Delhi District Court
Kanwar Inderjit Singh vs Sh. Raghubir Singh on 24 April, 2018
IN THE COURT OF SH. NAVJEETBUDHIRAJA,ACJ/CCJ/ARC(WEST)
TIS HAZARI COURTS, DELHI
No. 25656/16
Date of Institution: 31.01.2006
Date of Decision:24.04.2018
Kanwar Inderjit Singh
S/o Sh. Sampuran Singh,
R/o Z-40, West Patel Nagar,
New Delhi-110008 ....Petitioner
Versus
1. Sh. Raghubir Singh
S/o Sh. Gurbaksh Singh,
Z-39, West Patel Nagar,
New Delhi-110008
Also at D-1, West End Colony,
Nanak Pura, New Delhi
2. Sh. Jatinder Singh,
S/o Sh. Joginder Singh
R/o Z-39, West Patel Nagar, New Delhi-110008
Also at N-63, Kirti Nagar, New Delhi ...Respondents
JUDGMENT
1. The judgment is in respect of petition under section 14 (1) (a) (b) (j) (k) of Delhi Rent Control Act, 1958 (DRC Act) filed on behalf of the petitioner Sh. Kanwar Inderjit Singh against respondents Sh. Raghubir Singh and Sh. Jatinder No.25656 /16 Page no.
Singh in respect of Property bearing no. Z-39, West Patel Nagar, New Delhi- 110008 (hereinafter referred to as "tenanted property").
2. The epitome and long and short of the case of the petitioner is as follows:
"That the petitioner is the owner of the tenanted property which was rented out to respondent no.1 at monthly rent of Rs.127/- per month upto 30.04.2002 exclusive of electricity charges which was enhanced to Rs. 2000/- per month w.e.f 01.06.2002. The tenanted property consists of one room measuring about 6'6'' X 10 as shown in red color in the site plan. The respondent no.1 has been irregular in payment of rent and has not paid the arrears of rent from 01.10.1999 to 30.04.2002 despite service of legal notice dated 01.04.2002. It is further submitted that respondent no.1 on his own enhanced the rent by 10% to Rs. 139.70/- per month w.e.f 01.05.2002. Respondent no.1 defaulted in payment of rent w.e.f 01.10.2002. Consequently, legal demand notice dated 07.02.2005 was duly served upon him for the period 01.10.2002 to 28.02.2005 with interest @ 15 % per annum. Respondent no.1 sent the cheque for the said period @ Rs. 139.70/- per month which was refused since it was not the complete tender. Further, respondent no.1 has sub-let, assign or parted with the possession of the tenanted property to respondent no.2 without obtaining the consent in writing from the landlord/petitioner. Respondent no.1 has also cause substantial damage to the tenanted property. He has also been using the property contrary to the terms and conditions imposed upon the petitioner by L & DO. Hence, the present petition.
3. Written statement was filed on behalf of the respondent no.1 mainly repudiating the contents of the petition and specifically controverting the petition on the ground that petitioner is not the owner of the tenanted premises as the premises was in the name of Smt. Prakash Kaur. Petitioner has not filed any No.25656 /16 Page no.
document of ownership in respect of the tenanted property. Respondent has regularly paid the rent to the petitioner but this petition has been filed with ulterior motive. The rent of the tenanted premises was Rs.127/- per month which was increased by 10% w.e.f 01.05.2002 after receipt of notice of the petitioner. The respondent sent the rent for the period 01.10.2002 to 28.02.2005 @ Rs. 139.70/- per month, totalling to Rs. 4051.30/-vide cheque bearing no. 318539 drawn on Bank of Punjab dated 11.05.2005. But the petitioner did not accept the same and instead filed this false petition. Respondent no.1 has not sub-let, assigned or partied with the possession of the tenanted property to respondent no.2. Respondent no.1 is in exclusive occupation of the tenanted premises. Neither any structural changes, additions or alterations have been made. The tenanted property was let out for commercial purposes and no activities have been carried out in contravention of the terms of the lease of Land and Development Authority. Petitioner has no cause of action for filing the present petition.
