Delhi District Court
Sh. Shoki Chaudhary vs Sh. Mukesh on 5 December, 2013
IN THE COURT OF SHRI VINOD GOEL, DISTRICT & SESSIONS
JUDGE: ADDITIONAL RENT CONTROL TRIBUNAL:
SHAHDARA: KARKARDOOMA COURTS: DELHI
RCA No. 27/13
Unique Identification No. 02402C0184882013
Sh. Shoki Chaudhary
S/o Sh. Ramji Chaudhary,
R/o H. No. 228, Gali No.5,
West Kanti Nagar, Krishna Nagar,
Delhi110051. ....Appellant
Versus
Sh. Mukesh
S/o Late Sh. Mangal Singh,
R/o H. No. 228, Gali No.5,
West Kanti Nagar, Krishna Nagar,
Delhi110051. ....Respondent
Date of Institution : 20.06.2013
Arguments heard on : 22.11.2013
Date of Judgment : 05.12.2013
Appeal under Section 38 of the Delhi Rent Control Act, 1958 of
against the impugned judgment dated 16.05.2013 passed by the
court of Sh. Sunil Chaudhary, Ld. Rent Controller, Shahdara,
Delhi.
JUDGEMENT :
1. The challenge in this appeal under Section 38 of the Delhi Rent Shoki Chaudhary vs. Mukesh RCA No.27/13 Decided on 05.12.2013 Page 1 of 12 Control Act, 1958 (hereinafter referred as "DRC Act") is the impugned judgment dated 16.05.2013 by which the Ld. Rent Controller allowed the eviction petition in respect of the property in question under Section 14 (1) (a) of the "DRC Act" and directed the appellant/tenant (hereinafter referred to as "tenant") to pay the arrears of rent to the landlord/petitioner (hereinafter referred to as "landlord") or deposit the same in the court within one month and kept the matter for consideration on the aspect of benefit under Section 14 (2) of "DRC Act". Shorn of unnecessary details, the facts relevant for disposal of this appeal are that on 03.01.2008, "landlord" filed an eviction petition against the "tenant" in respect of premises bearing no. H.No. 228, First Floor, Gali No.5, West Kanti Nagar, Krishna Nagar, Delhi110051 as shown in red colour in the site plan attached with the petition under Section 14 (1) (a) of the "DRC Act", interalia, pleading therein that the said premises was let out to the "tenant" on rent @ Rs. 2,500/ per month in May 2006 and the "tenant" has not paid the rent of the said premises @ Rs.2,500/ per month since June 2006 despite demand notice dated 18.10.2007 served upon the "tenant". In his written statement, the "tenant", interalia, pleaded that he took the said premises on rent @ Rs.1,000/ per month in May 2005 and he has paid rent by cash upto December 2007 and after expiry of six months, Shoki Chaudhary vs. Mukesh RCA No.27/13 Decided on 05.12.2013 Page 2 of 12 on request of the "landlord", he shifted in a smaller room and on demand of the "landlord", he advanced him a sum of Rs.75,000/ in July 2006 after selling his plot at Karawal Nagar for Rs.90,000/ for marriage of his daughter and rent was decreased to Rs.500/ per month. The "tenant" demanded back the said amount of Rs.75,000/ in June 2007 but the "landlord" started quarreling with him and refused to repay the said borrowed amount. The "landlord" filed replication to the written statement of the "tenant" denying his allegations and reaffirming the averments made in the eviction petition. The "landlord" has denied that the rate of rent was fixed as Rs.1,000/ p.m. or that it was reduced to Rs.500/ p.m. or that the "tenant" advanced him Rs.75,000/ in July 2006 or that the rent has already been paid upto December 2007. Meanwhile, vide order dated 29.07.2008, Ld. ARC directed the "tenant" to deposit the admitted arrears of rent w.e.f. January 2008 @ Rs.500/ per month till date within one month under Section 15 (1) of "DRC Act".
