Ranjit Kaur & Anohter vs S. Manmohan Singh (Now Deceased) ...
2011 Latest Caselaw 5246 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Judgment reserved on: 18.10.2011
                               Judgment delivered on: 31.10.2011

+            CM(M) No. 1284/2007 & CM No. 12865/2007

RANJIT KAUR & ANOHTER                          ........... Petitioners
                  Through:          Mr. B.L.Chawla, Advocate.

                      Versus

S. MANMOHAN SINGH (NOW DECEASED)
THROUGH LEGAL HEIRS                  ..........Respondent
                 Through: Mr. M.S. Butalia, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?

    2. To be referred to the Reporter or not?                 Yes

    3. Whether the judgment should be reported in the Digest?
                                                         Yes

INDERMEET KAUR, J.

1 This petition has impugned has the two concurrent findings

of the two courts below i.e. orders of the Additional Rent

Controller (ARC) dated 15.07.2004 and the order of the Rent

Control Tribunal (RCT) dated 13.08.2007 whereby the eviction

petition filed by the landlord Manmohan Singh under Section 14

(1)(a) of the Delhi Rent Control Act (DRCA) seeking eviction of

suit property i.e. premises No. WZ-33. Varinder Nagar, New Delhi

for non-payment of rent had been decreed.

2 The petitioner is stated to be the owner of the aforenoted

suit property. The property had been let out to Karam Singh; after

his death his widow Ranjit Kaur and son claimed to be the tenants.

Rate of rent was Rs.266/- per month which was exclusive of

electricity and other charges. It was a commercial tenancy; inspite

of notice of demand dated 30.09.1990 arrears of rent were not

paid; benefit of Section 14 (2) of the DRCA was given to the

tenants by the then ARC vide order dated 19.09.1998. Contention

before the ARC was that the tenant has not paid rent w.e.f.

August, 1999 to January, 2000; this was inspite of service of legal

notice dated 16.02.2001; there was no legal tender of rent; on

26.03.2001, a partial amount of rent had been sent but there was

no deposit of rent under Section 27 of the DRCA. Present petition

was accordingly filed.

3 Common written statement was filed; contention was that

the entire rent had been paid and tendered to the landlord.

Further contention was that Daljeet Singh, another son of Karam

Singh had also inherited the suit property and the eviction petition

was bad for non-joinder of Daljeet Singh. It was denied that any

rent is due and payable to the landlord.

4 Oral and documentary evidence was led before the Rent

Controller. It is an admitted position that the benefit of Section 14

(2) had been given to the tenant vide judgment of the ARC dated

19.09.1998 (Ex.PW-1/A). The only dispute which was to be dealt

with by the ARC related to the fact as to whether the rent had

been paid/tendered w.e.f. August, 1999 to January, 2000. Ex. PW-

1/B was the legal notice dated 16.02.2001 postal receipt of which

had been proved as Ex. PW-1/C; there was also no dispute to the

receipt of this legal notice; the tenant had appeared in the witness

box as RW-1 and his contention was that he had paid the arrears

of rent w.e.f. August, 1999 to January, 2000 and the same has

been deposited in the Court of Ms. Mamta Tayal, the then ARC,

Delhi. On enquiry by the petitioner, it was revealed that no such

rent had been deposited; this was revealed on 28.08.2001 when

the then ARC Dharmesh Sharma had requisitioned the record. The

ARC was of the view that the tenant has failed to prove that he

has made the legal tender of rent for the disputed period i.e. from

August, 1999 to January, 2000 and he already having availed of

the benefit of Section 14 (2) of the DRCA, he was liable to be

evicted under Section 14 (1)(a) of the DRCA. Eviction order was

accordingly passed against the tenant by the ARC.

5 In an appeal filed before the RCT under Section 38 of the

DRCA, additional evidence was led before the RCT. This

comprised of one sole testimony of the second son of the tenant

namely Daljeet Singh. Another son of the tenant namely Harpreet

Singh has been examined as DW-1 in the trial Court. Relevant

would it be to extract the testimony of both these witnesses.

Harpreet Singh as noted supra has appeared in the trial Court as

DW-1. In his cross-examination he has stated that he had tendered

the arrears of rent by post and on refusal, the rent was deposited

in the Court; rent was being paid half yearly; he denied knowledge

as to whether rent had been deposited from August, 1999 to

January, 2000; he also denied the knowledge that the rent was

being paid on a month to month basis. This was the version of

Harpreet Singh in the trial Court. Before the first appellate court,

the second son of Karam Singh namely Daljeet Singh had entered

into the witness box. In his cross-examination he has stated that

the rent was being given to the clerk of the Advocate a number of

times to deposit the same in the Court; his mother was not

maintaining the record of the amount given to the clerk; his

brother also used to pay money to the clerk for deposit of rent. Ex.