4. Respondent no.2 also filed written statement refuting the claim of the petitioner by stating that he has no concern with the tenanted property and he was never in possession of the same.
5. Replication was filed on behalf of the petitioner remonstrating the contents of the written statement and reinforcing the contents of the petition.
6. In petitioner's evidence, petitioner got examined himself as PW-1 vide his affidavit Ex. PW-1/1. He has also relied upon documents which are Ex. PW-1/A to Ex. PW-1/J i.e. Site plan as shown in Red Color is Ex. PW-1/A, Copy of notice dated 01.04.2002 is Ex. PW-1/B, Reply dated 16.05.2002 is Ex. PW-1/C, legal notice dated 02.09.2002 is Ex. PW-1/D, reply dated 18.09.2002 is Ex. PW- 1/E, legal notice dated 07.02.2005 is Ex. PW-1/F, reply dated 11.03.2005 is Ex.
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PW-1/G, letter dated 25.04.2005 is Ex. PW-1/H. Postal receipt is Ex. PW-1/I and AD Card is Ex. PW-1/J. He was cross-examined on behalf of the respondent. Petitioner also got examined Sh. Manish Sabharwal, UDC from L& DO Department as PW-2. He was also cross-examined on behalf of respondent no.1. PW-3 B. Shekhar was also examined who was the authorized representative of Citi Financial, Consumer Finance India Ltd., who filed statement of account and loan details of Jatinder Singh as Ex. PW-3/1. He was cross-examined on behalf of respondent. PW-4 Sh. Israr Babu, from Vodafone Mobile Services Ltd., was also examined on behalf of respondent. Petitioner's evidence stood closed vide order dated 27.07.2013.
7. Respondent got examined his attorney Sh. Narender Nath Dogra as RW-1 vide his affidavit Ex. RW-1/A. He was also cross-examined on behalf of the petitioner. Respondent's evidence was laid to rest on dated 17.11.2014.
8. After consummation of the evidence, final arguments were advanced on behalf of both the sides. Both the Ld. Counsels also filed written submissions.
9. Firstly, I shall advert to the provision under section 14 (1) (b) of DRC Act which has been invoked with the present petition.
"Clause (b) to the proviso to sub-section (1) of Section 14 uses three expressions, namely "sublet", "assigned" and "otherwise parted with possession"
of the whole or any part of the premises without obtaining the consent in writing of the landlord. These three expressions deal with different concepts and apply to different circumstances. If sub-letting there should exist the relationship of landlord and tenant as between the tenant and his sub-tenant and all the incidents of letting or tenancy have to be found, namely, the transfer of an interest in the estate, payment of rent and the right to possession against tenant in respect of the premises sub-let. In assignment, the tenant has to divest himself of all the rights No.25656 /16 Page no.
that he has as a tenant. The expression "parted with possession" undoubtedly, postulates the parting with legal possession. "Parting with possession" means giving possession to persons other than those to whom, possession has been given by the lease and "the parting with possession" must have been by the tenant".
10. Petitioner has claimed that respondent no.1 Sh Raghubir Singh has sub-let the tenanted property to respondent no.2 Sh. Jatinder Singh. Two essential conditions are required to be satisfied to prove sub-letting:
(i) That the alleged sub tenant is in exclusive possession.
(ii) That between the tenant and alleged sub tenant, there is a relationship of lessor and lessee.
11. Sub tenancy or sub letting comes into existence when the tenant gives up possession of tenanted premises wholly or in part, and puts another person in exclusive possession thereof.
