Delhi District Court
Rajesh Kumar @ Raju vs Smt. Rajwati on 28 July, 2020
IN THE COURT OF SH SANJAY SHARMA-II, ADDITIONAL
DISTRICT JUDGE-05, SOUTH-EAST DISTRICT,
SAKET COURTS, NEW DELHI
RCT ARCT No. 1118/2016 (Old No. 11/13)
CNR No.: DLSE01-000149-2013
Rajesh Kumar @ Raju
S/o Sh. Cheda Lal Yadav
R/o B-Block, Gali No. 6, Roshan Nagar,
Agwaripur, Faridabad, Haryana
..... Appellant
VERSUS
Smt. Rajwati
W/o Sh. Ram Kumar Bhardwaj
R/o D-7, Rewati Kunj, Kalkaji Mandir,
New Delhi-110019
..... Respondent
Date of Institution : 20.05.2013
Date of Arguments : 27.02.2020
Date of Order : 28.07.2020
ORDER
1. The respondent filed an application under Order 47 Rule 1 read with Section 114 and Section 151 of 'The Code of Civil Procedure, 1908' (In short 'the Code') seeking review of order dated 19.04.2017 whereby 7 days delay in filing of appeal was condoned.
2. The ground set-up for seeking review of the said order is that there is an apparent error on the face of the order as no sufficient cause was furnished for seeking condonation of the said delay and the explanation that his counsel provided him certified copy of the impugned order on 12.05.2013 by oversight is condemning a lawyer in his absence and thereby a valuable right accrued to the appellant was infringed. RCT No. 1118/16 Rajesh Kumar @ Raju vs Rajwati Page No. 1 of 22
3. The grounds raised in the said application were also agitated while opposing the application for seeking condonation of delay. The Court considered the said grounds and condoned the delay in filing of the appeal. The relevant part of the said order is as under:
"It is submitted by Ld. Counsel for the appellant that the impugned order was passed on 09.04.2013. Certified copy of the same was applied for on 15.04.2013 and was delivered on 17.04.2013. But, the appellant was not informed about the same due to his advocate's by oversight. The certified copy was handed over only on 12.05.2013. Thereafter, the appellant contacted the present advocate for filing the present appeal. There is only seven days delay. The said delay was for this reason and was not intentional. If the delay is not condoned, the appellant shall suffer irreparable loss.
The respondent vide her reply has sought dismissal of this appeal claiming that baseless allegations against the advocate have been levelled just to seek condonation of the delay. The appellant has failed to comply with the impugned order dated 09.04.2013 and has not made any deposit. Nor has he given any reason for non-deposit. This appeal is not maintainable even on merits.
Appellant has explained that the certified copy of the impugned order although received by his advocate on 17.04.2013, but the same due to oversight was handed over to him only on 12.05.2015. In view of the same and taking into account that there is only seven days delay and in the interest of justice, this application is allowed and the delay in filing the present appeal is condoned."
4. This Court does not find any apparent error in the said order warranting exercise of review of the said order. Accordingly, the application under Order 47 Rule 1 read with Section 114 and Section 151 of the Code is dismissed.
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5. The appellant has filed an appeal under Section 38 of 'The Delhi Rent Control Act, 1958' (Hereinafter 'the DRC Act') against judgement dated 09.04.2013 (Hereinafter 'the impugned judgement') passed by Sh. Manish Yaduvanshi, Ld. SCJ-cum-RC (South), Saket Courts, New Delhi in Petition No. E-93/09/09 titled as 'Smt. Rajwati vs. Sh. Rajesh Kumar @ Raju' under Section 14(1)(a)(d) and (h) of the DRC Act whereby Ld. Trial Court passed an eviction order in respect of one room and a kothri behind shop bearing Pvt. No. 1 in the premises No. D-7, Rewati Kunj, Shri Kalkaji Mandir, New Delhi-110019 (In short 'the tenanted premises') and further, directed the appellant to pay or deposit arrears of rent @ Rs. 1,000/- per month for a period of 3 years immediately preceding the date of filing of the petition with interest @ 8% per annum within one month and further, directed the appellant to continue to pay or deposit the future rent by 15 th day of each succeeding month and further, directed to maintain a separate file to ascertain entitlement of the petitioner to benefit under Section 14(2) of the DRC Act.
