Delhi District Court
Date Of Institution : 13.08.2009 vs Sh. Virender Gupta on 29 June, 2015
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IN THE COURT OF SH SUMEDH KUMAR SETHI,
ACJ/CCJ/ARC(WEST),TIS HAZARI, DELHI
UID No. 02401C0363472009
E No. 45/2009
Date of Institution : 13.08.2009
Date of Decision : 29.06.2015
Sh. Shyambir Tyagi
S/o Late Sh. Chet Ram Tyagi
R/o. WZ-60, Basai Darapur,
New Delhi-110015
........... Petitioner
Versus
Sh. Virender Gupta
S/o. Sh. Chhangur Prasad
Resident of a room at First Floor,
Property no. WZ-524/1, Basai Darapur,
New Delhi-110015 .......... Respondent
JUDGMENT
1. The present eviction petition has been filed by the plaintiff U/s. 14 (1) (a) and (b) of Delhi Rent Control Act, 1958.
Petitioner has alleged that :
1.1 Petitioner is the owner of the tenanted premises consisting of one room measuring about 10'-1" X 10'-8" on first floor of property bearing no. WZ-524/1 Basai Darapur, New Delhi-110015, as shown in red outlines in the site plan which was let out to the respondent for residential purpose but for the last about 2 years neither the respondent nor any member of his family has been residing in the same. The respondent has sublet the suit room to one Sh. Mohinder Gupta.
Now the said Sh. Mohinder Gupta has been residing in the suit premises. The respondent alongwith his family has been residing somewhere in Nihal Vihar near Police Post. The suit premises is in exclusive use of the said Sh. Mohinder Gupta.
1.2 The premises was let out to the respondent at the monthly rent of Rs.9,00/- per month excluding all other charges for residential E No. 45/2009 Shyambir Tyagi vs Virender Gupta 2 of 19 purposes.
1.3 That respondent is an old tenant. There is no written agreement between the parties but the petitioner issued the rent receipt to the respondent as and when he paid the rent of the suit room to him. 1.4 That the respondent, about 2 years ago, has sublet the suit room to one Sh. Mohinder Gupta.
1.5 That the petitioner is the owner and landlord of the suit premises. He let out the suit room located at the first floor of the suit property to the respondent for residential purpose. After family partition the suit premises fell to the share of the petitioner. Since the day of inception of tenancy, the respondent had been using the suit room for residential purposes but about two years ago he has sublet the suit room to one Sh. Mohinder Gupta.
1.6 That the respondent is habitual defaulter in the payment of rent. The rate of rent of the suit room is Rs.900/- per month exclusive of all other charges. Despite repeated requests and demands he has not paid the rent of the suit room to the petitioner since 01.06.2007 on one pretext or the other. The petitioner through his counsel served on the respondent a notice dated 19.11.2008 by Regd. A. D. post as well as under certificate of posting demanding the said arrears of rent of the suit room. The said notice was duly served upon the respondent. Despite the service of the said notice, the respondent has neither paid nor tendered the said arrears of rent due from him to the petitioner. Now the respondent is in arrears of rent amounting to Rs.23,400/- for the period commencing from 01.06.2007 and ending with 31.07.2009. As such he has become liable to be evicted from the suit room under section 14(1)
(a) of the Delhi Rent Control Act, 1958.
2. After service upon the respondent on 11.09.2009, appearance was put in on behalf of respondent. However, WS was filed on 23.12.2009.
3. In the WS that was filed on behalf of the respondent to the eviction petition filed by the petitioner, the respondent has alleged that:
3.1 That the petitioner has been harassing the respondent's father, E No. 45/2009 Shyambir Tyagi vs Virender Gupta 3 of 19 who is the actual tenant and in possession on one false pretext or the other so as to force him to vacate the premises.
3.2 That the respondent's father regularly handed over the rent to the landlords every month. The petitioner always made excuses regarding the issuing of the receipt against the rent received. He also assured the respondent next time he will issue the rent receipt. The respondent's father is above 70 years of old illiterate person and could not understand the motive of the petitioner. On repeated asking for the rent receipt the petitioner failed to handover the receipt. Even after filing the case he received rent but did not issue receipt. Hence, now he started sending by money order on month to month basis. 3.3 That the petitioner never served any proper legal notice upon neither the respondent nor upon his father regarding the alleged demand of the rent.