AW-1/1 to Ex. AW-1/6 were proved in the version of Daljeet Singh.

Ex.AW-1/1 is a money order No. 742 sent for payment of arrears

of rent for the months of May, June and July, 1999. This document

is not relevant for the controversy in question as the disputed

period in the present case relates to payment of arrears of rent

between August, 1999 to January, 2000. Ex.AW-1/2 is also a

money order for the aforenoted period i.e. May, June and July,

1999 informing the landlord that the amount for this aforenoted

period is deposited in the Court of ARC; further rent is being sent

for August, 1999 to January, 2000. Ex.AW-1/5 is the money order

sent for February, 2000 to September, 2000; again this document

is not relevant as it does not relate to the disputed period i.e.

period between August, 1999 to January, 2000. The only relevant

document would be Ex.AW-1/2. The deposition of Daljeet Singh

qua Ex.AW-1/2 was that he had given the rent to his Advocate

Kamlesh Kumar in connection with this case but he does not

remember the exact date; he had gone with his mother to the

counsel; a complaint was also filed before the Bar Council against

Kamlesh Kumar which was dismissed. He has denied the

suggestion that the rent for the disputed period i.e. August, 1999

to January, 2000 was not given to the clerk of the counsel; his

further contention was that this money was not given by him

personally.

6 Deposition of the aforenoted witnesses show that Harpreet

Singh's version was that he had deposited the rent in the Court

whereas Daljeet Singh had stated that his mother was giving the

rent to the clerk of the Advocate for deposit in the Court; their

mother was admittedly not examined; both are unaware as to

what was the amount which was deposited; DW-1 i.e. Harpreet

Singh and AW-1 Daljeet Singh are also not clear as to whom this

amount was given i.e. whether to the Advocate Kamlesh Kumar or

to his clerk. Relevant would it be to state that this controversy

about the rent not having deposited in the Court of the ARC had

surfaced for the first time before the Rent Controller; however

even before the first appellate Court not a whisper has been

stated in the affidavit/deposition of Daljeet Singh that either he or

his brother Harpreet Singh or his mother had paid the rent either

to their counsel or to his clerk for deposit to be made before the

court of the ARC. This testimony (as noted hereinabove) has only

been elicited in the cross-examination of Daljeet Singh; Daljeet

Singh is categorical; he had not personally made any payment

either to the counsel or to the clerk for deposit in the Court of

ARC; his brother Harpreet Singh is also unaware of this; their

mother Ranjit Kaur has not come to the witness box. Daljeet Singh

has in fact admitted that his mother was not maintaining the

record of the amount which used to be given to the clerk of the

Advocate; DW-1 is also unaware of any such detail. RCT in these

circumstances had correctly noted that neither the Advocate nor

the clerk of the said Advocate had been examined by the tenant to

substantiate this submission that he had made payment for

deposit of rent to the Advocate but it was the Advocate who had

fraudulently not deposited the said amount. The contention of the

tenant on this ground also is that he had filed a complaint against

his Advocate for misleading him and having played a fraud upon

him with the Bar Council which complaint had been dismissed.

Filing of complaint against the Advocate with the Bar Council and

the dismissal of the same is also not a part of the court record. In

these circumstances, the impugned order had correctly noted that

there was no valid or legal tender of rent by the tenant in terms of

Section 14 (1)(a) of the DRCA.

7 It is further relevant to state that there was no contract of

tenancy between the parties either in writing or oral. The tenancy

was on a month to month basis. Under Section 26 of the DRCA in

the absence of any contract to the contrary, the tenant is liable to

pay the rent before the 15th day of each succeeding month. The

tenant was admittedly in arrears of rent for August, 1999 to

January, 2000. Legal notice dated 16.02.2001 is not disputed; this

legal notice alleged that there was no legal and valid tender of

rent for the aforenoted period. On 20.03.2001 only a partial

amount of rent had been sent; this has been stated in the eviction

petition itself. It was now open for the tenant to make the deposit

of the arrears of rent within two months from the date of receipt

of the notice; even if it is presumed that the landlord was not

accepting the rent, tenant could have deposited the same under

Section 27 of the DRCA which provision enables him to make the

payment of arrears of rent before the ARC but this has not been

done. The submission of the petitioner that he had paid the money

to the clerk of his counsel who in turn has played a fraud upon

him is mis-founded. In the evidence discussed supra this could not

be proved and the additional evidence which was specifically

permitted to be led before the first appellate court on this score is

also silent on this aspect. As noted supra, in the additional

evidence of Daljeet Singh, not a whisper has been said about this

version.

8 Reliance by the learned counsel for the petitioner on the

judgments reported in 20 (1981) DLT 116 Budh Prakash Sethi Vs.

Sumitra Devi & Others and 135 (2006) DLT 383 Ram Kumar

Gupta Vs. