Delhi District Court
Sh. Hari Chand Grover (Now Deceased) vs Sh. Girdhari Lal Sachdeva (Now ... on 26 September, 2019
IN THE COURT OF SH. AJAY NAGAR,
ADDITIONAL RENT CONTROLLER (WEST), TIS HAZARI
COURTS, DELHI.
ARC No: 25513/16
Sh. Hari Chand Grover (Now deceased)
Represented by Smt. Shaifali Chowdhary
Grand D/o Late Sh. Hari Chand Grover
W/o Sh. Rohit Anand,
R/o A-6, Flat No. 36,
Triveni Apartments,
Paschim Vihar,
New Delhi-110063. ....Petitioner
VERSUS
1. Sh. Girdhari Lal Sachdeva (Now deceased)
Through L.Rs
B-3/346, Paschim Vihar,
New Delhi.
(a). Sh. Rajiv Sachdeva
S/o Sh. Nand Kishore Sachdeva
Address: B-3/346, Paschim Vihar,
New Delhi-110063.
(b). Ms. Rachna Sahani
D/o Sh. Nand Kishore Sachdeva,
W/o Sh. Rajiv Sahani,
Address: Block 10/11A,
Moti Nagar, New Delhi-110015.
Both above L.Rs are son and daughter
of Late Sh. Nand Kishore (son now deceased)
S/o Late Sh. Girdhari Lal
R/o B-3/346, Paschim Vihar,
New Delhi-110063.
(a). Sh. Mohinder Lal (Son)
S/o Late Sh. Girdhari Lal
R/o C-217, Vikas Puri,
New Delhi.
ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 1 / 30
(b). Smt. Sudesh Chawla (Daughter now deceased)
W/o Sh. B.L. Chawla,
R/o 2A-59, Ramesh Nagar,
New Delhi.
(c). Smt. Kamal Nagpal (Daughter)
W/o Sh. Surjeet Nagpal,
R/o B-124, Mansarover Garden,
New Delhi.
(d). Smt. Kanta Bhatia (Daughter)
W/o Late Sh. Naresh Bhatia,
R/o H. No. 1092, Sector-42B,
Chandigarh, Haryana.
2. Sh. Surjeet Nagpal (Now deceased)
Through L.Rs Smt. Kamal Nagpal (Widow of
Sh. Surjeet Nagpal) & Ors.
Smt. Kamal Nagpal is already respondent as (d.)
of deceased respondent no. 1.
(a). Sh. Manish Nagpal (Son)
R/o B-124, Mansarover Garden,
New Delhi-110015.
(b). Ms. Shalini (Daughter)
W/o Sh. Rajiv Taneja,
C-152, Double Storey,
First Floor, Ramesh Nagar,
New Delhi-110015.
(c). Ms. Aparna Sawhni (Daughter)
W/o Sh. Namit Sawhni,
E-27, Saraswati Garden,
New Delhi-110015.
3. Sh. Naveen Kumar Grover
4. Sh. Praveen Kumar Grover
Both sons of late Sh. Hari Chand Grover
Both R/o F-212, Mansarover Garden,
New Delhi-110015.
ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 2 / 30
5. Dr. Shivani
Grand D/o Late Hari Chand Grover
Flat No. 36, Triveni Apartment,
A-6, Paschim Vihar,
New Delhi-110063.
.... Respondent
Date of Filing : 30.07.2003
Date of Judgment : 26.09.2019
JUDGMENT
1. Brief facts of the present case are that on 30.07.2003, the petitioner filed a petition Under Section 14 (1) (a) & (b) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act') praying to this court to pass an order for eviction in favour of the petitioner and against the respondent in respect of one big front room being used for tent shop now comprising area of 18X10 on the ground floor in the premises bearing No. F-212, Mansarover Garden, New Delhi, as shown red in the site plan attached with the petition (hereinafter referred to as "Tenanted Premises").
2. The case of the petitioner is that the tenanted premises was let out for residential purposes to the respondent no. 1 and respondent no. 1 started using it for commercial purposes and thereafter sub-let, assigned and parted with the possession of the room/tenanted premises to respondent no. 2 Sh. Surjeet Nagpal.
It is further averred by the petitioner that the rent is due to be paid by respondent no. 1 w.e.f. 01.08.2000 upto date at a monthly rent of Rs. 1,000/- per month besides electricity ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 3 / 30 charges. That the tenant Sh. Girdhari Lal Sachdeva/respondent no. 1 has neither paid nor tendered the whole and legally recoverable arrears of rent to the petitioner nor deposited the same in the court even despite legal notice of demand dated 16.05.2003 duly served upon him. That instead respondent no. 2 Sh. Surjeet Nagpal sent a pay order for Rs. 1200/- which has not been accepted by the petitioner as the respondent no. 2 is neither the tenant nor the rate of rent is Rs. 200/- nor Rs. 1200/- is the arrears of rent. That the petitioner has sent back Rs. 1200/- to the respondent no. 2.