3.4 That the petitioner is even otherwise not maintainable as the premises in question is situated in the Slum Area and no permission from the competent authority constituted under the Slum Area Act has been obtained. No permission whatsoever has been obtained by the petitioner against the respondent to seek eviction of the respondent from the suit premises which are situated in the Slum Area. As per the Slum Area(Improvement and Clearance) Act, 1956, U/s 19 Proceedings for eviction of tenants not to be taken without permission of the competent authority.
3.5 That the petitioner cannot be allowed to take advantage of his own acts and omission by not issuing the proper rent receipt and thereby not accepting the rent sent through money orders.
3.6 That the instant petition is not maintainable as there has never been a default from the respondent side. It is pertinent to mention that the respondent's father is 70 years old person and has been living in the said premises for the many decades with his family members and never defaulted in making the payment of rents on month to month basis.
3.7 That the premises have got one room with varandah alongwith
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common toilet. That the contents of para no.3(a) of the petition are vague and calls for better particulars. That the contents of para no. 3(b) of the petition are vague and calls for better particulars. 3.8 That it is pertinent to mention that the respondent's father is the actual tenant and is living with his entire family members, whereas the respondent is living separately after marriage in Nihal Vihar, Delhi. 3.9 That the electricity and water supply has been illegally disconnected by the petitioner for no rhyme and reason to put undue pressure on the respondent to vacate the premises in question. 3.10 That neither the description of the premises in the tenancy of the respondent had been correctly given nor the measurement or the geographical directions thereof has been correctly given. 3.11 That the contents of para no.11 of the petition is a matter of record.
3.12 That it is further submitted that the respondent 's father is living in the suit premises for the last aprox. 40 years. It is pertinent to mention that there was an oral agreement with the father of the respondent that under no circumstances he would be evicted and he would remain as tenant perpetually. Taking advantage that he is an illiterate old person, the petitioner has been manipulating rent receipts and issuing incorrect receipts by obtaining signatures on the counter foil. The scrutiny of the said receipt would itself shows that the receipts have been issued on 29.05.2008 and the period shown is 01.05.2007 to 31.05.2007, but no demand was made between the date of issue of receipt and the date shown as rent. It is further submitted that when the petitioner stopped issuing the rent receipt, the respondent paid the rent which was accepted by the petitioner on 13.09.2008 for the month August, 2008.
Taking advantage, of the wrong receipt issued to the respondent and concealing this fact of payment of rent for August 2008, the petitioner filed a false and frivolous petition for eviction. After having received the rent for the month of August, 2008 the petitioner stopped issuing rent receipt on one pretext or the other. The petitioner even after filing E No. 45/2009 Shyambir Tyagi vs Virender Gupta 5 of 19 the case received rent and promised to withdraw the case. Seeing no alternative the respondent started sending rents through money orders. It is pertinent to mention here that the petitioner even tried to forcibly evict the tenant against which a police complaint dated 25.09.2008 was also lodged by the respondent against the petitioner and his musclemen.
3.13 That the contents of para no.16 and 17 of the petition need no reply.
3.14 That it is denied that the petitioner is the owner of the premises in question. However, he has been collecting rent and it was paid to him regularly. The petitioner be put to strict proof thereof that he is the owner of the premises in question. It is further submitted that the petitioner has not filed any proof or documents to corroborate the averments.
3.15 That it is vehemently denied that the respondent's father is a habitual defaulter. In fact he has never been defaulter at all, yet the petitioner is harassing and persecuting him to vacate the premises for which he made several attempts by illegal ways against which the police complaint was lodged. It is further submitted that the respondent's father is living in the suit premises for the last aprox. 40 years. It is pertinent to mention that there was an oral agreement between the parties that under no circumstances the respondent would be evicted and he would remain as tenant perpetually.