2. In support of his case, the "landlord" examined himself as PW1. He has also examined PW2 Sh. Ramesh. On the other hand, the "tenant" has examined himself as RW1.
3. Vide impugned judgment dated 16.05.2013, Ld. Rent Controller after making enquiry found the rent of the said premises @ Rs.2,500/ Shoki Chaudhary vs. Mukesh RCA No.27/13 Decided on 05.12.2013 Page 3 of 12 per month and held that the "tenant" has not paid/tendered the entire recoverable rent within the stipulated period after service of the notice upon him. The Ld. Rent Controller also directed the "tenant" to pay/deposit arrears of rent w.e.f. June 2006 @ Rs.2,500/ per month till that day within one month in order to give benefit under Section 14 (2) of "DRC Act".
4. Now, the said findings of the Ld. Rent Controller recorded in the impugned judgment dated 16.05.2013 have been assailed by the "tenant" on the ground that the "landlord" has not produced any documentary evidence to show that the rent was ever Rs.2,500/ per month; that the rent of the premises was Rs.1,000/ per month including electricity and water charges which was reduced to Rs.500/ per month including electricity and other charges; that the "landlord" has not proved the arrears of rent as claimed in the petition; and the alleged notice was never served upon the "tenant".
5. I have heard learned counsel for the parties and very carefully perused the material available on record.
6. It is argued by ld. counsel for the "tenant" that no MCD record has been filed by the "landlord" to prove rate of rent; that the rate of rent of the said premises has been Rs.500/ per month; that the "landlord" has not filed any rent agreement or receipt to show the rate Shoki Chaudhary vs. Mukesh RCA No.27/13 Decided on 05.12.2013 Page 4 of 12 of rent of Rs.2,500/ per month; that the "landlord" has also not filed copies of his income tax returns to prove the rate of rent. Per contra, it is argued by ld. counsel for the "landlord" that the deposition of the "landlord" as PW1 and his witness PW2 Sh. Ramesh on the question of rate of rent went unrebutted and unchallenged and despite opportunity, the "tenant" has not cross examined the "landlord" on rate of rent and the other witness PW2 Sh. Ramesh was also not cross examined at all by the "tenant". He also argued that his positive evidence in the statement of "landlord" as PW1 and his witness PW2 Sh. Ramesh about rate of rent and arrears of rent has not been rebutted by the "tenant", and that the "landlord" has proved his case and the appeal is liable to be dismissed.
7. I have given my thoughtful consideration to the rival contentions of the parties.
8. Before appreciating the rival contentions of the parties, it is necessary to refer Section 14 (1) (1) of the "DRC Act" which reads as under: "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 Shoki Chaudhary vs. Mukesh RCA No.27/13 Decided on 05.12.2013 Page 5 of 12 in favour of the landlord 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 the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served of him by the landlord in the manner provided in section 106 of the Transfer of Property Act, 1882 (4 of 1882)."
9. In order to prove his case, the "landlord" seeking recovery of possession of the tenanted premises against the "tenant" on the ground of nonpayment of rent under Section 14 (1) (a) of the "DRC Act", is required to prove (i) that there is a relationship of landlord and tenant between the parties, (ii) that there were legally recoverable arrears of rent against the tenant, (iii) that the notice of demand of such arrears of rent has been served by him on the tenant in the manner provided in Section 106 of Transfer of Property Act, 1882 and (iv) that the tenant has failed to pay such legally recoverable arrears of rent within stipulated period of two months from the date of service of such demand notice.
Shoki Chaudhary vs. Mukesh RCA No.27/13 Decided on 05.12.2013 Page 6 of 12
10. So far as the relationship of landlord and tenant is concerned, the "tenant" has admitted the relationship of "landlord" and "tenant" between the parties in respect of the said premises. In preliminary objection no.9 of his written statement, the "tenant" has also admitted the service of the notice of demand dated 18.10.2007 upon him on 22.10.2007 which reads as under: "9. That the present petition filed by the petitioner is premature as the present petition is filed within two months i.e. on 18.12.2007 while the notice dated 18.10.2007 served upon the respondent by the petitioner on 22.10.2007 so the present petition is liable to be dismissed."
