sharma & Ors. vs. Leela Wati & Ors. 155 (2008) DLT 383 wherein it has been held that on death of original tenant, legal heirs inherit tenancy as joint tenants and occupation of one of the tenants is occupation of all the joint tenants and it is not necessary for the landlord to implead all the legal heirs of deceased tenant.

18. There is no dispute as to ratios laid down in the RCT No. 23/17 Tajuddin & ors. vs. Mohd Jamal & Ors. Page 11 of 12 aforesaid judgments. Ratios of the judgments relied upon by Ld. Counsel for the respondents are fully applicable to the facts of the present case as it has been proved on record that the tenants were in arrears of rent which they failed to clear despite service of legal notice on one of them. Hence, there is no illegality or impropriety in the impugned judgment.

19. In view of above discussion, I hold that there is no merit in the appeal. Same is accordingly dismissed. TCR be sent back along with copy of the order.

Appeal file be consigned to record room.

                                             TALWANT            SINGH
                                             SINGH              Date: 2018.12.31
                                                                13:38:47 +0530


Announced in the open Court               (TALWANT SINGH)
Dated: 24th December, 2018            District & Sessions Judge (HQs)
                                         Rent Control Tribunal
                                        Tis Hazari Courts : Delhi




RCT No. 23/17           Tajuddin & ors. vs. Mohd Jamal & Ors.          Page 12 of 12