It is also averred by the petitioner that the respondent no. 1 has sub-let, assigned and parted with the possession of the front room/tenanted premises in favour of respondent No. 2 without the written consent, knowledge and permission of the petitioner. That the legal demand notice dated 16.05.2003 was given to the respondent No. 1 which has duly been served on the respondent no. 1 by UPC and he refused to accept the notice by other process. That Notice was served upon respondent No. 2 by speed post, regd. AD as well as by U.P.C. and respondent No. 2 gave reply also.
Lastly, it is prayed by the petitioner that an eviction order may be passed in favour of the petitioner and against the respondent.
3. On the other hand, Written Statement was filed by the respondent No. 1 Sh. Girdhari Lal Sachdeva in response to the petition filed by the petitioner U/S 14 (1) (a) & (b) of the DRC Act, praying to the court to dismiss the present petition with costs.
In his Written Statement, the respondent No. 1 has inter-
ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 4 / 30alia stated that the respondent No. 1 has no concern whatsoever with the tenanted premises. That the respondent No. 1 never took the tenanted premises on rent from the petitioner. That the respondent No. 1 neither took the possession of the tenanted premises nor occupied the same at any point of time, nor there is any agreement of the answering respondent with the petitioner in respect of the tenanted premises. That the answering respondent never carried out any commercial activity or business of Tent House from the tenanted premises.
It is further contended by the petitioner that although the legal notice of the petitioner dated 16.05.2003 was absolutely false, frivolous, vague and invalid in the eyes of law yet the answering respondent immediately replied the same.
4. Written Statement was also filed by the respondent No. 2 Sh. Surjit Nagpal in response to the petition filed by the petitioner U/S 14 (1) (a) & (b) of the DRC Act, praying to the court to dismiss the present petition with costs.
In his Written Statement, the respondent No. 2 has inter- alia stated that the respondent no. 1 has no concern whatsoever with the tenanted premises and the same is under the tenancy of the replying respondent since its inception and the tenanted premises was let out to the replying respondent, who has been using it as shop for the business of 'Nagpal Tent House' of which the replying respondent is the proprietor. That the tenancy is very old and the replying respondent was let out the tenanted premises by the petitioner in the year 1975-76 having an area of 10X12 ft. with a 06 feet verandah of asbestos sheets at a monthly rent of Rs. 125/- and electricity charges of ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 5 / 30 Rs. 25/- per month. That the replying respondent has been regularly paying the rent to the petitioner but he is not in the habit of issuing the rent receipt right from the beginning. That the respondent no. 1 has had no connection whatsoever with the tenanted premises at any point of time. That although the legal notice of the petition dated 16.05.2003 was absolutely false, frivolous, vague and invalid in the eyes of law yet the replying respondent immediately replied the same giving true facts to the counsel for petitioner and tendered the legally recoverable rent through a Bank draft along with the said reply but the said bank draft was returned by the counsel for petitioner. That the present agreed rate of rent is Rs. 200/- per month and not Rs. 1,000/-, as alleged. That the tender of rent is absolutely legal and the petitioner is restrained from filing the present petition under the provisions U/Sec. 14(1)(a) of D.R.C. Act after refusing to accept the arrears of rent.
Lastly, it is prayed by respondent no. 2 that the present petition may be dismissed with costs.
5. Record reveals that replications have also been filed by the petitioner to the written statements filed by the respondents. The petitioner has denied all the allegations levelled by the respondents and reiterated and reasserted all the facts as stated in the petition.
6. Thereafter, the matter was fixed for petitioner's evidence. The petitioner examined Ms. Shaifali Chowdhary Anand as PW-1, Sh. Virender Kumar, LDC from House Tax Department as PW-2, Sh. Shiv Shanker, JSA, Karol Bagh Zone, MCD, Delhi as PW-3, Sh. Naveen Grover as PW-4. All the witnesses were ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 6 / 30 cross examined at length. Thereafter, Petitioners' Evidence was closed.
On the other hand, respondents examined Sh. Kamal Nagpal as RW-1, Sh. Bhavdesh Sharma, Notice Server from Income Tax Department as RW-2, Sh. Kamal Kant Khandelwal as RW-3, Sh. Shanker Gogia as RW-4, Sh. Anil Kumar as RW-5. All the witnesses were cross examined at length. Thereafter, respondents' evidence was closed.
7. I have heard the arguments at length advanced by Ld. Counsels for both the parties and also have gone through the entire record and case law relied upon and written submissions. I have also carefully gone through the testimonies of the witnesses, documents and material on record.
LAW ON SEC. 14(1) (a) D.R.C. ACT:-
8. It is expedient to reproduce the relevant provision of Delhi Rent Control Act so that position may be crystal clear:-
"Section-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 court or any controller 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 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 arrears of the rent legally recoverable from him within two months of the ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 7 / 30 day 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)."
As such, the following are the ingredients of section 14(1) proviso (a) :-
(i) There should be a relationship of landlord and tenant between the parties.
