Delhi District Court
Sh. Shamim Ahmed Rashid vs Sh. Krishan Lal Gambhir (Since ... on 25 July, 2016
In the Court of Sh. Rajinder Kumar : Additional Rent Controller02,
Central District, Tis Hazari Courts, Delhi.
E. No. 716/14/07
New Regd. No. 78517/16
In the matter of:
Sh. Shamim Ahmed Rashid,
S/o late Sh. Abdul Rashid,
R/o7690, Daroga Street,
Quresh Nagar, Sadar Bazar,
Delhi-06. ................... Petitioner
Vs.
Sh. Krishan Lal Gambhir (since deceased)
1). Sh. Kailash Gambhir
2). Sh. Surender Gmbhir
3). Sh. Satish Gambhir
All Sons of Late Sh. Krishan Lal Gambhir
R/o 1238-1240, Sadar Thana Road,
Sadar Bazar, Delhi-06.
Also At
5900, Basti Harphool Singh,
Sadar Bazar, Delhi-06.
Also At
111/D-5, Lajpat Nagar, New Delhi.
Also At
731, Gali No. 11, Sadar Bazar,
Delhi-06. .................... Respondents
E-716/14/07 Shamim Ahmed Rashid Vs. Krishan Lal Gambhir& ors. 1/11
Date of Institution : 30.08.2007
Date of Arguments : 13.07.2016
Date of Judgment : 25.07.2016
APPLICATION FOR EVICTION OF TENANT UNDER
SECTION 14(1)(a) & (b) OF THE DELHI RENT CONTROL
ACT, 1958.
JUDGMENT:
1. This is an application under clause (a) & (b) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act 59 of 1958') made by petitioner against the respondents for recovery of possession of premises i.e. 717, 718, 731 and part of 719, Green Market, Sadar Bazar, Delhi more specifically shown red in the site plan annexed with the application.
2. As per the contents of the petition, the petitioner is the owner/landlord of the suit premises which was let out to M/s Krishan Lal Gambhir & Sons through its prop. Sh. Krishan Lal Gambhir @ Rs. 75/- per month vide rent agreement dt. 18.06.1970. That the respondents have not paid the rent w.e.f. 01.01.1995. That the petitioner got a legal notice dated 04.03.2002 for the payment of arrears of rent. That the respondents have sublet the entire tenanted premises to Mohd. Usman and his brothers without the written consent of the petitioner.
3. The application of eviction is contested by the respondents by filing of written statement of defence on the grounds that no notice of E-716/14/07 Shamim Ahmed Rashid Vs. Krishan Lal Gambhir& ors. 2/11 demand was served upon the respondents. That the petition was barred by the law of limitation and that the petition was bad for non joinder of the necessary parties.
4. Replication has been filed by the petitioner to the written statement of the respondents, wherein the averments made in the application for eviction have been reiterated whereas the defence taken by the respondents in their written statement is traversed.
5. In support of his case, the petitioner got examined himself as PW-1. During his examination-in-chief PW1 tendered his affidavit Ex.PW1/A and also relied upon various documents Ex. PW1/1 to Ex. PW1/10. The petitioner (PW1) was cross-examined by the Ld. Counsel for the respondents and vide order dt. 21.01.2015 PE was closed.
6. In support of their case, the respondents got examined Mohd. Usman(RW1), who during his examination in chief, tendered his affidavit Ex. RW1/A and also relied upon the documents. Ex. RW1/1 to Ex. RW1/3 and also the documents Mark X1. Mohd. Usman (RW1) was cross examined by the ld. Counsel for the petitioner and on 02.03.2016 RE was closed.
7. The present application has been made also under clause
(a) of subsection (1) of section 14 of Act 59 of 1958 which reads as follows:
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 against a tenant:
E-716/14/07 Shamim Ahmed Rashid Vs. Krishan Lal Gambhir& ors. 3/11 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 on him by the landlord in the manner provided in section 106 of the Transfer of Property Act, 1882 (4 of 1882);
* * *
(b) that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord;
* * *
8. The cause of action for eviction on the ground of non-
payment of rent thus consists of the following facts:
(i) Relationship of landlord and tenant; (ii) Existence of arrears of rent legally recoverable on the date of notice of demand.
(iii) Service of notice of demand in the manner provided in section 106 of the TPA and
(iv) Failure of the tenant to pay or tender the whole of the arrears of rent legally recoverable from him within two months of the date of service of notice.