6. The facts leading to the filing of the appeal are that the respondent filed an eviction petition under Section 14(1)
(a)(d) and (h) of the DRC Act against the appellant on the averments that she had let out the tenanted premises to the appellant @ Rs. 1,000/- per month excluding electricity charges for 'residential purpose' on 01.09.1993. There was no written agreement between the parties regarding the said tenancy.
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7. The case of the respondent was that the appellant was in arrears of rent @ Rs. 1,000/- per month since 01.07.2002. The appellant neither paid nor tendered arrears of rent within 2 months from the date of service of demand notice dated 27.03.2008. According to the respondent, neither the appellant nor any of his family members was residing in the tenanted premises since February, 2004 and the appellant had shifted to B-Block, Gali No. 6, Roshan Nagar, Faridabad.
8. On being served with the notice of the petition, the appellant appeared before the trial Court on 11.09.2009. Ld. Trial Court granted him 4 weeks time to file written statement vide order dated 11.09.2009. However, the appellant filed written statement alongwith an application under Section 151 of the Code seeking condonation of delay in filing of the written statement on 05.03.2010. In the meanwhile, the respondent filed an application under Order 8 Rule 1 of the Code seeking closure of the right of the appellant to file written statement. Ld. Trial Court, vide order dated 28.07.2010, declined to condone the delay in filing of the written statement and dismissed the application under Section 151 of the Code filed by the appellant and allowed the application under Order 8 Rule 1 of the Code filed by the respondent and consequently, the defence of the appellant was struck off. The respondent filed an application under Order 8 Rule 10 of the Code for pronouncement of judgement against the appellant. The said application was dismissed by Ld. Trial Court vide order dated 04.06.2012.
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10. Feeling aggrieved, the respondent preferred an appeal vide ARCT No. 52/12. However, the respondent had withdrawn the said appeal with liberty to seek review of the said order vide order dated 30.07.2012.
11. The appellant filed an application under Order 47 Rule 1 and Section 114 read with Section 151 of the Code alongwith an application under Section 5 and 14 of 'The Limitation Act, 1963' seeking condonation of delay in filing of review application and review of order dated 04.06.2012.
12. Ld. Trial Court, vide judgement dated 09.04.2013, condoned the delay in filing of review application and allowed the review application, and consequently, passed the impugned order.
13. It may be noted that the appellant neither paid nor deposited arrears of rent in compliance of the impugned judgement and therefore, the appellant was not extended benefit under Section 14(2) of the DRC Act and consequently, an eviction order was passed against the appellant in respect of the tenanted premises vide order dated 22.03.2014.
