Delhi District Court
Smt. Kamla vs Sh. Kamal Kishore Arora on 14 February, 2022
IN THE COURT OF SH.RAMESH KUMAR
PRINCIPAL DISTRICT & SESSIONS JUDGE/
RENT CONTROL TRIBUNAL, NORTH-EAST
KARKARDOOMA COURTS, DELHI
RCT No.41325/15
CNR No. DLNE01-000875-2015
Smt. Kamla
W/o Late Sh. Madan Lal,
R/o F-143, Gali No.6, Chand Bagh,
Delhi-110094
........APPELLANT
Vs.
Sh. Kamal Kishore Arora
S/o Sh. M.C. Arora
R/o C-9/405, Brijpuri,
Delhi-110094.
........RESPONDENT
DATE OF INSTITUTION: 02.02.2015
DATE OF ARGUMENT : 05.02.2022
DATE OF JUDGMENT : 14.02.2022
APPEAL UNDER SECTION 38 OF THE DELHI RENT
CONTROL ACT,1958, AGAINST THE EVICTION
RCT 41325/15 Kamla vs. Kamal Kishore Arora Page no. 1 of 10
ORDER, DATED 15.11.2014, PASSED BY
SH. RAVINDER SINGH, ACJ-CUM-ARC, NORTH EAST
DISTRICT, KARKARDOOMA COURT, DELHI, IN
E.NO.50/13, TITLED AS "KAMAL KISHORE ARORA
VS. KAMLA."
J U D G M E N T:
1) Appellate jurisdiction of this Tribunal has been invoked under section 38 of Delhi Rent Control Act, feeling aggrieved by the order, dated 15.11.2014, passed by Sh. Ravinder Singh, Ld. ACJ CUMARC (NorthEast), Karkardooma Courts, Delhi, in an eviction petition bearing No. E50/13 titled as "Kamal Kishore Arora vs. Kamla" vide which eviction order was passed against the appellant.
2) Briefly stated the facts giving rise to filing of present appeal are that respondent/petitioner had filed an eviction petition under section 14 (1) (a) DRC Act, 1958, interalia, on the ground that he is owner/landlord of premises, bearing No. F143, Gali No.6, Chand Bagh, Delhi110094, and appellant is tenant under respondent/petitioner. She is defaulter in payment of rent and is neither paying nor tendering arrears of rent w.e.f. 01.08.2011, despite service of legal notice, dated 25.02.2013. Appellant had filed an application under Order 7 rule 11 read with section 151 CPC and same was dismissed vide order, dated 05.05.2014. Time was granted to the appellant to file the written statement, but the appellant had not filed the written statement, despite opportunity. The eviction petition RCT 41325/15 Kamla vs. Kamal Kishore Arora Page no. 2 of 10 under section 14 (1) (a) DRC Act, was allowed vide order, dated 15.11.2014, by the ld. Trial court. Hence, the present appeal.
3) In the grounds of appeal, it is stated that the ld. Trial Court did not appreciate the contention of the appellant and the documentary proof, lying with her, that it is the appellant, who is the owner of the tenanted premises and the respondent has nothing to do with the suit property or any part thereof. It is further stated that ld. Trial court did not appreciate the fact that the there has never been any relationship of landlord and tenant between the parties and the alleged rent agreement, dated 03.02.2011, is a forged and fabricated document. It is further stated that ld. Trial court failed to take into consideration the fact that there was not a single rent receipt proved on record and ld. Trial court failed to appreciate that when there was no such relationship of landlord and tenant between the parties, there was no occasion for the appellant, who is the owner of property, to pay any rent to the respondent. It is further stated that ld. Trial court did not appreciate the fact that the appellant, as soon as, she came to know about the fraud and cheating of the respondent, lodged a complaint with the police and other higher officials, on 13.01.2012, as well as got the alleged GPA in favour of the respondent cancelled as the said documents are null and void and not legally executed. It is further stated that Ld. Trial court did not appreciate the fact that the respondent never came into possession of the suit premises and there being no RCT 41325/15 Kamla vs. Kamal Kishore Arora Page no. 3 of 10 contractual relationship, whatsoever, between the parties the ld. Trial court failed to take into consideration the documents in its totality and has not referred to the documents of the parties, in a positive perspective. It is, therefore, prayed that the present appeal, be allowed and impugned order, dated 15.11.2014, be set aside.