3.16 That taking advantage of the wrong receipt issued to the respondent and concealing this fact of payment of rent for August 2008, the petitioner filed a false and frivolous petition for eviction. After having received the rent till October 2009, the petitioner stopped issuing rent receipt on one pretext or the other. Seeing no alternative the respondent's father started sending rents through money orders. 3.17 That it is further submitted that no legal valid notice was ever served on the respondent or his father. It is pertinent to mention that since the respondent has been paying the rent throughout and E No. 45/2009 Shyambir Tyagi vs Virender Gupta 6 of 19 sending the same through money order after having refused to receive the same, the notice was not even required to have been sent to the respondent. However, the rent for the period sent through money order, which has been refused by the petitioner, the respondent is ready to deposit before the court instantly. It is vehemently denied that the respondent is in arrears of rent for the period commencing 01.06.2007 and ending with 31.07.2009 or that he is liable to be evicted for the said reason.
4. Replication was filed on behalf of the petitioner. In his replication, he submitted as under:
4.1 That it is false, fictitious, wrong and emphatically denied that the respondent's father is the actual tenant and in possession or that harassing tactics have been restored to by the owners for the last over many years and all tenants.
4.2 That it is false, fictitious, wrong and emphatically denied that the premises in question is situated in the Slum Area or that any permission from the Competent Authority constituted under the Slum Area(Improvement and Clearance) Act, 1956 is required for institution of the present petition against the respondent.
4.3 That the respondent never sent the rent by money order. The petitioner issued the rent receipts to him as and when the respondent paid the rent.
4.4 That it is false, wrong and emphatically denied that the premises have got one room with Varandah alongwith common toilet. It is submitted that the suit premises consists of one room only. There is no common toilet in the suit property.
4.5 That however, it is not disputed that for the last about 2 years the respondent has been living separately in Nihal Vihar, Delhi. 4.6 That para no.11 of the written statement does not need any reply. 4.7 That it is false, wrong and emphatically denied that the respondent's father is living in the suit premises for the last approx. 40 years or that there was an oral agreement with the father of the E No. 45/2009 Shyambir Tyagi vs Virender Gupta 7 of 19 respondent that under no circumstances he would be evicted or that he would remain as tenant perpetually. It is submitted that the respondent was inducted in the suit room as tenant in the middle of the year 1992. The version of the respondent shows as if the suit room had been gifted to him or to his father and he got a license to stay in the suit room even without paying the rent. It is false, vexatious, wrong and emphatically denied that the petitioner is taking any advantage of his being an illiterate old person or that he has been manipulated rent receipts or that he has been issuing incorrect receipts by obtaining signatures on the counter foil. It is submitted that on 29.05.2008 the respondent paid to the petitioner the rent of 5 months i.e. for the months of January, February, March, April and May, 2007.
Accordingly the petitioner issued separate rent receipt for each month. The respondent asked his mother to affix her thumb impression on the counter foils on the pretext that he was getting late to pick the school children as he had been driving the school van. Accordingly, the petitioner obtained the signatures of the mother of the respondent on the counter foils. Now it appears that the respondent did so intentionally, deliberately and with ulterior motive.
5. Vide order dated 07.07.2010 passed u/s 15 (1) of the DRC Act, the respondent was directed to pay to the petitioner the arrears of rent w.e.f. 01.12.2008 till date of the order within one month of the order and to continue to deposit the future rent at the same rate by 15 th day of each succeeding month.
6. In order to prove its case, the petitioner Shyambir Tyagi examined himself as PW-1 on behalf of petitioner. In his evidence, he has tendered his affidavit Ex. PW-1/A wherein he has reiterated the contents of the petition and relied upon the following documents:-
6.1 Ex. PW-1/1 to Ex. PW-1/7 are the said counter foils. 6.2 Ex. PW-1/8 is a notice dated 19.11.2008 sent by Regd. A. D. Post as well as under certificate of posting demanding the entire arrears of rent of the suit premises due since 01.06.2007.
E No. 45/2009 Shyambir Tyagi vs Virender Gupta 8 of 19 6.3 Ex. PW-1/9 is the postal receipt.