14. It may be noted that the respondent has already obtained possession of the tenanted premises on 08.05.2014. GROUNDS OF APPEAL:
15. The appellant has challenged the impugned judgement on the grounds, as under:
(i) The impugned judgement is in violation of rules of natural justice;
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(ii) Ld. Trial Court committed an error in not considering that no second option was exercised by the Court while dismissing the application under Order 8 Rule 10 of the Code vide order dated 04.06.2012 as there was dispute regarding the rate of rent between the parties;
(iii) Ld. Trial Court committed an error in passing the impugned judgement solely on the ground that second option was not exercised by the Court vide order dated 04.06.2012;
(iv) The respondent did not place any document regarding her status in respect of the tenanted premises and she was a 'baridar' only having a right to collect the rent from the tenants during period of her bari;
(v) The respondent has not placed any rent receipt or any document to prove rate of rent @ Rs. 1,000/- per month or arrears of rent w.e.f. 01.07.2002;
(vi) There was no arrears of rent and moreover, @ Rs. 1,000/- per month;
(vii) Ld. Civil Judge, in the civil suit for permanent and mandatory injunction vide CS No. 266/2008 titled as 'Rajesh Kumar @ Raju vs. Smt. Rajwati', observed that 'from the perusal of the pleadings, it is clear that there is a dispute regarding the rate of rent. To determine which of the party has stated incorrect facts, appropriate evidence needs to be led';
(viii) Ld. Trial Court has not considered that the appellant is keeping his goods in one room besides the shop although he has shifted to Faridabad;
(ix) Ld. Trial Court committed an error by not recording evidence of the respondent and thereby, it deprived the appellant from an opportunity to cross- examine the respondent; and
(x) The appellant was deprived from his right to file written statement on micro-technical approach adopted by Ld. Trial Court.
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16. I have already heard Mr. Rajesh Ranjan Singh, Advocate for the appellant and Ms. K. Kiran, Advocate for the respondent, and perused trial Court record and written arguments filed by Ld. Counsel for the respondent.
17. Ld. Counsel for the appellant submitted that the impugned judgement was passed in violation of principles of natural justice. He submitted that the appellant could not engage a lawyer due to financial constraints and he had appeared on 11.09.2009 before the trial Court. He submitted that the appellant could engage a lawyer on 28.01.2010 on account of financial crisis and persistent sickness. He submitted that written statement filed by the appellant was not taken on record and thereby, he was deprived from effectively contesting the petition. He submitted that the impugned judgement was passed without affording an opportunity to the appellant to cross-examine the respondent. He submitted that the appellant was a tenant in respect of the Shop No. 1 @ Rs. 600/- per month, Shop No. 3 @ Rs. 500/- per month and one room with kitchen @ Rs. 600/- per month. He submitted that the appellant was regularly making payment of rent of Rs. 1,700/- per month. He submitted that the appellant was running a general store under the name and style of 'M/s. Raju General Store' in the tenanted premises. He submitted that the appellant was using the room with kitchen for residential purpose. However, the appellant shifted from the tenanted premises and started using the said room and kitchen for storing goods since 2004.
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18. Ld. Counsel for the appellant submitted that the respondent sent a false notice dated 27.03.2008 which was duly replied by him. He submitted that the respondent was causing interference in peaceful use and enjoyment of the tenanted premises and therefore, the appellant filed a suit for permanent and mandatory injunction vide CS No. 266/2008 wherein Ld. Civil Judge restrained the respondent from dispossessing the appellant from the tenanted premises vide order dated 07.10.2009. He submitted that in the said suit, Ld. Civil Judge was pleased to observe that there was a dispute regarding rate of rent and in order to determine the said dispute, appropriate evidence was required to be led. He submitted that the respondent concealed material fact that she has no right, title or interest in the tenanted premises. The respondent was a mere 'baridar' having right to collect rent from the tenants as per her turn (bari). He submitted that the respondent has not disclosed turn (bari) of her 'baridari'. He submitted that the respondent has not placed any documentary evidence to prove that rate of rent of the tenanted premises was Rs. 1,000/- per month. He submitted that Ld. Trial Court, vide order dated 04.06.2012, did not exercise second option i.e. an interim order of payment of rent as there was dispute regarding the rate of rent between the parties. He submitted that vide order dated 04.06.2012, the case was fixed for the evidence of the appellant. He submitted that the issue regarding the rate of rent and arrears of rent could not be decided without evidence.