(ii) There should be a non-payment or tendering of whole arrears of legally recoverable rent within two months of service of legal notice upon the tenant given by the landlord.
9. Let us discuss the ingredients of Sec. 14(1)(a) D.R.C. Act.
(i). RELATIONSHIP OF LANDLORD AND TENANT:-
10. Perusal of record shows that in the present case, the petitioner has claimed to be landlord and owner of the tenanted premises and has claimed that respondent no. 1 Sh. Girdhari Lal Sachdeva is a tenant and respondent no. 2 is sub-tenant.
On the other hand, the claim of the respondent no. 1 is that he has no concern with it. The claim of the respondent no. 2 is that he is the actual tenant in the tenanted premises and respondent no. 1 has no concern with it.
It is well settled law that the onus is on the landlord/petitioner to prove his case and to prove the tenancy of ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 8 / 30 respondent no. 1, petitioner has filed a number of counter foils to the rent receipts bearing the signatures of respondent no. 1 Sh. Girdhari Lal Sachdeva Ex. PW-1/2 to PW-1/22, PW-1/22A and PW-1/22B (Colly.). Petitioner has also relied upon the reply Ex. PW-1/30 to the legal notice given by respondent no. 1 Sh. Girdhari Lal Sachdeva, Survey report Ex. PW-2/1 and record pertaining to MTNL Telephone in the name of M/s Nagpal Tent House, Proprietor Sh. Surjeet Nagpal (Colly.).
Record shows that no rent agreement has been placed on record by either of the parties and the petitioner himself has claimed that tenancy to the respondent no. 1 Sh. Girdhari Lal Sachdeva was oral and not in writing.
Perusal of the record shows that respondents have relied upon the documents i.e. telephone bills Ex. RW-1/1 to RW-1/4, Notice from Income Tax Department Ex. RW-1/5, LIC premium receipt Ex. RW-1/6 to RW-1/8, receipt from Licensing Department of MCD Ex. RW-1/9. Moreover, respondents have also relied upon the Income Tax Returns Ex. RW-2/A produced by Income Tax official RW-2. Furthermore, the respondents have also relied upon Ex. RW-3/X (Colly.), photographs of signatures Ex. RW-3/Y, CD of photographs and report of handwriting expert Ex. RW-3/Z.
11. Now, the question before the court is whether the respondent no. 1 Sh. Girdhari Lal Sachdeva or respondent no. 2 Sh. Surjeet Nagpal is tenant in the tenanted premises.
Perusal of record shows that in the present case, respondents have not disputed the ownership of the petitioner. Moreover, respondent no. 2 has not disputed the relationship of landlord and tenant between petitioner and him, but disputed ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 9 / 30 the relationship of landlord and tenant between petitioner and respondent no. 1. Moreover, respondent no. 1 has disputed the relationship of landlord and tenant between the petitioner and himself. As such, in nut-shell the case of the petitioner is that respondent no. 1 is his tenant but the respondent no. 1 has denied this relationship. As such, the court has to determine whether there exists relationship of landlord and tenant between the petitioner and respondent no. 1 or not.
12. I have carefully gone through the petition of the petitioner which shows that the petitioner has stated that the tenanted premises was let out to the respondent no. 1 for residential purposes but he started it using for commercial purposes and thereafter, sublet, assigned and parted with possession of the room/tenanted premises to respondent no. 2. It is further stated in the petition by the petitioner that tenanted premises was let out to the respondent no. 1 on 01.04.1973 initially at the rate of Rs. 125/- per month and thereafter rent was enhanced to Rs. 1,000/- per month in the year 1996. The further case of the petitioner is that rent is due from 01.08.2000 upto date @ Rs. 1,000/- per month despite receiving the notice of demand dated 16.05.2003 duly served upon respondent no. 1.
On the other hand, the case of the respondent No. 1 is that he never took the tenanted premises on rent from the petitioner. Neither the possession was taken nor he occupied the same at any point of time by the respondent No.1. And the respondent no. 1 never carried out any commercial activity in the tenanted premises.
Perusal of record shows that a number of rent receipts have been filed by the petitioner to prove that respondent no. 1 ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 10 / 30 Sh. Girdhari Lal Sachdeva is the tenant in the tenanted premises. On the other hand, respondents have claimed that these counter foils are having false signatures of respondent no. 1.
Perusal of record shows that the respondents have examined Handwriting Expert RW-4 Sh. Shanker Gogia to prove the fact of forged signatures of respondent no. 1 on the counter foils to the rent receipts. Perusal of record shows that the finding of the handwriting expert is based on a comparative study of the signatures on the counter foils to the rent receipts and signatures of the respondent no. 1 on the written statement filed in the present case.
13. In view of material on record, this court is reluctant to accept the opinion of the handwriting expert RW-4 as given in his report for the reason that comparison of signatures have been done with the signatures on the written statement which was filed by the respondent no. 1 only after going through the petition and documents and specifically counter foils to the rent receipts. There is very likelihood of deliberate change of signatures on the written statement by the respondent no. 1 as the respondent no. 1 was aware of the fact that these counter foils are very much relevant and significant.