6.4 Ex. PW-1/10 is the certificate of posting.
6.5 Ex. PW-1/11 is the AD card signed by the father of the respondent. 6.6 Ex. PW-1/12 is the site plan.
PW-1 was cross-examined by ld. counsel for respondent. In his cross-examination, he admitted that his statement was recorded in the case against Dev Raj and certified copy of his statement in that case is Ex. PW-1/RX1. He also admitted that the site plan Ex. PW1/12 was prepared by Sh. Naresh Kumar Saini, Architect. He admitted that he had not filed any document of ownership qua the tenanted premise in the present case(after perusal of the file). Vol. he had partition deed which he could file. Sh. Chet Ram Tyagi was his father. He denied the suggestion that the property was never partitioned and that for this reason he had not filed any document on record. Vol. Partition Deed was registered. He knew Sh. Changur Prasad for last 20 years, who was present in the court. He denied the suggestion that Sh. Changur Prasad was living in the tenanted premises for last more than 40 years. Sh. He stated that the respondent Virender Gupta was a tenant in the premises since 1992. Sh. Virender Gupta used to pay rent to him since 1992 till May, 2007. He could produce the counter foil of rent receipt issued to Virender Gupta. Vol. Last receipt was received by mother of Virender Gupta.
Witness was shown four receipts and he was asked as to whether the said receipts had been issued by his father. After seeing the same, witness stated: The receipts dated 12.08.1978 & 19.06.1977 bear the signatures of his father and the same were now Ex.PW1/RX2 & PW1/RX3. As regards receipt No. 985 & 1262, he could not say who had issued those receipts, hence same were marked as Mark-RA and Mark- RB. Vol. Receipt Ex.PW1/RX1 & RW2 were with respect to property No. WZ-524. He could not say if Changur Prasad had ration card of addressed WZ-524/1. Receipt Ex.PW1/1 & PW1/2 did not bear his signatures. He admitted that in receipt Ex.PW1/1 & PW1/2 the rate of rent was mentioned as Rs.300/-. He could not remember as to whom he had E No. 45/2009 Shyambir Tyagi vs Virender Gupta 9 of 19 issued receipt No.5, 6 & 7, however he could produce the counter foils of the same. The receipts Ex.PW1/3 to Ex.PW1/6 did not bear his signatures. He denied the suggestion that receipts Ex.PW1/3 to Ex.PW1/6 had not been issued by him. The receipts Ex.PW1/3 to Ex.PW1/6 were all dated 29.05.2008. Receipts No. 51 to 55 and 58 were issued to other tenants. He could not say without seeing the receipts as on which he had issued the same. He could produce the same before the court. He denied the suggestion that he had prepared four receipts dated 29.05.2008 in order to commit fraud with Sh. Changur Prasad. He had not taken any action against the respondent for delay in paying of rent of the month of January, 2007. Vol. notice was issued on 19.11.2008. Ex.PW1/3 to Ex.PW1/6 bear thumb impression of Kasturi Devi, wife of Changur Prasad and mother of respondent. Vol. the words 'Kasturi Devi' had been written by him. He denied the suggestion that Changur Prasad was his tenant and that is why thumb impression of his wife Kasturi Devi is on the rent receipt. vol. Sh. Virender Gupta, respondent is his tenant and Kasturi Devi is his mother. Before 1992, the tenanted premises was vacant. He denied the suggestion that Changur Prasad was tenant of Sh. Chet Ram Tyagi and after his death he had been paying rent only to his other legal heirs. He had never issued notice to Changur Prasad. Vol. He had issued notice to respondent. He denied the suggestion that tenanted premises falls in slum area. He denied the suggestion that he had disconnected the water and electricity supply to tenanted premises. Vol. water was still being supplied and no payment was being paid by the respondent and electricity was never supplied by him. He never had any electricity in his name in the tenanted premises. There is no electricity connection in the tenanted premises in the name of Satbir Tyagi. Sh. Jasbir Tyagi is having his electricity connection in his portion of property No. WZ-524/1. He denied the suggestion that electricity was supplied to respondent through Jasbir Singh. He denied the suggestion that property bearing No. 524 & 524/1 were having the same number i.e. No. 524 earlier. vol. there was distance of 200 mtr. between the two properties. He denied the suggestion that in view of illiteracy of Changur E No. 45/2009 Shyambir Tyagi vs Virender Gupta 10 of 19 Prasad, he issued wrong receipt of earlier period upon receiving rent in the name of respondent. He denied the suggestion that any rent was paid after the filing of the present petition. He denied the suggestion that he issued wrong receipt to Dev Raj of prior period. He denied the suggestion that in view of raise in property rates, he want to get the premises evicted by hook or by crook. He denied the suggestion that he was deposing falsely for wrongful gain.