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19. Ld. Counsel for the appellant submitted that Ld. Trial Court should not have pronounced judgement under Order 8 Rule 10 of the Code as the defence of the appellant was already struck off and the Court did not pass any interim order regarding arrears of rent. He submitted that the trial Court has not considered that the case of the respondent was based on assertion and not on any documentary evidence. He submitted that the trial Court committed a grave error in not considering that the appellant, in reply dated 17.04.2008, categorically stated that rate of rent including other charges was Rs. 600/- per month and the appellant was regularly making payment of the said rent. He submitted that Ld. Trial Court disbelieved his case and accepted case of the respondent in the absence of any documentary evidence regarding rate of rent @ Rs. 1,000/- per month and arrears of rent w.e.f. 01.07.2002. He submitted that observation of Ld. Trial Court that rate of rent was Rs. 1,000/- per month is erroneous. He submitted that the tenanted premises was let out for residential-cum-commercial purpose. He submitted that the appellant was using the premises for residential and commercial purpose for storing general goods and the appellant is exclusively using it for commercial purpose since 2004. He submitted that the impugned judgement is based on surmises, assumption and conjunctures. He submitted that Ld. Trial Court deprived the appellant from an opportunity to cross-examine the respondent. He submitted that the impugned judgement deserves to be set-aside.
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20. Ld. Counsel for the respondent submitted that the appellant has not disputed relationship of landlord and tenant. She submitted that the appellant has not even complied judgement dated 09.04.2013. She submitted that the appellant has not even paid or deposited arrears of rent and future rent, in terms of judgement dated 09.04.2013. She submitted that the impugned judgement resulted into an eviction order vide order dated 22.03.2014. She submitted that the respondent has obtained possession of the tenanted premises. She submitted that the appellant was given sufficient opportunity to file written statement. She submitted that the appellant was a 'transporter' and operating 'tourist buses'. She submitted that the appellant had no financial constraint to engage a counsel. She submitted that in any event order dated 28.07.2010 was never challenged and it attained finality. She submitted that there is no legal infirmity in the impugned judgement. She submitted that the appellant had no defence before the trial Court. She submitted that the appellant not only admitted relationship of landlord and tenant, he had also admitted that he was in arrears of rent. She submitted that the appellant was using the tenanted premises without paying rent. She submitted that Ld. Trial Court was cautious of its duty while pronouncing judgement under Order 8 Rule 10 of the Code. She submitted that Ld. Trial Court was convinced that there was no disputed question of fact and passed impugned judgement after due application of judicial mind. She submitted that appeal deserves to be dismissed.
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21. Before delving into rival contentions, it would be appropriate to have a glimpse of the impugned judgement, as under:
"11. In a petition under Section 14(1)(a) of the DRC Act, the petitioner must prove-
(i) That there exists a relationship of landlord and tenant between the parties;
(ii) That tenant is in arrears of rent; and
(iii) That the landlord / owner has served the notice of demand on the respondent for arrears of rent in the manner provided under Section 106 of the Transfer of Property Act, 1882.
12. Under Section 14(1)(d) and (h) of DRC Act, it must be proved by the petitioner that the tenancy premises let out for residential purpose is not being used by the tenant or any member of his family for a period of six months immediately before the date of filing of eviction petition and that the tenant, whether before or after the commencement of the DRC Act, has acquired vacant possession of, or been allotted, a residence respectively.
13. In the instant case, the tenancy is oral and old. The purpose of tenancy is stated to be residential and monthly rental is Rs. 1,000/- per month. The tenant is stated to be in arrears of rent since 01.07.2002. In this regard, he has been served with a notice of demand dated 27.03.2008. It is noted that no rent receipts are placed on record. At the same time, the petitioner has relied on another document i.e. reply of the respondent dated 17.04.2008 to her legal notice dated 27.03.2008. First of all, the legal notice is appropriate in as much as the compliance of Section 106 of the Transfer of Property Act is concerned. Tenancy being oral is a month to month tenancy. In the reply notice, the respondent makes a mention of shop No. 1 and 3 also besides the tenancy premises in present petition. It is a matter of record that the other two shops are the subject matter of a separate RCT No. 1118/16 Rajesh Kumar @ Raju vs Rajwati Page No. 11 of 22 eviction petition between the same parties which is also pending consideration in this Court. Thus, the extent of tenancy premises is an admitted fact. As against the rate of rent of Rs. 1,000/- per month, it is in the reply notice that the tenancy did come into existence in September-November, 1993 however, the rate of rent is stated to be Rs. 600/- per month including all other charges.