These signatures on the counter foils to the rent receipts should have been compared to the signatures of respondent no. 1 which were of the earlier times. Moreover, deposition made by the handwriting expert during the cross examination also shows that his opinion in respect of signatures on the counter foils cannot be accepted.
It is also pertinent to mention that the disputed signatures ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 11 / 30 are of the year 1975 onwards whereas the signatures on the W.S. were put in the year 2003. As such, there is a gap of almost 28 years between disputed signatures and admitted signatures. Moreover, the age of respondent no. 1 at the time of putting the signatures on written statement is supposed to be above 75 years in view of material on record and there is very likelihood of change in the signature of any person after the lapse of such a long time.
14. In my considered view, signatures never remains same of any person for a long time and there is very likelihood of variation in signatures. Besides, there is very likelihood of change of signature due to old age also.
So, in my considered view, keeping in view the discussions as earlier and the deposition during the cross examination of RW-4, this court is unable to accept the opinion of the Handwriting Expert RW-4.
15. Perusal of record shows that respondent no. 2 has claimed that he is a tenant in the tenanted premises since 1975- 1976 and he has been regularly paying rent to the petitioner but no rent receipts were issued by him, due to which rent receipts have not been placed on record.
Perusal of record shows that it is true that no rent receipts have been placed on record by the respondent no. 2 to prove his tenancy in the tenanted premises but the claim of the respondent no. 2 is that rent receipts were never issued by the petitioner. It is unbelievable that respondent no. 2 paid the rent for more than 25 years but even a single receipt was not issued by the petitioner. Moreover, it is also beyond the imagination ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 12 / 30 that respondent no. 2 paid rent for more than 25 years but did not raise any objection at all before the petitioner nor filed any application before the Rent Controller U/Sec. 26 of the D.R.C. Act for redressal of his grievance in respect of non issuance of rent receipts by the petitioner.
Even if it is assumed for the sake of arguments that the rent was paid by the respondent no. 2 to petitioner but rent receipts were not issued, in my considered view, he could have approached the Rent Controller for redressal of his grievance but he omitted to do so for the reasons best known to him. No plausible reasons have been given by the respondent no. 2 for such an omission.
16. In my considered view, when a remedy has been provided by the law to a person, it is the right of that person to go for such remedy and if he does not opt for such remedy, he does so at his own cost. Later on, he cannot blame the others for infringement of his rights. As such, the respondent no. 2 cannot take advantage of his own default.
17. As far as reply given by the respondent no. 1 Ex. PW- 1/30 to the legal demand notice is concerned, the language of reply to the legal demand notice itself shows that respondent no. 1 Sh. Girdhari Lal Sachdeva has been connected with the tenanted premises. If the respondent no. 1 had never been connected to the tenanted premises, he would have never stated that in the reply to legal notice that he has no concern with the tenanted premises for the last more than 25 years.
18. In my considered view, he would have simply stated that ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 13 / 30 he has no concern with the tenanted premises. As such, reply to the legal notice Ex. PW-1/30 manifestly signifies that respondent no. 1 has been connected with the tenanted premises.
I have carefully scrutinized the written statement filed by respondent no. 2 Sh. Surjeet Nagpal which shows that although the respondent no. 2 has claimed to be tenant in the tenanted premises but no specific date of letting out to him has been stated in the W.S. by the respondent on. 2 as he has merely stated in the W.S. that the tenanted premises was let out to him by the petitioner in the year 1975-76 It is unbelievable that Sh. Surjeet Nagar/respondent no. 2 who himself claimed to be tenant in the tenanted premises, was not aware of the exact date of letting out of the tenanted premises to him but after his death during the cross examination, his wife Smt. Kamal Nagpal specifically stated the exact date of letting out i.e. 01.04.1975.
In my considered view, it appears to be an afterthought, as it is unbelievable that alleged tenant i.e. Sh. Surjeet Nagpal was not aware of date of starting of his tenancy but his wife was aware of exact date of starting of tenancy of her husband.
During the cross examination, RW-1 sh. Kamal Nagpal herself stated that her husband never got any receipt for the rent paid by him to Sh. Hari Chand Grover and also not demanded by her husband and he paid rent till date. During the cross examination, RW-1 deposed that her father never got any notice from the petitioner but later on, she admitted the signature of her father on reply Ex. RW-1/DX given by his father to the notice given by the petitioner.
ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 14 / 3019. Perusal of record shows that the respondents have also relied upon telephone bills Ex. RW-1/1 to RW-1/4, notice from Income Tax Department Ex. RW-1/5, premium receipt issued by LIC Ex. RW-1/6 to RW-1/8 and receipt issued by licensing department MCD Ex. RW-1/9.
20. I have carefully scrutinized these documents. Perusal of telephone bills Ex. RW-1/1 to RW-1/4 show that these bills are pertaining to the year 1991, 1992, 1993 and 1996. As such, no telephone bill in respect of the year 1986 to 1990 has been placed on record by the respondent no. 2. Moreover, during the cross examination RW-1 herself admitted that no NOC was taken by the respondent no. 2 from the petitioner to install the telephone.
