Delhi District Court
Sh.Sameer Wason vs Smt.Sunitra Devi & Others Rcr 1981 (2) 95 on 12 April, 2007
1 IN THE COURT OF SH.B.S.CHUMBAK; ADDL.RENT CONTROLLER:DELHI. E-304/06 1.Sh.Sameer Wason s/o Sh.C.M.Wason 2.Sh.C.M.Wason s/o late Sh.C.R.Wason both r/o 27/56, Old.Rajinder Nagar, New Delhi. VS. Sh.Rajinder Kumar Lamba s/o late Sh.G.C.Lamba r/o 13-A/81, WEA Karol Bagh, New Delhi. And also at Shop no.53A, Old Rajinder Nagar Market, New Delhi. Petition under sec.14(1)(a) of Delhi Rent Control Act, Delhi. 2 Date of institution:25.9.01 Date of judgment: 12.4.07 JUDGMENT
1 The petitioner has filed an eviction petition under clause (a) sub section (1) of section 14 of Delhi Rent Control Act against the respondent (hereinafter referred to as the Act) for seeking eviction of the tenanted premises i.e.one shop bearing no.53A, portion of the property bearing no.53, Old Rajinder Nagar market, New Delhi as shown in red colour in the site plan attached.
2 Brief facts arising out of this petition are that Sh.Sameer Wason son of Sh.C.M.Wason and Sh.C.M.Wason son of late Sh.C.R.Wason are the owners/landlord (hereinafter referred to as the petitioners) and Sh.Rajinder Kumar Lamba son of late Sh.G.C.Lamba is the tenant (hereinafter referred to as the respondent). The shop in question stated above was let out to the respondent by virtue of an agreement dt.2.3.71 on a rent of Rs.161/- per month, which was enhanced to Rs.200/- per month.
33 It is further averred that the respondent is chronic defaulter in payment of the rent and earlier an eviction petition bearing no.85/2000 under section 14(1)(a) of the Delhi Rent Control Act was also filed against the respondent in the previously instituted petition and order under section 15(1) of the Delhi Rent Control Act dt.14.10.99 was passed by the then Ld.ARC directing the respondent to make the payment of rent @ Rs.1165/- per month w.e.f.Jan.1996 upto September 1996 and @ Rs.181.50 w.e.f. Oct, 1996 upto the preceeding month within a month and finally an order under section 14(1)(a) of the Delhi Rent Control Act was passed in favour of the petitioner, wherein benefit of section 14(2) of the Delhi Rent Control Act was granted to the respondent vide order dt.22.11.2000. It has become mandatory on the part of the respondent to pay the rent month by month, but inspite of repeated requests and demands the respondent again failed to pay the arrears of rent as such the petitioner compelled to serve a legal notice dt.6.6.2001 through registered AD and UPC. Despite of service of legal notice the respondent has neither paid nor tendered the arrears of rent, which has become due w.e.f.November 2000 and hence the present petition is filed. It is further averred that the respondent has also 4 become liable to pay interest @ 18% per annum on the amount of rent, which has become due due to his non payment of rent in time.
4 Notice of the petition was served upon the respondent, who put his appearance and filed the written statement controverting therein all the allegations as alleged in the petition and also taken many preliminary objection such as the petitioner have not come before this court with clean hands and are in habit of filing false and fabricated petition against the respondent with the sole aim to harass and to got the tenanted premises evicted. It is further submitted that the petition is filed without any cause of action and liable to be dismissed under order 7 rule 11 CPC. It is denied that the respondent committed default in making payment of rent, however the respondent time to time sent the rent regularly to the petitioner and also made numerous request in person for acceptance of the rent many times, but the petitioner intentionally or delebrately refused to accept the rent and also extending threat for harassing to get the tenanted premises evicted. The petitioner also refused to accept the money order, which was sent by the respondent. Respondent had sent the bank draft to the counsel of the 5 petitioner, which was received by him and request for dismissal of the present petition on the sole ground. It is also averred by the respondent that he never defaulted in payment of the rent. The rent was regularly tendered to the petitioner in person, but he himself refused to accept the same and by him said act he want to get the benefit of his own wrongs and also to take advantage of the technicalities created by him. Due to the said conduct of the petitioner the respondent was compelled to send the same by money order dt.16.1.01 for Rs.563/- being the rent from the period November 2000 to January 2001. Therafter finding no other alternative the rent was deposited in the court of Sh.V.K.Bansal the then Ld.ARC vide DR no.71/01 and notice of the same was issued to the petitioner. Respondent also admitted that the notice dt.6.6.01 was received by him and he also sent the reply dt.2.8.01 to the said notice and he also sent a pay order amounting to Rs.1200/-along with the said notice. Pay order was issued by Syndicate Bank, Rajinder Nagar Branch in favour of the petitioner bearing no. 795140 dt.2.8.01 in lieu of the rent for the period from February 2001 to July 2001 @ Rs.200/-per month and in view of the averments requested for dismissal of the present eviction petition.