It is in the reply notice that arrears have been paid till April, 2008 at the aforesaid rate of rent. No reference to any rent receipt is given in the afore-stated reply notice also. Obviously, the said averment as stated in the reply notice is devoid of sanctity of oath which the present petitioner otherwise provides to the contents of the present eviction petition in the wake of the verification clause and the supporting affidavit to her application under Order 8 Rule 10 read with Section 151 CPC and therefore, the contention that the rate of rent of Rs. 1,000/- per month stands at a greater footing as compared to the denial, without oath. It is worth acceptance. Thus, from the afore-stated facts it would be seen that there is no denial of relationship of landlord and tenant. By own admission in the reply notice, the tenant is in arrears of rent and I have already held that there is a greater sanctity to the petitioner's version which is supported with an affidavit and therefore, the arrears are with effect from 01.07.2002 at the rate of Rs. 1,000/- per month. I have pointed out that the service of legal notice can never be disputed in view of the reply notice dated 17.04.2008. In the circumstances even if the contents of the petition are deemed to be correct, the same also stand supplemented in the form of document relied upon.
14. It is also to be seen from the reply notice that the factum of the respondent having shifted his residence at Roshan Nagar, Agwari Pur, Faridabad in February, 2004 with his family is also not disputed. It is categorically stated that the respondent shifted from tenanted premises to his current residence because of education of his child. In the given circumstances, there is no impediment in passing of eviction order.
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15. In the result, the present order is directed to be treated as a judgement on the eviction petition under Section 14(1)(a)(d) and (h) of the DRC Act. An eviction order is, therefore, passed in regard to the premises i.e. one room and a kothri behind shop bearing Pvt. No. 1 in premises No. D-7, Rewati Kunj, Shri Kalkaji Mandir, New Delhi-110019 as shown in red colour in the site plan attached.
16. The respondent is also directed to pay to the petitioner or deposit in the Court the legally recoverable dues i.e. arrears of rent at the rate of Rs. 1,000/- per month for three years immediately preceding the date of filing of the suit till the date of order with interest at the rate of 08% per annum within a period of one month. The respondent is further directed to continue to pay to the petitioner or deposit in the Court the future rent by 15 th day of each succeeding month.
17. A separate file be maintained to ascertain the entitlement of the respondent to the benefit of Section 14(2) of the DRC Act. Nazir will report on the separate file after two months regarding compliance of the order of the Court by the respondent. The separate file be put up before this Court on 02.07.2013."
22. Before delving into legality and validity of the impugned judgement, it would be appropriate to have an overview of law governing exercise of power under Order 8 Rule 10 of the Code.
23. In Union of India vs. Ram Prakash Juneja, AIR 2007 Delhi 164, Hon'ble Delhi High Court held, as under:
"4.....The judgement pronounced under Order 8 Rule 10 CPC should indicate that the Court has applied its mind to merits of the case before decreeing the case. The said judgement must satisfy the requirements of Section 2(9) CPC and the Court should go into the case and pronounced its judgement upon the facts, so far as they were before it. A mere statement that the suit of the plaintiff is decreed under Order 8 Rule 10 CPC cannot be sustained."
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24. In Balraj Taneja vs. Sunil Madan, AIR 1999 SC 3381, Hon'ble Supreme Court of India held that:
"29. As pointed out earlier, the Court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor the Court should proceed to pass judgement blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, specially where a written statement has not been filed by the defendant, the Court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgement against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgement could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the Court can conveniently pass a judgement against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgement without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression "the Court, may, in its discretion, require any such fact to be proved" used in sub-rule (2) of Rule 5 of the Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8."