As such, it cannot be said that the petitioner was absolutely aware of the fact of installation of telephone by sh. Surjeet Nagal/respondent no. 2 in his own name. Moreover, these bills merely show the possession of respondent no. 2 in the tenanted premises and it does not prove the fact that the respondent no. 2 was let out by the petitioner on 01.04.1975 as claimed by the RW-1 during the cross examination. Moreover, these bills are not pertaining to the year 1975 onwards and it starts only from the year 1991 onwards.
21. As far as RW-1/5 notice given by the Income Tax department is concerned, it is also of the year 1984 and not of the year 1975 and it also does not prove the tenancy of respondent no. 2 Sh. Surjeet Nagpal in tenanted premises in the year 1975-76.
ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 15 / 3022. Moreover, RW-1/6 to RW-1/8 i.e. LIC premium receipts also do not prove the fact of starting of tenancy of respondent no. 2 in the year 1975-76, as claimed by the respondent no. 2. It is pertinent to mention that perusal of record shows that respondent no. 2 is not a stranger to the respondent no. 1 and he is the son in law of the respondent no. 1. As such, it is not impossible to get the name of the respondent no. 2 in such documents mentioned by the respondent no. 2.
23. As far as the document i.e. receipt issued by licensing department MCD Ex. RW-1/9 is concerned, such licensing fee was paid for the period 1983 onwards but it was paid in the year 2003. As such, it cannot be relied upon as fee was deposited for the previous years in the year 2003 and it is not pertaining to the relevant period i.e. 1975 onwards.
24. As such, perusal of record, discussion as earlier, manifestly shows that there exists relationship of landlord and tenant between the petitioner and respondent no. 1 Sh. Girdhari Lal Sachdeva. On the other hand, the respondents have failed to prove such relationship of landlord-tenant between petitioner and respondent no. 2.
(ii). There should be a non-payment or tendering of whole arrears of legally recoverable rent within two months of service of legal notice upon the tenant given by the landlord:-
Service of Legal Demand Notice:-
25. Perusal of record shows that the petitioner has given legal demand notice dated 16.05.2003 Ex. PW-1/23 to ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 16 / 30 respondent no. 1 by way of UPC and registered AD.
On the other hand, the respondent no. 1 has not claimed that such notice was not received by him. Moreover, record shows that even reply to the legal demand notice was given by the respondent no. 1 sh. Girdhari Lal Sachdeva which is on record. Moreover, the respondent no. 1 has not disputed the fact of giving such reply to the petition. Even during the cross examination RW-1 Smt. Kamal Nagpal admitted the signatures of her father Sh. Girdhari Lal Sachdeva/respondent no. 1 on such reply Ex. RW-1/DX.
26. As such, the service of legal demand notice on respondent no. 1 is proved by the petitioner as provided U/Sec. 14(1)(a) of D.R.C. Act.
(iii). NON PAYMENT OF RENT:
27. Perusal of record shows that the petitioner has claimed that respondent no. 1 has not paid rent w.e.f. 01.08.2000 @ Rs. 1,000/- p.m. to him.
On the other hand, the respondent No. 1 Sh. Girdhari Lal Sachdeva has stated that he has no concern with the tenanted premises.
28. It is pertinent to mention that perusal of W.S. filed by the respondent no. 1 shows that respondent no. 1 has not stated the rate of rent in case the rate of rent is not Rs. 1,000/- as claimed by the petitioner. Even the date has not been mentioned by the respondent no. 1 from which the rent is due by him to the petitioner.
ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 17 / 30As such, indirectly and impliedly respondent no. 1 has admitted the allegations of petitioner in respect of rate of rent and date of rent due. The only claim of the respondent no. 1 is that since he does not have any concern with the tenanted premises, the question of rate of rent or rent due do not arise at all. Since the relationship of landlord and tenant between the petitioner and respondent no. 1 has already been held to be proved as discussed earlier, the respondent no. 1 cannot raise such defence now.
As far as tendering of rent by the respondent no. 2 Sh. Surjeet Nagpal is concerned, in my considered view, respondent no. 2 has no right to tender the rent due and it was the duty of the respondent no. 1 Sh. Girdhari Lal Sachdeva to tender the rent to the petitioner. Moreover, it is not the case of respondent no. 1 or respondent no. 2 that respondent no. 2 was authorised on behalf of respondent no. 1 to tender the rent.
29. As such, it is proved on record that the rent is due from the respondent no. 1 w.e.f. 01.08.2000 @ Rs. 1,000/- per month.
30. In view of discussion earlier, this ingredient in respect of non payment of rent under Sec. 14(1)(a) of D.R.C. Act is also satisfied.