12. In the instant case, PW-1 has testified in paragraph no.9 as under:
" That the respondent no.1 has sub let, assigned or parted with the possession of whole of the room to the respondent no.2 without obtaining consent in writing from me. The respondent no.2 is having a cell phone no. 919811012721 and has given his address to Sterline Cellular Ltd that of the premises in question i.e. Z-39, West Patel Nagar, New Delhi. Respondent no.2 is receiving the bills and letters from the aforesaid company in respect of the said cell phone at Z-39, West Patel Nagar, New Delhi. It is denied that the respondent no. 2 has no concern with the premises in question".
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13. Except for the above noted extract of evidence, petitioner has not placed on record any evidence or material to prove sub-letting, assigning or parting with the possession of the tenanted premises by respondent no.1. There is no evidence of any rent agreement between respondent no.2 and respondent no.1. There is also no evidence that any monetary consideration is being paid by respondent no.2 to respondent no.1.
14. In the cross-examination of PW-1, he admitted that respondent no.1 and respondent no.2 are related to each other and he also knew respondent no.2. PW- 1 was ignoramus as to whether grandfather of respondent no.2 was brother of respondent no.1. PW-1 also stated that the tenanted premises was sub-let to respondent no.2 for the last 15 years (from the date of his evidence on 14.12.2009).
15. Petitioner also got examined PW-3 to prove that respondent no.2 availed the loan from City Financial wherein he gave the address of the tenanted premises. Loan detail as well as the statement of account of respondent no.2 are Ex. PW-3/1. The statement of account clearly reflects one of the address of Sh. Jatinder Singh as Z-39, West Patel Nagar, Delhi- 110008. No suggestions were posed to PW-3 to counter the contents of these documents. Although, PW-3 admitted that Ex. PW-3/1 was neither signed by any officer of the bank nor attested but it was a computer generated copy. PW-4 Sh. Israr Babu from Vodafone Mobile Service Ltd., also produced the bill dated 17.12.1997 Ex. PW- 4/2 which bears the name of respondent no.2 Sh. Jatinder Singh.
16. However, in view of the fact that the said Sh. Jatinder Singh is admittedly the relative of respondent no.1, merely giving the address of the tenanted property in the Citi Financial for availing the loan and taking mobile number against the address of the tenanted property would not conclusively prove that No.25656 /16 Page no.
respondent no.1 has sub-let or parted with the possession of the tenanted premises in favour with respondent no.2. It has also been fessed up in the cross- examination of PW-1 that respondent no.2 has been known to him and has been in the tenanted premises for 15 years. It is inexplicable as to why the petitioner kept mum for so many years and not proceeded against both the respondent for sub letting as soon as he came to know of the same.
17. In the judgment Prem Prakash Vs. Santosh Kumar Jain Vs. Sons (HUF) and Anr.,2017 (2) RLR 561 (SC), para no. 14 to 17 are relevant which are as follows:
"14. Undoubtedly, the initial burden to prove that the sub-tenant is in exclusive possession of the property is on the owner, however, the onus to prove the exclusive possession of the sub-tenant is that of preponderance of probability only and he has to prove the same prima facie only and if he succeeds then the burden to rebut the same lies on the tenant.
"15. In this regard, it is appropriate to quote a decision of this court in Associated Hotels of India Ltd, Delhi Vs. S.B. Sardar Ranjit Singh, AIR 1968 SC 933 wherein it was held that when eviction is sought on the ground of sub-letting, the onus to prove sub-letting is on the landlord. If the landlord prima- facie shows that the occupant who was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.
"16. Again, in Kal and Anr. V. Madho Parshad Vaidya, (1998) 6 SCC 573: AIR 1998 SC 2773), this court reiterated the very same principle. It was observed that the burden of proof of sub-letting is on the landlord but once he establishes parting of possession by the tenant to third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus, it is No.25656 /16 Page no.
permissible for the court to raise an inference that such possession was for monetary consideration.