11. The "tenant" has pleaded that the petition of the "landlord" is premature as the same has been filed on 18.12.2007 within two months of the service of the notice upon him on 22.10.2007. However, the fact remains that the petition under Section 14 (1) (a) of the "DRC Act"
was filed before the Ld. Rent Controller by the "landlord" on 03.01.2008. Admittedly, the legal notice dated 18.10.2007 was served upon the "tenant" on 22.10.2007 and the petition, having been filed on 03.01.2008, cannot be said to be premature as the same has been filed after expiry of the requisite period of two months. So the only point to be seen by this court is as to (i) what was the rate of rent of the said Shoki Chaudhary vs. Mukesh RCA No.27/13 Decided on 05.12.2013 Page 7 of 12 premises and (ii) the period since when the "tenant" has been in arrears of rent.
12. To prove the "rate of rent" and "period of default" in making payment of rent, the "landlord" while examining himself as PW1 on 12.10.2010, interalia, deposed in his affidavit tendered in evidence Ex.P1 that he has let out his premises to the "tenant" in the month of May 2006 at a monthly rent of Rs.2,500/ excluding electricity and water charges and the "tenant" has not paid him the rent since June 2006 till date despite his requests. He deposed that a legal notice of demand dated 22.10.2007 has been served upon the "tenant" through his counsel and despite notice, he has not paid him arrears of rent within 60 days of receipt of notice. He also deposed that the "tenant" is a habitual defaulter in making payment of rent. He proved the copy of legal notice dated 18.10.2007 Ex.PW1/A which was sent to the "tenant" vide postal receipt no.3599 dated 22.10.2007 Ex.PW1/B and UPC dated 22.10.2007 Ex.PW1/C. The registered AD envelope Ex.PW1/D sent on 22.10.2007 vide postal receipt no3599 returned with the report of the postman dated 29.10.2007 that "BAR BAR JANE PAR PRAPTKARTA NAHI MILTA". As the receipt of this notice is admitted by the "tenant" in preliminary objection no.9 of his written statement, it appears that he has received the copy of notice sent to Shoki Chaudhary vs. Mukesh RCA No.27/13 Decided on 05.12.2013 Page 8 of 12 him through UPC on 22.10.2007. Even otherwise, the "tenant" has avoided receiving of the notice by registered AD post despite several visits of the postman which is deemed to have been served upon him and in this regard, the judgment of our Hon'ble High Court of Delhi in Prime Industries vs. Rafeeq Ahmad 1997 (1) RCR 661 can be referred to. The witness PW1 ("landlord") was cross examined by the "tenant" on 23.11.2010 and on 23.09.2011 but there is no cross examination by the "tenant" either on the point of rate of rent of Rs. 2,500/ per month or on the point of arrears of rent since June 2006 and this testimony of the "landlord" went unrebutted and unchallenged. The "tenant" has also not put his defence in the cross examination of PW1 that rate of rent has been Rs.1,000/ per month or Rs.500/ per month or he has paid the rent upto December 2007 or advancing of loan of Rs.75,000/ to the "landlord". Similarly, the "tenant" has not cross examined PW2 Sh. Ramesh on these points and the "tenant" has also not put his case in cross examination of PW2. While relying upon the judgment of Calcutta High Court in A.E.G. Carapiet vs. A.Y. Derderian AIR 1961 Cal 359, the Hon'ble Supreme Court has recently held in M.B. Ramesh (D) by LRs vs. K.M. Veerage Urs (D) by LRs and others 2013 (7) SCC 490 that whenever the opponent has declined to avail himself of the Shoki Chaudhary vs. Mukesh RCA No.27/13 Decided on 05.12.2013 Page 9 of 12 opportunity to put his essential and material case in cross examination, it must follow that he believed that the testimony given could not be disputed at all. It is a rule of essential justice. Reference can also be given to the judgment of Hon'ble High Court of Calcutta in Traders Syndicate vs. Union of India, AIR 1983 Calcutta 337. In view of non cross examination of PW1 Sh. Mukesh ("landlord") and PW2 Sh. Ramesh by the "tenant" on rate of rent and period of default, and not putting his defence about rate of rent to be Rs.1,000/ per month or Rs.500/ per month and payment of rent upto December 2007, the "tenant" is deemed to have admitted the rate of rent to be Rs.2,500/ per month of the said premises and he has not paid rent since June 2006 and therefore, ld. trial court has arrived at a just conclusion that the rate of rent of the said premises was Rs.2,500/ per month and the "tenant" has not paid such rent since June 2006 to the "landlord".