4) Before the ld. Trial court, petitioner examined himself as PW1. PW1 relied upon documents, such as the site plan Ex.PW1/1, photocopy of agreement to sell, dated 17.10.2003, Ex.PW1/2, photocopy of receipt, dated 17.10.2003, as Ex.PW1/3, GPA dated 17.10.2003, as Ex.PW1/4, photocopy of Rent agreement, dated 03.02.2011, as Ex.PW1/5, photocopy of electricity bill, dated 08.08.2012, as Ex.PW1/6, photocopy of electricity bill, dated 06.12.2012, as Ex.PW1/7, Legal notice, dated 25.02.2013, as Ex.PW1/8 and speed post receipt, as Ex.PW1/9. PW1 was cross-examined by the counsel for the respondent and, thereafter, vide order, dated 04.09.2014, the petitioner's evidence was closed. Vide statement, dated 04.09.2014, counsel for the respondent also stated that he did not want to lead respondent's evidence. Accordingly, respondent's evidence was closed. After hearing, ld. counsels for the parties, ld. ARC observed that the submissions of respondent had nowhere claimed that she had paid the entire arrears of rent, within two months, from the date of service of notice. In fact, the respondent had claimed herself to be the owner of the tenanted RCT 41325/15 Kamla vs. Kamal Kishore Arora Page no. 4 of 10 premises and she had claimed that no rent was due against her. Ld. ARC further held that petitioner had proved his case. Therefore, as per the provisions of Section 15 (1) DRC Act, the respondent was held to be in arrears of rent, w.e.f. 01.08.2011.
5) Feeling aggrieved by this order, present appeal has been filed. Notice of appeal was given to respondent. Trial Court record was summoned.
6) I have heard ld. counsel for the appellant as well as ld. counsel for the respondent and have carefully perused the record file and have gone through the material placed on record.
7) It is submitted by ld. counsel for the appellant that the trial court, without asserting the relationship of landlord and tenant decreed the petition, under Section 14 (1) (a) of DRC Act, in favour of alleged landlord. It is further submitted that respondent concealed the fact that appellant had been continuously in possession of the suit property, till date, and respondent never resided in the said property. It is further submitted that, till the death of husband of the appellant, the respondent under the hidden agenda did not do any overt and covert act, but, after the death of husband of the appellant, on 11.10.2010, the respondent started to act upon his hidden agenda to grab the property of the appellant. It is further submitted that in the present petition, under appeal, the main counsel of the appellant was negligent and he did not file any written statement RCT 41325/15 Kamla vs. Kamal Kishore Arora Page no. 5 of 10 in the petition, under Delhi Rent Conrol Act, nor did any effort to get conducted the DE of the appellant, nor even argued the matter, at final stage, rather sent a proxy counsel to argue the matter. The proxy counsel is not entitled to argue the matter, under the Advocates Act. It is further prayed that impugned decree of the Trial court may be set aside and case be decided in favour of the appellant, with heavy and exemplary costs.
8) Per contra, it was submitted by ld. counsel for the respondent that appeal is not legally maintainable. It is further submitted that order, dated 15.11.2014, is perfectly valid and passed by ld. Trial court, as per facts of case, record of the case, evidence and law applicable to the case in question. It is further submitted that the ld. Trial court passed the order, on 15.11.2014, under Section 14 (1) (a) of DRC Act, against the appellant as appellant was held in arrears of rent and the appellant was directed to deposit the arrears of rent but the appellant did not deposit the arrears of rent and the ld. Trial court, on 24.02.2015, passed the order directing the appellant to evict from the tenanted premises. Ld. Counsel for the respondent submitted that appellant is enjoying the suit premises, without paying any rent. She did not comply with the order under section 15(1) DRC Act. It is further submitted that the present appeal is, otherwise, time barred. It is further submitted that the present appeal is false and frivolous and filed, after suppressing material facts, and, legally not maintainable and, as such, it is submitted that, there is no RCT 41325/15 Kamla vs. Kamal Kishore Arora Page no. 6 of 10 infirmity in the order, dated 15.11.2014, and same does not call for any interference, as such, appeal is liable to be dismissed.
9) I have given my considerable thoughts to the respective submissions of ld. counsels for parties and have carefully perused the record.
10) In an eviction petition under section 14(1) (a) DRC Act, the following points are to be considered:-
(i) There exists relationship of landlord and tenant between the parties.
(ii) The tenant was in arrears of rent.