"17. In Vaishakhi Ram & Ors. Vs. Sanjeev Kumar Bhatiani, (2008) 14 SCC 356: (AIR 2008 SC 1585): [2008 (1) RLR (SC) 337: 2008 (2) ICC (SC) 748], it was held as under:
"21. It is well settled that the burden of proving sub-letting is on the landlord but if the landlord proves that the sub-tenant is in exclusive possession of the suit premises, then the onus is shifted to the tenant to prove that it was not a case of sub-letting, Reliance can be placed on the decision of this court in Joginder Singh Sodhi Vs. Amar Kaur. Therefore, we are in full agreement with the High Court as well as the courts below that since Appellants 2 to 4 had been in exclusive possession of the suit shop and appellant 1 could not prove that it was not a case of sub-letting, the suit shop had been sub-let by appellant in favour of appellants no. 2 to 4. Therefore, no interference can be made with the findings arrived at by the High Court as well as the courts below on the question of sub-letting".
18. As noted from the judgment hereinabove, it was incumbent upon the petitioner who have proved that respondent no.1 has given up exclusive control over the tenanted property to respondent no.2 which has not been proved by way of satisfactory and tenable evidence in this case. Therefore, it is held that petitioner has not been successful in proving his case against the respondent under section 14 (1) (b) of DRC Act.
19. Now embarking upon the case of the petitioner under section 14 (1) (j) of DRC Act.
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20. No hard and fast definition of "substantial damage" is possible. Each case depends upon its own facts. No exhaustive list of constructions that constitute damage can be given. The determination of that question depends on the facts of each case. Any alteration which diminishes the value may fall within the definition of "damage". Every material alteration may not necessarily amount to "damage". The word used is "damage" and not "material alteration".
21. Damage signifies an act which has the effect of diminishing or impairing the utility and value of something or endangering its safety or shortening the period of its utility and where damage is considerable and not of an minor or paltry nature, it would be considered to be substantial. In a case under section 14 (1) (J) of the Act, the landlord must establish by positive evidence that the alterations made by the tenant have materially impaired the utility or value of the demised premises.
22. In the judgment in Suraj Prakash Vs Baijnath Bhawani and others 103 (2003) Delhi (Supra), for a case to fall under Section 14 (1) (J) of the Act, the Supreme Court has laid down the following propositions.
(i) the onus of proving that the tenant has caused substantial damage to the demised premises is upon the landlord:
(ii) landlord must prove that addition and alteration in the tenancy premises is carried out by the tenant. :
(iii) tenant has made the construction without the consent of landlord :
(iv) the said construction has materially affected the tenancy premises and further that the construction which had been carried out by the tenant had materially altered the premises :
(v) Court must determine the nature, character of the construction and the extent to which they make changes in the structure of the premises having regard to the purpose for which the premises have been let out :
(vi) Landlord has to prove it by cogent evidence and wherever necessary expert witness should be examined :
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(vii) An eviction order under clause (J) could be passed if the tenant has carried out such additions or alterations and structural changes in the tenancy premises which had brought about material impairment in the value and utility of premises :
(viii) Every construction or alteration does not impair the value and utility of the building and that construction must be of material nature which should substantially diminish the value of the building either from commercial and monetary point of view or from utilization aspect of the building:
(ix) A temporary alteration or addition which can be easily repaired without causing damage to the structure is not substantial damage to the tenancy premises:
(x) Every change, addition or alteration in the tenancy premises will not invite eviction of the tenant under clause (J) and that each case would depend upon its own facts.
(xi) The impairment of the value and utility of the building is to be seen from the point of view of the landlord and not the tenant.
23. To establish the case against the respondent under section 14 (1) (J) of DRC Act, only evidence which has been led by petitioner in para no. 10 of his affidavit Ex.PW-1/A which is as under:
"That the respondent no.1 has caused substantial damage to the premises. The respondent has removed the wooden door and window and put shutter, broken the floor".