13. The "tenant" has also examined himself as RW1 and deposed about rate of rent to be Rs.1,000/ per month and advancing of loan of Rs.75,000/ in July 2006 to the "landlord" by cash in the presence of his wife Smt. Gulabi and about decreasing of rent to Rs.500/ per month. In his cross examination, the "tenant" stated that he was not issued any rent receipt by the "landlord". The "tenant" admitted that he did not file any petition against the "landlord" for not issuing the Shoki Chaudhary vs. Mukesh RCA No.27/13 Decided on 05.12.2013 Page 10 of 12 rent receipts. He also stated that he does not have any document to show advancing of loan of Rs.75,000/ to the "landlord" or reduction of rent from Rs.1,000/ per month to Rs.500/ per month of the said premises. He also admitted that while taking the premises on rent, no agreement was reduced into writing. He has also not examined his wife Smt. Gulabi or any other witness in support of his defence. The "tenant" thus failed to adduce reliable evidence in support of his defence that the rent was agreed to be Rs.1,000/ per month or Rs. 500/ per month in respect of the said premises or that he has paid rent upto December 2007.
14. At the cost of repetition, from the conduct of the "tenant" in non cross examining PW1 Sh. Mukesh ("landlord") and PW2 Sh. Ramesh on the point of rate of rent of Rs.2,500/ per month and arrears of rent since June 2006, it is established that the rent of the said premises was Rs.2,500/ per month and the "tenant" has been in arrears of rent @ Rs.2,500/ per month w.e.f. June 2006 at the time of filing the eviction petition under Section 14 (1) (a) of the "DRC Act". The "tenant" has admitted the receipt of notice of demand on 22.10.2007 from the "landlord". In view of this discussion, Ld. Rent Controller has rightly held that the "tenant" has been in arrears of rent @ Rs.2,500/ per month since June 2006 at the time of filing the Shoki Chaudhary vs. Mukesh RCA No.27/13 Decided on 05.12.2013 Page 11 of 12 petition. Vide order dated 29.07.2008, Ld. ARC has given the directions to the "tenant" under Section 15 (1) of "DRC Act" for payment of admitted rent and vide impugned dated 16.05.2013, Ld. Rent Controller after enquiry has rightly modified its said order and given the directions to the "tenant" to pay/deposit the arrears of rent @ Rs.2,500/ per month w.e.f. June 2006 till that day within one month in order to give benefit under Section 14 (2) of the "DRC Act". As such, I do not find any illegality or irregularity or impropriety in the impugned judgment dated 16.05.2013 passed by the court of Ld. Rent Controller, Shahdara, Delhi. Appeal is devoid of any merit and same is hereby dismissed with no order as to cost. Trial court record be sent back alongwith an attested copy of instant judgment. Appeal file be consigned to record room.
Announced in open Court
th
on 5 December, 2013 (Vinod Goel)
District & Sessions Judge,
Additional Rent Control Tribunal,
Shahdara, KKD Courts, Delhi.
Shoki Chaudhary vs. Mukesh
RCA No.27/13
Decided on 05.12.2013 Page 12 of 12