He did not bring any of the receipts as directed by Court on 05.09.2013 as those receipts had been sold by his mother to the Kabari (kabadi).
He denied that as per his own statement the receipts were in the control of his mother.
He denied the suggestion that there was no such receipts and hence it had not been produced or file in this case. Sh. Virender Gupta (respondent) was not staying in the premises in question for the last 7 years. He had never issued any notice to the respondent in respect of sub-letting of premises in question. He admitted that no notice of sub- letting was given to the respondent Virender Gupta in respect of premises in question because Virender Gupta was never a tenant and Changur Prasad was the tenant for the last 40 years.
There were 6-7 tenants in the property bearing no. WZ-524/1 Basai Dara Pur New Delhi-15. He had filed three petitions for eviction against three tenants. Vol. He had filed eviction petition against tenants Desh Raj, Phool Kumari & Ors as well as present one. The other tenants were Rajmani Dubey, Sh. Joginder Singh, Sh. Virender Sharma (deceased) and Jethin Mon. He denied the suggestion that they were not his tenants.
He stated had issued notice dated 19.11.2008 only demanding rent to Virender Gupta.
He also stated that suit property was constructed in the year 1970-75 and the remaining half portion was constructed in the year 1998. He had not filed any documents pertaining to the construction of the property.
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He denied the suggestion that he had filed a false suit against the respondent. Vol. he had filed a petition for sub-letting the premises in question. He denied the suggestion that he was deposing falsely.
7. PE was closed vide order dated 28.10.2013.
8. Numerous opportunities were given to the Respondent for RE, some subject to costs. However, despite the same, the respondent did not lead any RE nor did he pay the costs. Hence, RE was closed vide order dated 05.05.2014. Final Arguments have been heard on behalf of the petitioner. However, despite the matter being adjourned some times for clarifications, the counsel for the respondent did not appear to lead arguments. Record has been perused. Submissions considered.
9. GROUND OF NON PAYMENT OF RENT: To prove the case under Section 14 (1) (a) of DRC Act, the petitioner is required to prove the following ingredients:-
(i) That there is relationship of landlord and tenant between the parties;
(ii) Rate of rent;
(iii) That there were arrears of legally recoverable rent at the time of issuance of legal demand notice;
(iv) That a valid legal demand notice was duly served upon the respondent; and
(v) That the respondent has neither paid nor tendered the entire arrears of legally recoverable rent within two months of date of receipt of legal demand notice.
The ingredients are taken up for consideration one by one :-
RELATIONSHIP
10. The capacity of the petitioner stands established as the respondent has himself stated in his WS that the petitioner always made excuses regarding the issuing of the receipt. He also stated that rent was also tendered to the petitioner through money order. Moreover, he has stated that the contents of para 3(a) and 3(b) are vague and require E No. 45/2009 Shyambir Tyagi vs Virender Gupta 12 of 19 better particulars. Thus, the contents of these paras have not been specifically denied. These provide that the petitioner is the landlord and the respondent is the tenant. As per Section 2(e) of the DRC Act, "Landlord" means a person who, for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent to be entitled to receive the rent, if the premises were let to a tenant; Thus, as it is an admitted fact that the petitioner is receiving rent for the property in question, he is the landlord. Even otherwise, the question of ownership which the respondent has sought to raise, is irrelevant for a petition u/s 14(1)(a) of the DRC Act which can be filed by a landlord.