24. It is manifest from the above noted extract that petitioner has failed to provide the vivid description of tenanted property in order to prove that respondent no. 1 has caused substantial damage to it. The details regarding the exact position of the wooden door and window are conspicuous by its absence. There is no averment as to where the shutter has been installed. The evidentiary affidavit is also bereft of the details as to to what extent the floor of the tenanted premises has been broken. It is discernible that the evidence qua section 14 (1)
(j) of DRC Act has been very superficial and cryptic. Petitioner has not filed any photographs to fortify his case. Neither he has examined any expert witness to No.25656 /16 Page no.
bring home that the respondent no.1 has caused any substantial damage to the tenanted property.
25. Although, it has come in the cross-examination of RW-1 that the shutter was affixed on the tenanted premises. However, in view of the aforenoted deficiencies in the case of the petitioner viz-a-viz the case of substantial damage against the respondent no.1, petitioner cannot be said to have successful established that respondent no.1 has caused any substantial damage to the tenanted premises. Thus, petitioner qua the provision under section 14 (1) (j) of DRC Act stands not proved.
26. Now embarking upon the essential ingredients of provision of 14 (1) (k)of DRC Act.
(a) The user of the premises by the tenant should be contrary to a condition imposed on the landlord by the Government.
(b) Such user must continue even after a notice to discontinue the same is given by the landlord.
(c) The condition which is contravened by the user of the tenant should be one which is imposed on the landlord by the Government "while giving him a lease of the land on which premises are situate."
27. In order to build his case under this clause, petitioner has deposed that the tenanted premises is residential in nature but is being misused by running commercial activities contrary to the terms imposed by L& DO Department. In order to underpin his testimony, petitioner has also got examined Sh. Manish Sabharwal UDC from L&DO Department Nirman Bhawan as PW-3 who deposed that as per the lease deed dated 10.06.1959 the property Z-39/40, West No.25656 /16 Page no.
Patel Nagar, is residential. Respondents have not been able to place on record any material or evidence to counter this deposition.
28. However, it is worthwhile to note that it has been stated by the petitioner in para no. 8 of his evidentiary affidavit Ex. PW-1/1 that vide judgment dated 07.07.1981 of the then ARC Sh. D.S. Sidhu in case no. E-110/77 to E-112/77 titled as Kanwar Inderjeet Singh Vs. Raghubir Singh and Anr., it was held that the premises was being misused and respondents were directed to pay the mis-user charges beyond the period of 14.01.1980. The respondent no.1 paid the mis-user charges upto 14.01.1980 but has not stopped the mis-user.
29. True copy of the certified copy of the said order has been placed on record. Para no. 4 of the order is germane which is as follows:
"Respondent is directed to pay the misuser charges levied upto 14.01.1980 by the L &DO and if the same are paid by the landlord, respondent is directed to pay the same t the landlord within one month of this order and continue to pay the same to the L & DO beyond the period of 14.01.1980 as and when the misuser charges are demanded by L & DO. In case respondent fails to comply with this order, he would be liable to be evicted from the suit premises and order of eviction would be deemed to have been passed against him with respect to the suit premises shown red in the site plan Ex. AW-2/2 in suit no. 110/77 and situated at portion of Z-39, West Patel Nagar, New Delhi as shown in Red Color in the site plan Ex.AW-2/3 in suit no. 111/77 situated at portion of premises no. Z-39, West Patel Nagar, New Delhi and with respect to premises shown red color in the site plan Ex. AW2/4 in suit no. 112/77 and situated at portion of Z-39, West Patel Nagar, New Delhi. There is no order as to costs. File be consigned to record room. Attested copy of this order be placed in case no. 111/77 and case no. 112/77".