25. In Relaxo Rubber Limited vs. M/s. Selection Footwear, AIR 2000 Delhi 60, Hon'ble High Court of Delhi held as under:
"3. Keeping in perspective the fact that at least four opportunities for filing written statement have not been availed of by the defendants I feel this is a fit case for invoking the provisions of Order 8 Rule 10.
RCT No. 1118/16 Rajesh Kumar @ Raju vs Rajwati Page No. 14 of 22 However, since no defence has come forward, it would be, to my mind, the duty of the Court to consider the correctness of the plaintiffs case. For this reason the plaint as well as documents filed alongwith it were perused and arguments were heard on behalf of the plaintiffs."
26. In Syed Ismail vs. Smt. Shamshia Begum, AIR 2000 Karnataka 234, Hon'ble High Court of Karnataka held as under:
"3. The impugned order does not disclose the nature of pleading placed by the plaintiff and whether there is prima facie material to grant a decree in his favour. A judgement in favour of the plaintiff is not automatic.
The Court has to consider the case of the plaintiff and grant a decree in his favour. The learned trial Judge has not referred to the pleadings of the plaintiff and the documents produced by him to substantiate even a prima facie case for grant of a decree in his favour. Therefore, the judgement and decree in favour of the plaintiff is not automatic on failure of the opposite party to put his defence. The Court can grant a judgement in favour of the party only upon consideration of the case of the plaintiff including appreciation of pleadings and evidence."
27. The principles emerging from the precedents are that exercise of power under Order 8 Rule 10 of the Code for pronouncement of judgement is not mechanical. This is an exercise of judicial discretion. The Court must consider the pleadings and the documents including any admission and should pronounce the judgement if the case does not involve disputed questions of facts. Such exercise must be informed by reason, application of judicial mind and consideration of the pleadings of the parties.
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28. The point for consideration before this Court is whether Ld. Trial Court, in the facts and circumstances of the case, pronounced judgement under Order 8 Rule 10 of the Code in accordance with law.
29. On 17.02.2009, the respondent filed petition under Section 14(1)(a)(d) and (h) of the DRC Act. Ld. Trial Court issued notice of the petition to the respondent on PF / RC / Speed Post / Approved Courier returnable for 16.04.2009. However, notices were not received back. The appellant was again directed to be served vide order dated 16.04.2009 returnable for 11.09.2009.
30. The appellant appeared on 11.09.2009. He was granted 4 weeks time for filing of written statement. However, he did not file written statement. He did not file written statement on 17.12.2009 and 28.01.2010. He filed written statement alongwith an application under Section 151 of the Code seeking condonation of delay in filing of written statement on 05.03.2010. It is evident that the appellant had availed as many as 3 opportunities extending for a period of 6 months from the date of his appearance before the trial Court. The trial Court declined to condone the delay in filing of written statement and struck off the defence of the appellant. The trial Court had not committed any grave illegality in declining condonation of delay in filing of written statement. Moreover, order dated 28.07.2010 whereby the trial Court declined to condone the delay in filing of written statement and struck off the defence of the appellant RCT No. 1118/16 Rajesh Kumar @ Raju vs Rajwati Page No. 16 of 22 was never challenged. The said order attained finality. In the considered opinion of this Court, there is no violation of rules of natural justice. A Court can only grant reasonable opportunity to a litigant to contest the lis. No litigant can claim a right to join the proceeding at his will.
31. Though the appellant has challenged the status of the respondent by referring her as 'baridar' having the right to collect rent only on her 'bari' (turn), it would be appropriate to refer reply notice dated 17.04.2008 sent by the appellant wherein he categorically admitted the respondent as 'landlady' in respect of the tenanted premises.