CONCLUSION ON SEC. 14(1)(a) OF D.R.C. ACT :
31. As such, the petitioner has been able to prove all the ingredients of 14(1)(a) of DRC Act in respect the tenanted premises i.e. one big front room being used for tent shop now comprising area of 18X10 on the ground floor in the ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 18 / 30 premises bearing No. F-212, Mansarover Garden, New Delhi, as shown red in the site plan attached with the petition Ex. PW-1/1.
32. Perusal of record shows that an order U/Sec. 15(1) D.R.C. Act dated 05.06.2004 was passed by Ld. Predecessor directing the respondent No. 1 to pay or deposit the arrears of rent w.e.f. 01.08.2000 @ Rs. 1,000/- per month within one month from the date of order and further directed to continue to pay or deposit the future rent on or before the 15 th of each succeeding English Calendar month.
Thereafter, an appeal was filed before the Ld. RCT which was disposed of by the Ld. RCT vide order dated 05.04.2005 inter-alia directing that in case amount is deposited before the Trial court, the amount of rent for the period from August 2000 to January 2003 will not be released to the petitioner till the final adjudication of present eviction petition. Thereafter, an appeal was preferred before the Hon'ble High Court of Delhi which was disposed of on 22.03.2010 with the direction to the Rent Controller/ Additional Rent Controller concerned to release the rent deposited by the respondent herein to the petitioner herein after taking an undertaking from petitioner herein that in case the court arrives at a conclusion that this amount was to be paid back, the petitioner herein shall pay back the amount to respondent herein herein with interest @ 7% per annum.
33. Hence, in view of discussion earlier, an modified order U/Sec. 15(1) of the D.R.C. Act is passed directing the respondent No. 1/L.Rs to pay or tender the rent to the petitioner/L.Rs or deposit in the court at the rate of Rs. 1,000/-
ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 19 / 30per month w.e.f. 01.08.2000 till date along with simple interest @ 15% per annum within one month from the date of this order and the respondent No. 1 is also directed to pay the future rent at the same rate month by month on or before each succeeding English calendar month.
34. Nazir is directed to file his report on 13.11.2019 regarding compliance by the respondent No. 1 of orders passed U/Sec. 15(1) of the D.R.C. Act dated 05.06.2004 passed by Ld. Predecessor as modified by the Ld. Appellate Court as well as the modified order passed today by this court.
35. It is pertinent to mention that in compliance with the order dated 22.03.2010 passed by Hon'ble High Court of Delhi, this court directed the petitioner to file the undertaking so that rent deposited by the respondent no. 1 may be released to the petitioner. Record shows that undertaking as well as the affidavits have already been placed on record.
36. Perusal of the record shows that in the appeal, the Hon'ble High court vide order dated 22.03.2010 directed the rent deposited to be released in favour of petitioner herein/landlord but the prayer has been made by Sh. Naveen Kumar Grover to release the rent only in his favour but record shows that Sh. Naveen Kumar Grover has not been arrayed as petitioner in the latest amended memo of the parties but has been arrayed as respondent. As such, the amount cannot be released in favour of Sh. Naveen Kumar Grover. However, the petitioner is at liberty to comply with the order of the Hon'ble High court dated 22.03.2010 to get the rent released in her ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 20 / 30 favour.
37. Miscellaneous file be prepared for ascertaining the benefits U/Sec. 14(2) of the D.R.C. Act.
Section 14 (1) (b) sub-letting:-
38. It is expedient to reproduce the Section 14 (1)(b) of DRC Act which is as under:
"Section-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 court or any controller 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 recovery of possession of the premises on one or more of the following grounds only, namely:-
(b) That the tenant has, on or after the 9th day of June, 1952, sub-let, assigned or otherwise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord".
39. As per D.R.C. Act, Section 14 (1)(b) D.R.C. Act is one of the grounds entitling landlord to get the order of eviction against the tenant. It is well settled that subletting is not absolutely ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 21 / 30 prohibited by the law or by the Delhi Rent Control Act but the subletting should be with the consent of landlord and such consent should be in writing. Section 14 (1)(b) clearly lays down that eviction may take place even when the tenant has parted with the possession of whole or part of the premises. In view of provision of law, the landlord is required to prove following essential conditions:-
(i) The tenant sub-let, assigned or parted with the possession of the whole or part of the premises. i.e. the sub tenant was in exclusive possession of property or part of the property.
(ii). No consent in writing was taken from the landlord by the tenant.
40. It is well settled that exclusive possession means the possession to the exclusion of others and it includes not only the physical possession but also the legal possession. It is also clear that parting with possession means giving possession to persons other than those to whom possession was assigned by the lessee and parting with possession must have been by the tenant.
It is also settled that mere use by other persons is not parting with possession so long as the tenant retains the legal possession himself. Subletting take place only when there divesting of physical possession as well as of the right to possession. In other words, there must be vesting of possession by the tenant in other person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant keeps the control with him, it ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 22 / 30 can not be said that sub-tenant is in exclusive possession of premises and in such situation the case does not fall within Section 14 (1)(b) D.R.C. Act.
The divestment or abandonment of the right to possession is always necessary to invoke the clause of parting with possession.