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30. It is limpid from the abovesaid order that respondent was directed to continue to pay the misuser charges beyond the period of 14.01.1980 as and when demanded by L & DO and in case of his failure, he was liable to be evicted from the premises. Thus, in view of the said order, there was no requirement of filing the fresh petition by the petitioner as in case of the failure of the respondent no. 1 to pay the misuser charges, he was to be evicted from the tenanted premises. Petitioner ought to have gone in execution of the said order and was not legally permissible to file the fresh petition on similar facts. Thus, case of the petitioner under section 14 (1)(k) of DRC Act also does not stand the scrutiny of this court.
31. Moving further, to prove the case under Section 14 (1) (a) of DRC Act, the petitioner is required to prove the following ingredients:-
(i) That there is relationship of landlord and tenant between the parties;
(ii) Rate of rent;
(iii) That there were arrears of legally recoverable rent at the time of issuance of legal demand notice;
(iv) That a valid legal demand notice was duly served upon the respondent; and
(v) That the respondent has neither paid nor tendered the entire arrears of legally recoverable rent within two months of date of receipt of legal demand notice.
All the ingredients are being discussed below:
(i) That there is relationship of landlord and tenant between the parties;
No.25656 /16 Page no. Petitioner has deposed in his affidavit Ex. PW-1/1 that respondent no. 1
was inducted as tenanted by his mother Smt. Parkash Kaur sometime in the year 1957 in one room on the ground floor. Petitioner herein is one of the LRs of Smt. Parkash Kaur. Respondent no.1 though in his written statement has expostulated the petitioner to be the owner of the tenanted premises, however he has admitted that he had been paying the rent to the petitioner as and when the notice was served upon him on behalf of the petitioner. Respondent no.1 has nowhere denied in specific terms that the petitioner is his landlord in respect of the tenanted premises. Although, the petitioner/PW-1 in his cross-examination has affirmed that property bearing no. Z-39, West Patel Nagar, has not been divided between the LRs of his mother Smt. Parkash Kaur but this would not preclude the petitioner from asserting his ownership and landlordship over the tenanted premises particularly when the respondent no.1 has been paying the rent to him as and when demanded. No suggestion has been given to the petitioner/PW-1 in his cross-examination on behalf of respondent no.1 to counter the factum of relationship of landlord and tenant between them. Thus, the relationship of landlord and tenant between petitioner and respondent no.1 stands duly established.
(ii) Rate of rent;
Petitioner has claimed the rate of rent to be Rs. 127/-per month upto the period 30.04.2002 exclusive of electricity charges which was enhanced to Rs. 2,000/- per month with effect from 01.06.2002 vide notice dated 01.04.2002. Respondent no. 1 on the other hand has oppugned the factum of increasing the rate of rent to Rs. 2,000/- per month and instead claimed the rent to be Rs. 139.70/- per month from the period 01.10.2002 till 28.02.2005. Petitioner/PW-1 admitted in his cross-examination that he did not file any petition for fixation of standard rent nor sought any declaration from the court regarding the rate of rent No.25656 /16 Page no.
to be Rs. 2,000/- per month. As per section 6(a)of DRC Act, landlord could have increased the rent by 10 % after every three years. No justification has been tendered by the petitioner for unilaterally increasing the rent to Rs. 2,000/- per month with effect from 01.06.2002 from Rs. 127/- per month. Admittedly, the rate upto 30.04.2002 was Rs. 127/- therefore, after the service of legal notice dated 01.04.2002 Ex. PW-1/B, respondent no.1 rightly increased the rent by 10% to Rs. 139.70/- per month with effect from 01.05.2002. The present petition pertains to default in payment of arrears of rent from 01.10.2002 to 28.02.2005 and during which period the rate of rent has been proved to be Rs.139.70/- per month.
Thus, rate of rent is proved to be Rs. 139.70/- per month.
(iii) That there were arrears of legally recoverable rent at the time of issuance of legal demand notice;
And
(v) That the respondent has neither paid nor tendered the entire arrears
of legally recoverable rent within two months of date of receipt of legal
demand notice.
Both these ingredients are discussed together as both are interlinked.