As far as the tenant is concerned, it is reiterated that the respondent has not denied the contents of para 3(b) of the petition. Moreover, at various places n the WS, it has been stated that the respondent has been staying the premises and paying rent. This observation has also been made by the Court while passing order u/s 15(1) of the DRC Act on 07.07.2010.
Moreover, Ex. PW-1/1 to Ex. PW-1/7 are the counter foils and Ex. PW-1/8 is a notice dated 19.11.2008 which are being relied upon by the petitioner to prove that the respondent is the tenant in the premises in question. Although, the respondent alleges manipulation in these, he has per se not denied the counter foils or the signatures on them. The petitioner has already stated that the respondent malafidely made his mother affix her thumb impression on a few counterfoils and no evidence has been led by the respondent to counter the same.
The only defence taken in this regard by the respondent is that the respondent's father is the actual tenant in the property. It is noteworthy that the burden of proving the same lies upon the respondent but he did not care to lead any evidence in this regard despite numerous opportunities. As a matter of fact, even an application filed u/O I Rule 10 E No. 45/2009 Shyambir Tyagi vs Virender Gupta 13 of 19 CPC by the father of the respondent on 20.11.2009 was not pressed for six years throughout the proceedings of the case. As a matter of fact, the affidavit accompanying this application contains the name of the respondent but has been signed by his father. None of the documents that the respondent sought to rely upon were proved by the respondent in evidence. Even otherwise, documents such as ration card merely show that the father of the respondent is merely residing at the premises in question but do not prove that he is the tenant therein.
The only documents relied upon by the respondent are the receipts Ex.PW1/RX2 & RW3 with which the petitioner was confronted during cross examination. These were purportedly issued in the name of respondent's father. The petitioner categorically stated that these were with respect to property No. WZ-524. (Inadvertently, in the relevant part of the cross examination the receipts have been referred to as Ex.PW1/RX1 & RW2 whereas the same should have been referred to as Ex.PW1/RX2 & RW3. This, however, is merely a clerical error and is of no consequence.) The premises in question bears the number WZ-524/1. The petitioner denied that property bearing No. 524 & 524/1 were having the same number i.e. No. 524 earlier and stated that there was distance of 200 mtr. between the two properties. He denied that Changur Prasad was his tenant. Thus, it was for the respondent to prove that the property no. WZ 524/1 and WZ 524 are the same and that his father Changur Prasad was a tenant therein. He has not done so. Moreover, in the receipts relied upon by the respondent the premises no. 524 has been referred to as shop whereas the premises in question is residential. Further, in one of the receipts, the number '1' seems to have been added after the number '524'. Although, the Court is not commenting further on this aspect right now, it seems highly doubtful that the receipt would have been issued in respect of the premises in question.
In view of the aforesaid, the relationship of landlord and tenant between the petitioner and the respondent stands proved.
RATE OF RENT
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11. The rate of rent as given in the petition is at the rate of Rs. 900/- per month. In the WS, it has been stated that para 11 of the petition (wherein the rate of rent is mentioned) is a matter of record and has not been denied. The oral and documentary evidence of the petitioner in this regard remains unrebutted. Hence, the aforesaid rate of rent stands established.
ARREARS OF RENT
12. As per the petitioner, the respondent has not paid the rent of the suit room to the petitioner since 01.06.2007. The petitioner also stated that on 29.05.2008 the respondent paid to the petitioner the rent of 5 months i.e. for the months of January, February, March, April and May, 2007. He also stated that the respondent was liable to pay arrears for the period commencing from 01.06.2007 and ending with 31.07.2009 (the petition being filed in August, 2009). The contention also derives support from the affidavit Ex. PW-1/A, legal notice Ex. PW-1/8 and the petition itself.