41. In the case titled as Vaishakhi Ram & Others Vs Sanjeev Kumar Bhatiani 2008, 14 SCC, it was held as under:-
"21. It is well settled that the burden of proving subletting is on the landlord but if the landlord proves that the subtenant is in exclusive possession of the suit premises, then the onus is shifted to the tenant to prove that it was not a case of subletting."
In the case titled as Associated Hotels of India Limited Delhi Vs. S.B. Sardar Ranjit Singh, 1968, AIR (SC) 933, it was held that when eviction is sought on the ground of subletting, this onus to prove subletting is on the landlord. If the landlord prima facie shows that the occupant who was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.
In the case titled as Kala and another Vs. Madho Parshad Vaidya, 1998, 6 SCC, 573; the Hon'ble Apex Court reiterated the very same principle observing that the burden of proof of subletting is on the landlord but once he establishes parting of possession by the tenant to third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus, it is permissible for the court to ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 23 / 30 raise an inference that such possession was for monetary consideration.
In the case titled as Prem Parkash Vs. Santosh Kumar Jain & Sons and another, 2017, law suit (SC) 872, the relevant para is as under:-
"18. sub-tenancy or subletting comes into existence when the tenant gives a possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession of that person, instead of the tenant which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person in possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the subtenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sublet, had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sublease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sublet or it may have been paid or promised to have been paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the fact of the case."
In the case titled as Munshi Ram Vs Bhoj Ram through LRs in C.M. (M) No.1612/2010 and C.M. No.8004/2005, wherein it was observed as under:
ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 24 / 30"It is well settled that to make out a case for subletting or parting with possession, it means giving a possession to persons other than those to whom the possession had been given by the original lessor and that parted with possession must have been made by the tenant. The word 'subletting' necessarily means transfer of an exclusive right to enjoy the property in favour of the third party."
In the case titled as Shalimar Tar Products Ltd. Vs H.C. Sharma, 1988, 1 (SCC) 70, the Hon'ble Apex Court noted that to constitute a subletting, there must be a parting with a legal possession and whether in a particular case, there was subletting or not, was a question of fact.
It is well settled that to establish the aforesaid ingredients, the landlord must establish that tenant had completely divested himself of the suit premises and parted with possession of the suit premises of the whole or part of the premises to the sub- tenants and this should be substantiated by the evidence.
In the case titled as Praveen Saini Vs Reetu Kapur & Anr. 246 (2018) DLT 709, the Hon'ble High Court of Delhi inter- alia observed as under:-
"On the aspect of admissions being binding, this Court would like to straightaway refer to the judgment of the Supreme Court in the case of Nagindas Ramdas Vs Dalpatram Ichharam alias Brijram & Others, 1973 (SLT Soft) 15 (1974) 1 SCC 242, because in this judgment the Supreme Court has laid down the ratio that evidentiary admissions are different than judicial admissions. Supreme Court has held that admissions which are made in judicial proceedings are on a higher pedestal than evidentiary admissions made in the form of correspondence etc and that judicial admissions can be a basis in themselves for deciding the claim. The relevant para 27 of the judgment in the case of Nagindas Ramdas (supra) read as under:-
"27. From a conspectus of the cases cited at the bar the principle that emerges is that if at the time of the passing of the decree, there was some material before the court, on the basis of which the ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 25 / 30 court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement itself. Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admission admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rivalas evidence are by themselves not conclusive. They can be shown to be wrong."
In the case titled as Sukhpal Singh & Anr. Vs Satbir Singh & Anr. 296 Capital Law Judgment 2012 (4), the Hon'ble Delhi High Court inter-alia observed as under:-
"4. It is important to note that the onus of proving sub-tenancy lies on the landlord. 0The Supreme Court in "Jagan Nath Vs Chander Bhdn, AIR 1988 SC 1362", enunciated the principles whereby once the landlord has proved that a particular portion of the demised premises has been given in exclusive possession to a stranger, then the onus shifts upon the tenant."
In the case titled as Padam Chand Jain Vs Messrs Mahabir Pershad & Sons and another, S.A.O. No.464 of 1968, the Hon'ble Delhi High Court inter-alia observed as under:-
"It is now settled by the decision of a Full Bench of this Court in Kedar Nath and another Vs Smt. Mohini Devi, etc. that the initial burden lies upon the landlord to establish that any of the conditions mentioned in the clauses (a) to (e) of the proviso exists (vide at page 170-I of the report)."ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 26 / 30
42. Keeping in view, the aforementioned principles of law and observations made by the Hon'ble Superior Courts, I have carefully gone through the entire testimonies of all the witnesses from the petitioners' side and respondent's side and also all the relevant documents filed on record and arguments advanced by the Ld. Counsels and I have also gone through carefully the case law relied upon.
43. Lets discuss the 1st ingedients:-
(i). The tenant sub-let, assigned or parted with the possession of the whole or part of the premises. i.e. the sub tenant was in exclusive possession of property or part of the property.