Regarding the proof of arrears of rent on behalf of respondent no.1, petitioner has testified in para no. 6 of his evidentiary affidavit which is Ex. PW-1/1.
"That the respondent no. 1 again fell in arrears of rent w.e.f 01.10.2002. Therefore, I sent any demand notice dated 07.02.2005 though my counsel demanding rent at the enhanced rate of Rs. 2000/- with interest for the period 01.10.2002 to 28.02.2005. Copy of the notice is Ex. PW-1/F. The respondent No.25656 /16 Page no.
no.1 sent a cheque for Rs. 4051.30/- alleging the same to be rent for the period 01.10.2002 to 28.02.2005 @ Rs. 139.70/-p.m alongwith his reply dated 11.03.2005. Original reply is Ex. PW-1/G. Rent was not for the complete rent due and also without interest. Therefore, the same was not acceptable to me. The aboveasid cheque was, therefore returned to the counsel for the respondent no.1 by my counsel alongwith his communicated dated 25.04.2005 per registered A.D Copy of the communication is Ex. PW-1/H. Original postal receipt is Ex. PW- 1/I. Original A.D. duly signed by the addressee is Ex. PW-1/J. The respondent no.1 again defaulted in payment of rent. The respondent is in arrears of rent w.e.f 01.10.2002 till date".
Respondent no.1 has claimed to have been regularly paying the rent to petitioner and it was the petitioner who was intentionally avoiding to accept the same. However, respondent no.1 has not placed on record any material or evidence in the form of any money order sent to the petitioner in case of his refusal to receive the rent, neither it is the case of the respondent no.1 in case of refusal of receive the rent, he approached the court by filing petition under section 27 of DRC Act. It is a settled law that when the petitioner alleges non payment of rent, the onus lies upon the tenant to prove that he has paid the rent. It has been held in 'Sukhanand v. Additional District Judge, Buland Shahar & Ors. (1994) RCR Rent 408, that the onus to show payment of rent lies on tenant and oral testimony of tenant in regard to the payment of rent claiming discharge of liability in this regard cannot be admitted to be worth reliance at all. Similar view has been reiterated in the case titled as 'Raghubir Prasad v. Rajinder Kumar Gurudev, 1993 (2) RCR Rent 234.
Thus, respondent no.1 has failed to substantiate his claim that he had been regular in paying the rent to the petitioner particularly for the period 01.10.2002 to 28.02.2005. The petitioner/PW-1 though claimed to have received the reply No.25656 /16 Page no.
Ex. PW-1/G alongwith cheque of Rs. 4051.30/- @ Rs. 139.70/- per month, but he refused to accept the same, since the same was not the complete rent due including the interest. Petitioner had categorically claimed the recovery of interest @ 15 % per annum as provided in Section 26 of DRC Act vide his notice dated 07.02.2005 Ex. PW-1/F. It is not the case of the respondent no.1 that he tendered the cheque of Rs. 4051.30/- including the interest @ 15 % per annum. Thus, the cheque of the said amount sent by respondent no.1 cannot be said to be complete tender of arrears of rent for the period 01.10.2002 to 28.02.2005. in the cross-examination of PW-1 also no suggestion was put to him that the rent was paid through the cheque including interest @ 15 % per annum. Therefore, respondent no.1 is held to be a defaulter in payment of arrears of rent from 01.10.2002 to 28.02.2005.