(iii) A legal notice of demand was served upon the
tenant, claiming arrears of rent.
(iv) The tenant fails to pay or tender arrears of rent,
despite service of notice of demand.
11) In the instant case, the appellant had denied the
landlord/tenant relationship. The petitioner/respondent had relied upon Rent Agreement, Ex.PW1/5, to show that he is the landlord of the appellant with regard to the tenanted premises. The appellant stated that the said Rent Agreement was got executed fraudulently but the appellant had not denied her signatures, on the rent agreement. The appellant had failed to discharge his burden. Further with regard to the GPA, Ex.PW1/4, the appellant had not denied her signatures on the same and she had only stated that the GPA was fraudulently got executed. The appellant RCT 41325/15 Kamla vs. Kamal Kishore Arora Page no. 7 of 10 failed to discharge her burden of proving the fraud played. In view of above, ld. ARC held that the petitioner/respondent is the landlord of the appellant with regard to the tenanted premises.
Furthermore, the rate of rent was held to be @ Rs.1500/- per month as mentioned in the Rent Agreement Ex.PW1/5. The petitioner/respondent had proved that the respondent is in arrears of rent, w.e.f. 01.08.2011 @ Rs.1500/- per month. Further, vide legal notice, dated 25.02.2013, Ex. PW1/8 and speed post receipt Ex.PW1/9, the respondent was informed that she is in arrears of rent, since 01.08.2011. The appellant had failed to pay the entire arrears of rent. Infact, the appellant had claimed herself to be the owner of the tenanted premises and she had claimed that no rent is due against her.
12) Section 14(1) (a) Delhi Rent Control Act (in short "DRC Act") is reproduced here-in-below, for ready reference :
"14. Protection of tenant against eviction. - (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord and against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-
(a) that the tenant has neither paid nor tendered the whole of the arrears of rent RCT 41325/15 Kamla vs. Kamal Kishore Arora Page no. 8 of 10 legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in section 106 of the Transfer of Property Act, 1882(4 of 1882)".
13) It is not the case of appellant that, after service of notice of demand, dated 25.02.2013, same was complied with or that no cause of action survived in favour of the petitioner to file eviction petition on the basis of notice, dated 25.02.2013. A tenant cannot be allowed to enjoy the tenanted premises, without payment of rent. Even, if the petitioner did not demand rent that does not exonerate tenant from her liability to pay the rent to the landlord. Under these circumstances, keeping in view the fact that as per the case of appellant herself, she never paid any rent to the petitioner, appellant was liable to pay legally recoverable arrears of rent. It is not the case of appellant that, in compliance of notice, she paid or tendered arrears of rent to the petitioner. Under these circumstances, petitioner had succeeded in establishing his case, under Section 14(1) (a) of the DRC Act.
14) The appellant had filed, an application under Order 41 Rule 27 read with section 151 CPC, seeking permission of this court to lead additional evidence. It is stated, in the application, that the earlier counsel of the appellant did not file RCT 41325/15 Kamla vs. Kamal Kishore Arora Page no. 9 of 10 written statement and other relevant documents, before the ld. Trial court. As a result of which, the defence of the appellant was struck of by the ld. Trial court. Hence, by virtue of this application, appellant sought permission to lead additional evidence. It is pertinent to mention here that, once the defence of the appellant was struck of by the ld. Trial court, the appropriate remedy for the appellant would have been to move appropriate application, under relevant provisions, before the ld. Trial court, seeking recalling of order of striking of defence of the appellant. As such, this application is not maintainable, before this court, particularly, when the judgment has been passed by the ld. Trial court, directing the appellant to vacate the suit premises. In view of these findings, the application, under section 107 CPC, moved on behalf of the appellant also become infructuous.
15) Result of the aforesaid discussions is that there is absolutely no infirmity in the order passed by the ld. Trial Court, and the same does not call for any interference. As such, there is no merit in the appeal. Same is accordingly, dismissed.
16) Copy of this order, alongwith Trial Court record, be sent back. File be consigned to record room.
ANNOUNCED IN THE COURT ON 14 th FEBRUARY, 2022 (RAMESH KUMAR) PRINCIPAL DISTRICT AND SESSIONS JUDGE/ RENT CONTROL TRIBUNAL, NORTH-EAST KARKARDOOMA COURTS, DELHI RCT 41325/15 Kamla vs. Kamal Kishore Arora Page no. 10 of 10