65 Petitioner filed the replication controverting therein all the allegations as alleged in the written statement and reaffirm the contents of the petition as true and correct and thereafter case was fixed for arguments under section 15(1) of the Delhi Rent Control Act.
6 After hearing arguments on behalf of Ld.counsel for both the parties and order under sec.15(1) of the DRC Act was passed by the then Ld.ARC vide order dt.26.11.01 thereby directing the respondent to pay or deposit in the court the entire arrears of rent @ Rs.200/- per month w.e.f. 1.8.01 up till date within one month from the date of passing of this order and is further directed to pay or deposit the future rent at the same rate month by month 15th day of each succeeding month. Thereafter case was fixed for petitioner evidence.
7 Sh.C.M.Wason son of late Sh.C.R.Wason appeared as PW1 and stated all the facts in his evidence, which were stated by him in his petition and also deposed that he and his son are the landlord/owner of the suit premises i.e.53-A, Old Rajinder Nagar Market, New Delhi and the respondent is tenant under him in respect of one 7 shop bearing private no.53A, Old Rajinder Nagar, New Delhi. He also deposed that he got the site plan prepared from S.Kumar. Copy of the site plan is Ex.PW1/1. He also instituted a petition on the ground of non payment of rent. Said petition was decided in his favour, wherein benefit of section 14(2) of the Delhi Rent Control Act was granted to the respondent. The copy of order is Ex.PW1/2. He also deposed that he sent a legal notice dt.6.6.01 through UPC and registered post through his counsel. Same is Ex.PW1/4. Postal receipt is Ex.PW1/5 and PW1/6. He also identified the signature of respondent on AD card Ex.PW1/7 and PW1/8. The certificate of UPC is Ex.PW1/9. He also deposed that respondent sent a reply Ex.PW1/10 and after receiving the reply the petitioner again sent the rejoinder Ex.PW1/11 through postal receipt Ex.PW1/12 and PW1/13 and UPC Ex.PW1/14. He also identified the signature of respondent on the AD card Ex.PW1/15 and PW1/16. He further deposed that despite of service of legal notice the respondent neither paid nor tendered the arrears of rent and has also become liable to pay the interest @ 18% per annum. He also deposed that he received the notice from the court of Sh.V.K.Bansal, the then Ld.ARC in a DR petition no.71/01 in the September 8 2001. The summons are Ex.PW1/1/17. During his cross examination he reiterated his testimony as submitted by him during examination in chief and also admitted that the respondent deposited the rent i.e.Rs.563/-in the court of Sh.V.K.Bansal, the then Ld.ARC and he also admitted that it might be possible that the said rent was from November 2000 to January 2001. The said rent was received by him in the month of September 2001. He denied that he ever received the bank draft/pay order bearing no.795140 dt.2.8.01 drawn on Syndicate Bank, Rajinder Nagar Branch, New Delhi. Thereafter on the basis of his statement the petitioner evidence was closed and case was fixed for respondent evidence.
8 The respondent himself appeared as RW1 and filed his affidavit taking therein all the pleas which were taken by him in the written statement and submitted that the petitioner with a view to create a ground of eviction has stopped accepting the rent as and when it was tendered to him in person. He also sent the rent by money order, but the petitioner refused to accept the same. Thereafter the rent was sent by way of bank draft to the counsel for petitioner and thereby the petitioner is trying to take the advantage of his wrongs. He further 9 deposed that in the reply dt.5.9.01 it was again suggested to the petitioner that the controversy regarding the payment of rent could be avoided only if the petitioner petitioner furnishes his account no., but the petitioner failed to do so and the present petition is filed with the sole aim to create a new ground for seeking eviction. He also deposed that he sent a reply to the notice dt.6.6.01 sent by Sh.P.K.Rawal, Adv.on behalf of the petition through UPC. Carbon copy of the reply dt.2.8.01 is Ex.RW1/1. UPC is Ex.RW1/2. Reply dt.5.9.01 is Ex.RW1/3. Postal receipt is Ex.RW1/4. AD card is Ex.RW1/5. UPC dt.5.9.01 is Ex.RW1/6. During his cross examination he reiterated his testimony as submitted by him during his examination in chief and also submitted that the address of the petitioner might be 27/56, old Rajinder Nagar, Delhi and further stated that he does not remember address of the petitioner, but he only knew that the petitioner has been staying at Block 27. He also admitted that he can not produce any document to show that he can not produce any document to show that he ever paid the rent to the petitioner by means of pay order. He also admitted that no rent was deposited in the court after the receipt of the notice dt.6.6.01, 14.8.01 and 5.9.01 within two months. He also admitted that the mode of 10 payment was not by pay order.