E-716/14/07 Shamim Ahmed Rashid Vs. Krishan Lal Gambhir& ors. 4/11 So far as the fact of the relationship of landlord and tenant between the parties is concerned, it is pertinent to mention here that in reply to paras 3 (a), (b) & 18 of the written Statement filed by respondents, the relationship is not admitted specifically. However, the respondents have admitted themselves to be the tenants in the property in question.
In the evidence affidavit filed by the petitioner i.e. Sh. Shamim Ahmad Rashid (PW-1) it is stated that he was the owner and landlord of the suit premises. While under cross-examination, the petitioner remained on the same stand and nothing revealed out of his cross-examination to support the contentions of the respondents.
In the evidence affidavit filed by the side of respondent i.e. Mohd. Usman (RW1), the ownership/landlordship of the petitioner is neither disputed nor denied.
It is pertinent to mention here that there are three respondents in this petition and none of them had come to th witness box in support of their contentions. Moreover, Mohd. Usman (RW1) while under cross-examination, had not answered to several questions by saying that he do not know whether the property in question was let out to Sh. Krishan Lal Gambhir. The witness was also not aware as to whether Sh. Krishan Lal Gambhir used to file the ITR's or not. The witness (RW1) also do not know whether the respondents have filed any E-716/14/07 Shamim Ahmed Rashid Vs. Krishan Lal Gambhir& ors. 5/11 document pertaining to the business carried out by them during the life time of Sh. Krishan Lal Gambir.
It was held by the Hon'ble High Court of Delhi in Rajender Kumar & Ors. Vs Leela Wati & Ors 155 (2008) DELHI LAW TIMES 383 that where the tenant denies the ownership of landlord, he is obliged to disclose who was the owner/landlord and further that the landlord is not supposed to prove absolute ownership as required under TPA. It was further held that the landlord is required to show only that he is more than tenant.
It is contended by the petitioner that in a petition u/s 14 (1)
(e) DRC Act, he is supposed to show prima-facie that he is the owner/landlord of the suit premises.
Hence, the contention of the respondents that the petitioner is not the owner of the suit premises is not acceptable as they have failed to show the title better than the petitioner.
9. Therefore, in the light of the pleadings of the parties and other material placed before this court, in so far as the purpose of section 14 of Act 59 of 1958, it seems that the petitioner is the owner and there exists relationship of landlord and tenant between the parties.
10. So far as the question of existence of arrears of rent is concerned, it is pertinent to mention here that as per the contents of the petition, the respondents have not paid the rent w.e.f 01.01.95 despite the legal notice dt. 04.03.02 @ Rs.75/- p.m. The petitioner (PW1) re-iterated E-716/14/07 Shamim Ahmed Rashid Vs. Krishan Lal Gambhir& ors. 6/11 and re-affirmed the facts of his petition in his evidence affidavit Ex. PW1/A. As per the contents of the W/S filed by the respondents, no rent was due w.e.f 01.01.95 and that the petitioner want to increase the rent from Rs. 75/- to Rs.500/- p.m. That the rent was tendered on several times but the petitioner did not accept the same and always demanded the increased rent.
While under cross-examination, it was deposed by Mohd. Usman (RW1) that he do not know whether the respondents were in arrears of rent on 01.01.95 @ Rs.75/- p.m. It is pertinent to mention here that out of three respondents, none had come to the witness box to support the contents of their W/S and the witness got examined for them does not know the material facts of the present case.
In view of above, the respondents have paid to refute the claim of the petitioner regarding the arrears of rent. Accordingly, I have no hesitation in holding that the respondent are in the arrears of rent and liable to pay the same since three years prior to demand notice dt. 04.03.02 @ Rs.75/- p.m.
11. Now, it is to be decided whether a demand notice was duly served upon the respondents and thereafter whether the respondents have failed to pay/ tender the rent within two months of the date of service.
As per petitioner, the respondents did not pay/ tender the whole of the arrears of rent within two months of the service of Demand Notice as per Section 106 TPA.
E-716/14/07 Shamim Ahmed Rashid Vs. Krishan Lal Gambhir& ors. 7/11 It is pertinent to mention here that in the W/S filed by the respondents, the service of Legal Notice is denied by them but while under cross-examination Mohd. Usman (RW1) deposed that he do not know whether any notice had been given regarding arrears of rent to the respondents. The witness further deposed that he do not know whether the respondents were in the arrears of rent on 01.01.95 @ Rs.75/- p.m. The witness also submitted that he do not know whether the notice dt. 04.03.02 was sent or duly received by the respondent or not.