32. Relevant part of reply notice dated 17.04.2008 is as under:
"1. That my client was inducted as tenant of Shop No. 1 and 3 and one room behind the Shop No. 1 with kitchen in the premises by your clientess on September-November, 1993. The rate of rent at present of Shop No. 1 is Rs. 600/-, Shop No. 3 is Rs. 500/- and one room with kitchen is Rs. 600/- per month including all other charges. Therefore, my client used to pay total amount of Rs. 1700/- per month including all the charges for the tenanted premises mentioned above. It is also relevant to mention here that my client used to pay the rent month by month between first day to seventh day of each proceeding month in cash. Having good relation with your clientess and also knowing the facts that this tenancy agreement is on the basis of oral agreement, neither your clientess issued the rent receipt nor has my client demanded the same. My client surprised to know the fact stated in the notice (specially the rate of rent).
RCT No. 1118/16 Rajesh Kumar @ Raju vs Rajwati Page No. 17 of 22 That your clientess has not stated the true fact to you and therefore, relying on her statement which is evident from the fact stated in the notice, you have given this notice. This fact is also not stated to you that earlier my client was living in a room shown behind the Shop No. 1 and also keeping the goods of the General Store operated from Shop No. 1 and 3, therefore, the entire tenanted premises were let out by your clientess for the commercial purpose. It is also not intimated to you that your clientess sometime deliberately closed the main gate through which my client can enter into the room located behind the Shop No. 1 of the premises. You may please direct her to handover the key of main gate so that my client can use the room as and when he desires otherwise allow my client to make a passage from the shop to the kitchen. REPLY ON MERIT:
1.....
2.....
3.....
4. That the contents of para 4 are wrong and denied emphatically in view of reply of above paras. It is also denied that the termination of the tenancy on the ground of non-payment of the rent or arrear of rent, my client has already paid the rent till April, 2008. My client has paid the rent for the month of April, 2008 on 07.04.2008 @ Rs. 1700/- to your clientess."
33. In the civil suit for permanent and mandatory injunction vide CS No. 266/2008 titled as 'Rajesh Kumar @ Raju vs. Rajwati' filed by the appellant against the respondent, the appellant categorically admitted the respondent as 'landlady' of the tenanted premises, as under:
"1. That the plaintiff is tenant of Shop No. 1 and 3 and one room behind the Shop No. 1 with kitchen at D-7, Rewati Kunj, Shri Kalkaji Mandir, New Delhi from September, 1993. The rate of rent at present of Shop No. 1 is Rs. 600/-, Shop No. 3 is Rs. 500/- and one room with kitchen is Rs. 600/- per month including all other charges. The plaintiff used to pay total rent amount Rs. 1700/- per month including all the charges to the defendant.
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2. That the defendant is landlady of the tenanted premises as well as in occupation and possession of entire premises known as D-7, Rewati Kunj, Shri Kalkaji Mandir, New Delhi. The defendant used to live in the said premises alongwith her family.
3. That the plaintiff was inducted as tenant by the defendant in September, 1993 with respect to the tenanted premises knows as Shop No. 1 and 3 alongwith one room and kitchen situated behind the Shop No. 1 part of Property No. D-7, Rewati Kunj, Shri Kalkaji Mandir, New Delhi.
4. That the earlier the rent of the entire premises was Rs. 1400/- which is increased time to time and presently is Rs. 1700/-. The tenanted premises was let out by the defendant on the oral terms and conditions."
34. The appellant has not challenged service of notice dated 27.03.2008 whereby the respondent demanded arrears of rent and terminated tenancy of the appellant. The appellant replied the said notice vide reply dated 17.04.2008.
35. The appellant raised issue regarding the rate of rent of the tenanted premises as Rs. 600/- per month instead of Rs. 1,000/- per month and further that there was no arrears of rent. The respondent has categorically stated, in the plaint, that the rate of rent of the tenanted premises was Rs. 1,000/- per month. There is no challenge to the said averment. Admittedly, there was no written agreement regarding the rate of rent between the parties. The tenancy was oral. Admittedly, the appellant never demanded any rent receipt pertaining to payment of the rent. In that case, the appellant has never tendered rent via money order or deposited under Section 27 of the DRC Act.