9 Sh.M.K.Jain clerk from the Syndicate Bank, Old Rajinder Nagar Branch, New Delhi appeared as RW2 and produced the original record with regard to pay order slip dt.2.8.01 in the name of petitioner. The certified copy of the same is Ex.RW2/2. During his cross examination he admitted that the amount of the pay order has not been withdrawn by any one. He also admitted that the validity period of bank draft is only six months from the date of issue i.e.from 2.8.01. Thereafter respondent evidence was closed and case was fixed for final arguments.
10 I have heard the arguments on behalf of Ld.counsel for both the parties. Ld.counsel for respondent submitted that before seeking eviction on the ground of non payment of rent it is to be proved by the petitioner that they are the owners/landlord and the respondent is the tenant under him. This fact is also denied by the respondent. However relationship is admitted. The second requisite condition is that the respondent committed default in making payment of rent and despite of service of legal notice the respondent failed to make the payment of rent within stipulated period of 11 two months and in the present case the petitioner himself refused to accept the rent in person, therefore the respondent compelled to send the rent through money order as well as through bank draft. The respondent placed sufficient evidence on record that he obtained the pay order bearing no.795140 dt.2.8.01 amounting to Rs.1200/-issued by Syndicate Bank, Rajinder Nagar Branch, New Delhi in favour of the petitioner in lieu of rent from February 2001 to July 2001 @ Rs.200/-per month and said pay order was duly received with the reply dt.2.8.01 by the counsel for petitioner and the copy of the reply dt.2.8.01 which is Ex.RW1/1 is also proved and the factum of receiving the banker cheque in favour of the petitioner is further proved by RW2 M.K.Jain, clerk who appeared from the Syndicate Bank, Old Rajinder Nagar Branch, New Delhi, which clearly goes to show that the respondent has tendered the rent through pay order within the stipulated period of two months of the legal notice admitted served upon the respondent. Sufficient evidence is also produced by the respondent that after refusal to receive the rent by the petitioner the respondent compelled to send the rent through money order dt.16.1.01 i.e.Rs.563/-in lieu of the rent for the period from Nov.2000 to January 2001 @ rs.181.50 for the month of 12 November and December and Rs.200/-for the month of Jan.2001/-. When the petition refused to accept the money order then the respondent compelled to file the eviction petition bearing no.71/01 under section 27 of the DRC Act and this fact is duly admitted by the petitioner, which clearly goes to show that the respondent has committed default in making payment of rent and also tendered the rent through pay order, which the petitioner failed to encash and in such circumstances Ld.counsel for respondent submitted that the second essential requirement required to be proved by the petitioner for seeking eviction under sec.14(1) of Delhi Rent Control Act is not proved and requested for dismissal of the present petition. Ld.counsel for respondent also placed his reliance on a decided cases cited as Budh Prakash Sethi Vs. Smt.Sunitra Devi & others RCR 1981 (2) 95 and S.L.Kapur Vs. Dr.Mrs.P.D.Lal RCR 1975 page 394.
11 On the other hand Ld.counsel for petitioner submitted that the factum of relationship of landlord and tenant between the petitioner and respondent is admitted by the respondent. The factum of service of legal notice is also admitted. The factum of passing an eviction order in an earlier instituted eviction petition vide order 13 dt.22.1.2000 is also not denied. It is also admitted that the benefit of section 14(2) of Delhi Rent Control Act has already been granted to the respondent. The major plea which has been taken by the respondent is only that he has tendered the rent after service of legal notice Ex.PW1/1 within stipulated period of two months by way of pay order dt.2.8.01. The said pay order allegedly was sent with the reply to the notice, but infact no pay order was annexed with the reply to the notice Ex.PW1/1 and this fact was also admitted to the respondent through sending rejoinder Ex.PW1/3. This fact is also further corroborated by RW2 appeared from the Branch Syndicate Bank, werein it is clearly stated that pay order was never encashed by any one, which clearly goes to show that it was not valid tendered payment of rent within stipulated period of legal notice Ex.PW1/1. Ld.counsel for the petitioner also placed following reliance on the following decided cases cited as:-
a) Phalwant Singh Vs. Jai Narayan RLR 1980, 538, wherein it is observed as under:
"Payment by cheque or demand unless is
agreed mode of payment (express or
implied is not a valid tender and if it is
refused the tenant can not make a
14
grievance of it. It is further held that when rent is sent by post but not delivered, a mischievous landlord may deny that money order was ever offered to him".