It becomes pertinent to mention here that Mohd. Usman (RW1) is not a party to the present petition. It is also pertinent to mention here that none of the respondents had chosen to come to th witness box to depose in this case. It is also pertinent to mention here that Mohd. Usman (RW1) was not knowing the answers to several material questions, material for the disposal of the present petition. I have no hesitation in writing that the best evidence is withheld by the respondents for the reasons best known to them.
It is the plea taken by the respondents in their W/S that the rent was tendered on several times to the petitioner but he always demanded the increased rent and did not accepted the rent.
It is pertinent to mention here that there is nothing on record to substantiate the intention of the respondent to pay/tender the rent to the petitioner because no rent u/s 27 DRC Act was ever deposited by the respondents. The respondents have failed to discharge the burden to prove that they have paid the rent within 2 months.
E-716/14/07 Shamim Ahmed Rashid Vs. Krishan Lal Gambhir& ors. 8/11 Hence, it is clear that the respondents have failed to tender/pay the arrears of rent within 2 months of the service of the notice.
12. In view of above, on the basis of the material available on record and the evidence led by the parties, I am of the opinion that the petitioners have succeeded in proving the ground for eviction prescribed u/s 14(1)(a) DRC Act, 1958.
13. Now, so far as the issue of sub-letting or parting with the possession of the suit premises is concerned, it is pertinent to mention here that it is pleaded by the petitioner in the petition itself that the respondents have sub-let the entire tenanted premises to Mohd Usman and his brothers without the written consent of the petitioner.
In the evidence affidavit filed by the petitioner (PW1), it is mentioned in para no. 9 that the deceased Sh. Krishan Lal has sub-let and parted with the possession of the suit premises to Mohd. Usman.
In the W/S filed by the respondents, it is pleaded that w.e.f 05.01.96, the defendants have started business with Mohd Usman, who also sits at the shop and conduct business as a partner of the respondents and that Mohd. Usman has no right or concerned with the tenancy of the respondents.
As per evidence affidavit filed by Mohd. Usman (RW1), he was the partner of the respondents and that as per the terms of the Partnership Deed, he was having no right or concern with the tenancy of the respondents.
E-716/14/07 Shamim Ahmed Rashid Vs. Krishan Lal Gambhir& ors. 9/11 On the basis of the pleadings of the parties and the evidence affidavits filed by the witnesses, it is clear that the respondents were the tenants of the petitioner. Now, it is to be ascertained as to whether the respondents have sub-let, assigned or parted with the possession of the suit premises to Mohd. Usman and if yes, whether it was with the written consent of the petitioner.
14. In para 18 (a) (5) of the W/S filed by the respondents, it is denied that the respondents have sub-let, assigned or parted with the possession of the suit premises to Mohd. Usman and his brother without the written consent of the petitioner. Similarly, in the evidence affidavit filed by Mohd. Usman (RW1), he re-iterated and re-affirmed the contents of the W/S. For the sake of arguments, if it is presumed that there was any sub-letting by the respondents in favour of Mohd. Usman without the written consent of the petitioner, even then the petitioner has failed to disclose as to when did the sub-letting had taken place and on what terms.
15. No evidence has been brought on record by the petitioner to prove the sub-tenancy in favour of Mohd. Usman. On the basis of the pleadings and the evidence led by the parties, the petitioner has failed to prove that the respondents have sub-let, assigned or otherwise parted with the possession of the suit premises without the written consent of the petitioner. The petitioner has failed to place on record any rent E-716/14/07 Shamim Ahmed Rashid Vs. Krishan Lal Gambhir& ors. 10/11 receipt for the payment of the said rent to Mohd. Usman to prove the sub-tenancy.
In view of above discussion, the petition u/s 14(1) (b) is dismissed and qua Sec. 14(1) (a) of Act 59 of 1958 is hereby allowed.
The eviction u/s 14(1)(a) of the DRC Act would be subject to their entitlement for the benefit u/s 14(2) of the Act, for which separate enquiry would be conducted.
No order as to costs.
Announced in the open court (Rajinder Kumar) on this 25th July 2016 ARC-2/THC/Delhi E-716/14/07 Shamim Ahmed Rashid Vs. Krishan Lal Gambhir& ors. 11/11