In the judgment titled as Amolak Ram Vs. Ram Prasad (since Decd. Thr. LRs), DOD 27.10.2010 para no.10 is relevant which is as follows:
"10. In the third judgment delivered in the case of Raghubir Singh Vs. Sheela Wanti & Anr.(Supra) which is again a judgment delivered in a case where the notice of payment was served much after coming into force of the amendment of the Act and the demand was made from 01.01.1992 upto 31.09.1992 within a week of the receipt of the notice and the tenant was also called upon to pay arrears of rent alongwith 15 % simple interest per annum as permissible under section 26 of the DRC Act and also taking notice of the fact that the case in question involved second default, the following observations were made:
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"11. I also consider that the learned RCT rent wrong in observing that the tenant was not liable to pay interest as demanded by the landlord on demand notice. Section 26 (1) of the DRC Act reads as under:
"26. Receipt to be given for rent paid.- (1) Every tenant shall pay rent within the time fixed by contract or in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable (and where any default occurs in the payment of rent, the tenant shall be liable to pay simple interest at the rate of fifteen percent per annum from the date on which such payment of rent is due to the date on which it is paid".
"12. This amendment was inserted by the legislature in 1988. The amendment makes it abundantly clear that the 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 when it is paid. Thus, the legislature made it clear that in case the rent is not tendered month by month by the tenant, the tenant incurs additional legal liability of paying interest @ 15% on the amount due for the delayed period. This additional liability has become part of the rent. A landlord can recover from the tenant only legally recoverable arrears rent and the landlord has no liberty to recover beyond what has already been agreed upon between the parties or the market rent. Where the rent is not not paid by the month to month, the interest over the rent, as levied by the statute, becomes part of the No.25656 /16 Page no.
legally recoverable rent and it cannot be said that unless there is an amendment in Section 14 (1) (a) or Section 15, the provisions of Section 26 would not apply. The rent due would mean that the rent due as per law and where the law specifically provides that if rent is not paid for the month when it is due, it has to be paid with interest of 15% per annum, then the rent due would include the rent plus the interest over it. The tenant in this case had been tendering rent with a gap of six month or nine month or so and had not been tendering rent month by month. The tenant had to tender rent alongwith accrued interest of 15 % per annum to the landlord in view of the statutory provisions of DRC Act. In the case in hand, the landlord had specifically demanded interest of 15 % over the delayed rent from the tenant vide notice of demand and once this notice is made, non tendering of rent with interest, tantamount to non-fulfillment of obligation under section 14 (1) (a) of DRC Act. I consider that the tender made by the tenant was not in accordance with law and was not a valid tender".
(iv) That a valid legal demand notice was duly served upon the respondent; and Petitioner has claimed to have sent legal notice dated 07.02.2005 Ex. PW-1/F wherein respondent no. 1 has been called upon to pay the arrears of rent. In the cross-examination of PW-1, no counter suggestion has been put. In the written statement also, respondent has admitted receiving the legal notice from the petitioner and has also admitting replying the same which is Ex.PW-1/G. thus, ingredient also stands established.
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32. Conclusion:
In the light of the above discussion, it is held that petitioner has successfully proved his case only under section 14 (1) (a) of DRC Act against the respondent no.1 in respect of the tenanted property. Respondent no.1 is held to be in arrears of rent @ Rs. 139.70/- per month with effect from 01.10.2002 to 28.02.2005. Respondent is accordingly directed to pay rent of Rs.139.70/- per month with effect from 01.10.2002 till the date of this order within 30 days alongwith statutory interest of 15 % per annum. The amount deposited under section 15 (1) of DRC Act be adjusted accordingly.
33. Separate case file be maintained in regard to extending the benefit of under section 14 (2)of DRC Act to respondent no.1. No order as to costs.
Digitally signed by NAVJEET NAVJEET BUDHIRAJA
BUDHIRAJA Date:
2018.04.26
15:34:28 +0530
Announced in the open court on (NAVJEET BUDHIRAJA)
24.04.2018 ACJ/CCJ/ARC(W)/24.04.2018
This judgment contains 20 pages and each page has been signed by me.
Digitally signed by NAVJEET NAVJEET BUDHIRAJA
BUDHIRAJA Date: 2018.04.26
15:34:59 +0530
(NAVJEET BUDHIRAJA)
ACJ/CCJ/ARC(W)/24.04.2018
No.25656 /16 Page no.