b) Gopi Chand Gupta (dead) by Lrs. Vs.Jain Plastic Industry 2002 5 SC 274, wherein it is observed as under:
"Mere posting of a cheque without there being any material to show that the said posting of the cheque was with an intention of clearing the arrears of rent, would suffice to hold that the tenant had fulfilled his legal obligation of tendering the rent. It is further observed that there was no rent agreement between the parties nor was there any practice to tender the rent by way of cheque nor at any time earlier the rent was sent by post. The tenant had never earlier tendered the rent by way of cheque, on the contrary, the rent was either being paid in cash or by way of pay order or demand draft. The High court was in error in merely accepting the fact that the tenant had posted the cheque towards the arrears of rent and holding such issuance of a cheque by itself would amount to a legal tender."
c) Hazari Lal Vs.Birla Cotton Spg.& Wvg.Mills, 1976, RLR 402, wherein it is held as under:-
15"if payment of rent by cheque is not the agreed mode, then sending a cheque towards arrears of rent can not be said to be a valid tender or payment of rent arrears within the meaning of Section 14(1)(a) of the Delhi Rent Control Act".
d) M/s.H.M.Doyal & Co.and others Vs.Ram Nath Chitkara and others, AIR 1986 Delhi 101, wherein it is held as under:-
"Section 14(1)(a) requires payment or tender of arrears of rent after receipt of notice of demand by tenant but before the expiry of two months. This is a salutary provisions. If rent has been paid prior to the notice of demand, the tenant would not be required to pay the same again but if he has not paid, he is bound to pay or tender the rent due according to him after notice of demand to seek protection from eviction. In view of Section 14(1)(a) of the Delhi Rent Control Act, it is not correct to say that the amount of rent would be in arrears only if the rent remains unpaid on account of any default on the part of the tenant. If a tenant tenders rent after receipt of notice of demand within two months and the landlord refuses to accept, then only it can be said that the landlord was at fault and he would not be entitled to an order 16 of eviction on ground of non payment of rent. Where the cheque covering arrears of rent sent by the tenant was not encashed by the landlord and was returned to the tenant and no tender or deposit of rent was made wikthin the meaning of Section 26 and 27 of the DRC Act, the mere tender of cheque would not amount to payment of rent or there was no arrears of rent. Therefore, when no payment or tender of arrears of rent was made before the expiry of two months from the date of receipt of the notice of demand as required under section 14(1)(a) of the DRC Act. The tenant would be liable to eviction for non payment of arrears under section 14(1)(a) of DRC Act".
12 In view of the observatings made by their lordships on the aforesaid decided cases upon which Ld.counsel for both the parties have placed their reliance, I carefully perused and analysed the evidence adduced by both the parties, wherein the respondent in his cross examination clearly admitted that no rent was deposited in the court after the receipt of notice dt.6.6.01, 14.8.01 and 5.9.01 within two months. I only took the plea that he sent the pay order dt.2.8.01 amounting to Rs.1200/- which is proved that said pay order was not encashed by any one. The factum of not receiving the pay order was already 17 communicated to the respondent through rejoinder Ex.PW1/3, which clearly goes to show that the rent was neither tendered nor paid within two months of the service of legal notice and this fact is duly admitted by the respondent in his cross examination. The respondent also failed to place on record that after he came to know that the pay order was not encashed by the petitioner. He has never taken steps to deposit the rent in the court as provided under section 26 and 27 of DRC Act. In view of the evidence adducted by both the parties and also after taking into considerations, observations made by their Lordships in the aforesaid decided cases, I am of the considered view that the petitioners succeeded in proving their case for seeking eviction on the ground of non payment of rent and also on the ground of second default committed by the respondent. The benefit of section 14(2) of DRC Act has already been granted to the respondent, therefore he is not entitled to be given in the benefit again under the provision of Section 14(2) of Delhi Rent Control Act. Accordingly eviction order is being passed against the respondent in favour of the respondent directing the respondent to hand over the vacant possession i.e.one shop bearing no.53A, portion of the property bearing no.53, Old Rajinder Nagar market, 18 New Delhi as shown in red colour to the petitioner. The petition is disposed off accordingly. No order as to cost. File be consigned to R/R. (B.S.CHUMBAK) ADDL.RENT CONTROLLER:DELHI Announced in open court on 12.4.2007 19 16.4.07 Pr.none.
Vide my separate judgment an eviction order is being passed against the respondent in favour of the respondent directing the respondent to hand over the vacant possession i.e.one shop bearing no.53A, portion of the property bearing no.53, Old Rajinder Nagar market, New Delhi as shown in red colour to the petitioner. The petition is disposed off accordingly. No order as to cost. File be consigned to R/R. (B.S.CHUMBAK) ADDL.RENT CONTROLLER:DELHI