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36. Mere argument that there was no arrears of rent or rate of rent was Rs. 600/-, in the absence of any rent receipt or deposit, is not sufficient to put the case to trial. Moreover, it may be noted that the appellant has even not paid monthly rent to the respondent during the proceedings in the eviction case. The appellant has even not complied direction of the trial Court regarding payment of arrears of rent and future rent vide impugned judgement. The appellant was not extended benefit of Section 14(2) of the DRC Act as he failed to pay or deposit arrears of rent in terms of the impugned judgement.
37. It may be relevant to take note of the fact that the appellant, in the reply notice dated 17.04.2008 and suit for permanent and mandatory injunction vide CS No. 266/08 filed by him against the respondent, mentioned different rate of rent of Shop No. 1, Shop No. 3 and room with kitchen. It would show that the tenanted premises comprising room with kitchen was a separate tenancy. The appellant, in the reply notice dated 17.04.2008, categorically stated that he alongwith his family was residing in the tenanted premises. In the said reply, he stated that the entire premises including the tenanted premises was given for commercial purpose. However, in the memorandum of appeal, he stated that the tenanted premises was let out for commercial-cum-residential purpose. In the reply notice dated 17.04.2008, the appellant has categorically stated that in February, 2004, he shifted to Roshan Nagar, Agwan Pur, Faridabad for best education of his children.
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38. In CS No. 266/08, the appellant has stated, in para No. 5 of the plaint, that he has shifted to Roshan Nagar, Agwan Pur, Faridabad in February, 2004 for education of his children. It is, therefore, proved that the tenanted premises was left out for residential purpose and the appellant is not residing in the tenanted premises since February, 2004 and he has shifted to other residential premises. Therefore, the eviction petition was rightly allowed on the ground of Section 14(1)(d) and (h) of the DRC Act.
39. The trial Court passed eviction order in respect of the tenanted premises vide order dated 22.03.2014. The said eviction order has been executed and the respondent has been put into possession on 08.05.2014. The appellant is a chronic defaulter in the matter of payment of rent to the respondent. He enjoyed the tenanted premises for around 12 years and in any eventuality, for 6 years w.e.f. 27.03.2008 to 08.05.2014 without paying rent. This Court does not find any infirmity, illegality or perversity in the impugned judgement. Accordingly, the appeal filed under Section 38 of 'The Delhi Rent Control Act, 1958' against judgement dated 09.04.2013 by the trial Court is dismissed. TCR be sent back alongwith a copy of the present order. Appeal file be consigned to record room.
Announced in the open Court Sh. Sanjay Sharma-II Dated: 28th July, 2020 Additional District Judge-05 (SE) Saket Courts, New Delhi RCT No. 1118/16 Rajesh Kumar @ Raju vs Rajwati Page No. 21 of 22 RCT No. 1118/16 (Old No. 11/13) 28.07.2020 In view of the outbreak of COVID19, the Hon'ble Administrative and General Supervision Committee of Hon'ble Delhi High Court vide office order dated 23.03.2020, 25.03.2020, 15.04.2020, 02.05.2020, 16.05.2020, 21.05.2020 and 29.05.2020, 13.06.2020, 29.06.2020 and 13.07.2020, the functioning of the District Courts remained suspended. In view of office order dated 15.07.2020, the case is taken up for order.
Vide separate order, the appeal under Section 38 of 'The Delhi Rent Control Act, 1958' against judgement dated 09.04.2013 by the trial Court is dismissed. TCR be sent back alongwith a copy of the order. Appeal file be consigned to record room.
Sanjay SharmaII
ADJ05 (SE)/Saket Courts
NK New Delhi/28.07.2020
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