On the other hand, the respondent stated that after having received the rent for the month of August, 2008 the petitioner stopped issuing rent receipt on one pretext or the other. The petitioner even after filing the case received rent and promised to withdraw the case. Seeing no alternative the respondent started sending rents through money orders Orders were passed under Section 15 (1) of DRC Act on 07.07.2010 wherein the respondent was directed to pay the rent at the rate of Rs. 900/- per month w.e.f from 01.12.2008 and thereafter since the legal notice was issued in November, 2008. The deposition of the petitioner remains credit-worthy in this regard as the respondent has not led any evidence despite opportunity to show that rent was paid or even tendered by him. No document was proved to show that the rent was tendered through money order. Neither the respondent nor his father stepped in the witness box to prove their contentions. No petition was filed by respondent or his father u/s 27 of the DRC Act for depositing rent in Court in case of non-acceptance. No petition was filed u/s 26 of the E No. 45/2009 Shyambir Tyagi vs Virender Gupta 15 of 19 DRC Act, in case the petitioner failed to issue receipt for rent paid to him as alleged. The limitation period for recovery of rent is three years and since the petition was filed in August, 2009, the petitioner would have been entitled to recover arrears w.e.f. August, 2006. However, since the petitioner has claimed arrears w.e.f. 01.06.2007, in the absence of any evidence to prove the payment or even tendering of rent for the said period, the respondent is held to be liable to pay arrears of rent w.e.f. 01.06.2007.
THAT A VALID LEGAL NOTICE OF DEMAND WAS DULY SERVED UPON THE RESPONDENT
13. The legal notice Ex. PW-1/8 was sent to the respondent and the postal receipt Ex. PW-1/9 is on record in this regard. The certificate of posting is Ex. PW-1/10 and AD Card purportedly bearing the signatures of the father of the respondent is Ex. PW-1/11. It has been held in the case of Jagdish Singh Vs. Natthu Singh; AIR 1992 SC 1604 that where a notice is sent by the landlord by registered post and the same is returned by the tenant with an endorsement of refusal, it will be presumed that the notice has been served. Thus, in view of the law laid down above and by virtue of Section 27 of General Clauses Act 1897, the respondent is deemed to have been served with a legal notice of demand in the present case as the notice has been duly sent through registered post and even the AD Card has been produced in evidence. FAILURE TO PAY OR TENDER ARREARS OF RENT DESPITE SERVICE OF NOTICE
14. In view of order dated 07.07.2010, oral and documentary evidence produced by the petitioner and in the absence of any evidence by the respondent to the contrary, it is held that the respondent has neither paid nor tendered the entire arrears of legally recoverable rent despite service of legal demand notice within statutory period of two months.
15. Thus, it is hereby held that in view of the aforesaid facts and circumstances given above, the petitioner has succeeded in establishing and proving the ingredients of Section 14 (1) (a) of DRC Act. The eviction E No. 45/2009 Shyambir Tyagi vs Virender Gupta 16 of 19 petition stands allowed.
16. The order dated 07.07.2010 passed u/s 15(1) of the DRC Act stands modified to the extent that the respondent is directed to deposit/ pay arrears of rent @ Rs. 900/- per month w.e.f. 01.06.2007 alongwith statutory interest @ 15% per annum within 30 days from this order.
17. GROUND OF SUBLETTING: The petitioner has alleged that the respondent has sublet the suit room to one Sh. Mohinder Gupta and that the respondent alongwith his family has been residing somewhere in Nihal Vihar near Police Post.
The respondent has admitted that respondent is living separately after marriage in Nihal Vihar. However, he has repeatedly said that his father is the tenant in the property in question and he is residing therein.
It is noteworthy that the respondent has also stated in his WS that the contents of para no.16 and 17 of the petition need no reply. It would be pertinent to mention here that para 17 of the petition states that the premises has been sublet to one Mohinder Gupta. Not specifically denying this averment amounts to an admission on part of the respondent regarding the contents thereof.
Even otherwise, the petitioner has not been cross examined much on the point of subletting except for the suggestion that no notice for subletting was served upon the respondent. Thus, firstly, the aspect of subletting has not been denied completely by the respondent and this is not even apparent in the cross examination of the petitioner. Secondly, the respondent has not led any evidence of his own to rebut the allegation.