44. Perusal of record shows that the petitioner has claimed that respondent no. 1 Sh. Girdhari Lal Sachdeva is his tenant and respondent no. 2 Sh. Surjeet Nagpal is a sub-tenant in the tenanted premises.
On the other hand, respondent no. 1 has claimed that he has no concern with the tenanted premises and there does not exists any relationship of landlord and tenant between petitioner and him.
On the other hand, respondent no. 2 has claimed that he is not a sub-tenant in the tenanted premises but a tenant. But the petitioner has denied the averments made by both the respondents.
45. Perusal of record shows that the physical possession as well as the legal possession is with the respondent no. 2 and ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 27 / 30 the respondent nos. 1& 2 themselves have submitted that respondent no. 1 is not in possession of the tenanted premises. Moreover, respondent no. 2 also admitted that he is in possession of the tenanted premises. Even, documents have been placed on record by the respondent no. 2 to show that he is in possession thereof.
As discussed earlier while dealing with the U/Sec. 14(1)
(a) of D.R.C. Act that there exists the relationship of landlord and tenant between the petitioner and respondent no. 1.
Although, the respondent no. 2 has claimed to be tenant in the tenanted premises but has miserably failed to establish this fact as discussed earlier while dealing with the ingredients of U/Sec. 14(1)(a) of D.R.C. Act. Moreover, respondent no. 2 is in possession of the tenanted premises which is an undisputed fact. Moreover, it is not the case of the respondent no. 2 or respondent no. 1 that legal possession is with the respondent no. 1. Both the respondents have admitted that respondent no. 2 is in physical as well as legal possession of the tenanted premises. Respondent no. 1 has not claimed that legal possession of the tenanted premises is with him.
46. It is well settled that initial burden to prove that subtenant is in exclusive possession of the tenanted premises is on the owner. However, the onus to prove the exclusive possession of the subtenant is that of preponderance of probability only and he has to prove the same prima- facie only and if he succeeds then the burden to rebut the same lies on the tenant.
47. As such, in my considered view, keeping in view the material on record and admissions made by both the ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 28 / 30 respondents, respondent no. 1 has been unable to give reasons for presence of respondent no. 2 in the tenanted premises.
It is well settled that the petitioner has to prove his case prima-facie only and once he shows the prima-facie case, the onus shift to the respondent to show the reasons for presence of third party in the tenanted premises.
In my considered view, respondent no. 1 has miserably failed to discharge his burden.
48. As such, this ingredient of Sec. 14(1)(b) is satisfied.
(ii). No consent in writing was taken from the landlord by the tenant.
49. Perusal of record shows that petitioner has claimed that no consent in writing was taken by the respondent no. 1 before sub-letting the tenanted premises to respondent no. 2. On the other hand, respondent no. 1 has not claimed that consent in writing was taken from the petitioner before sub-letting.
Since first ingredient has already been satisfied by the petitioner, as discussed earlier, this ingredient is also satisfied as respondent no. 1 has not claimed that consent in writing was taken by the respondent no. 1 from the petitioner.
50. As such, this ingredient under Sec. 14(1)(b) D.R.C. Act is also satisfied by the petitioner.
CONCLUSION:-
51. In view of the aforesaid discussion, the petitioner has been able to prove all the ingredients of 14(1)(a) of DRC Act in respect of the tenanted premises i.e. one big front room ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 29 / 30 being used for tent shop now comprising area of 18X10 on the ground floor in the premises bearing No. F-212, Mansarover Garden, New Delhi, as shown red in the site plan attached with the petition Ex. PW-1/1.
Nazir is directed to file his report on 13.11.2019 regarding compliance by the respondent No. 1 of orders passed U/Sec. 15(1) of the D.R.C. Act dated 05.06.2004 passed by Ld. Predecessor as modified by the Ld. Appellate Court as well as the modified order passed today by this court.
Miscellaneous file be prepared for ascertaining the benefits U/Sec. 14(2) of the D.R.C. Act.
52. So far as Section 14(1)(b) of D.R.C. Act is concerned, the petitioner has proved all the ingredients of Sec. 14(1)(b) of D.R.C. Act against the respondent No. 1. As such, an eviction order is passed in favour of petitioner and against the respondent no. 1 in respect of the tenanted premises i.e. one big front room being used for tent shop now comprising area of 18X10 on the ground floor in the premises bearing No. F-212, Mansarover Garden, New Delhi, as shown red in the site plan attached with the petition Ex. PW-1/1.
53. This file be consigned to Record Room after due compliance.
Digitally signedAnnounced in the open Court AJAY by AJAY NAGAR on 26th September, 2019. Date:
NAGAR 2019.09.26
16:38:27 +0530
(This judgment contains 30 pages)
(Ajay Nagar)
Additional Rent Controller,
West District, THC, Delhi.
ARC No. 25513/16 Hari Chand Grover (Deceased) Through L.Rs Vs. Girdhari Lal Sachdeva (Through L.Rs) Page 30 / 30