The law on this point is clear. The Supreme Court Celina Coelho Pereira Vs. Ulhas Mahabaleshwar Kholkar, decided on 30 October, 2009, has carefully examined the meaning, scope and ingredients of 'Sub-Letting' under various rent control legislations in India. Justice Tarun Chatterjee has succinctly summarized the broad principles / guidelines to be followed in cases involving sub-letting of the premises by the tenant. The relevant extracts from this judgment are reproduced hereinbelow:
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"18. In the case of Associated Hotels of India Ltd., Delhi v. S.B. Sardar Ranjit Singh AIR 1968 SC 933, this Court held that when eviction is sought on the ground of subletting, the onus to prove subletting is on the landlord. It was further held that if the landlord prima facie shows that the third party is in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.
19. The aforesaid legal position was also noticed by this Court in the case of Smt. Krishnawati v. Hans Raj (1974) 1 SCC 280."
"21. While dealing with the mischief contemplated under Section 14(1)(b) of the Delhi Rent Control Act, 1958 providing for eviction on the ground of subletting, this Court in the case of Jagan Nath (Deceased) through LRs. vs. Chander Bhan And Ors. (1988) 3 SCC 57 held:
"The question for consideration is whether the mischief contemplated under Section 14(1)(b) of the Act has been committed as the tenant had sublet, assigned, or otherwise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord. There is no dispute that there was no consent in writing of the landlord in this case. There is also no evidence that there has been any subletting or assignment. The only ground perhaps upon which the landlord was seeking eviction was parting with possession. It is well settled that parting with possession meant giving possession to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the tenant; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there E No. 45/2009 Shyambir Tyagi vs Virender Gupta 18 of 19 must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to possession there is no parting with possession in terms of clause (b) of Section 14(1) of the Act. Even though the father had retired from the business and the sons had been looking after the business, in the facts of this case, it cannot be said that the father had divested himself of the legal right to be in possession. If the father has a right to displace the possession of the occupants, i.e., his sons, it cannot be said that the tenant had parted with possession""
In the present case, the petitioner has alleged that the possession of the premises is wholly with one Mohinder Gupta and the respondent has shifted to Nihal Vihar. The respondent has admitted that he is not residing in the premises in question but in Nihal Vihar and has not specifically denied that premises has been sublet to Mohinder Gupta. Thus, the petitioner has prima facie shown subletting of the premises. Now, it was upon the respondent to show that he still retained the right of possession or that the premises was not sublet. Rather, he has taken an entirely different stand that he was never a tenant in respect of the premises. This Court has already held the respondent to be the tenant qua the premises. As a corollary, it can be safely concluded that the respondent does not have the right of possession as himself admitted by him. Hence, the petitioner has discharged the initial burden to prima facie show subletting and the respondent has been unable to discharge the onus upon him to prove otherwise.
18. Therefore, the petition stands allowed on the ground of non payment of rent as well as subletting. As a consequence, respondent hereby stands evicted from the tenanted premises i.e. one room measuring about 10'-1" X 10'-8" on first floor of property bearing no. WZ-524/1 Basai Darapur, New Delhi-110015 as shown in red colour E No. 45/2009 Shyambir Tyagi vs Virender Gupta 19 of 19 in the site plan Ex. PW-1/12. However, to enable this Court to give a finding on all aspects in dispute, separate file be maintained to consider compliance of this order regarding payment of arrears of rent. It is expedient to do so as although eviction has already been ordered on the ground of subletting, non payment of rent is an entirely separate ground and it would be prudent for the Court to decide whether the respondent is entitled to the benefit u/s 14(2) of the DRC Act, regardless of eviction already ordered on the basis of another ground.
19. There shall be no order as to costs. Original documents, if any, be returned to the parties after filing certified copies thereof and against acknowledgment of receipt as per rules.
20. File be consigned to Record Room.
Announced in the open Court
On this 29th day of June, 2015
(SUMEDH KUMAR SETHI)
ACJ/CCJ/ARC(W)/29.06.2015
E No. 45/2009 Shyambir Tyagi vs Virender Gupta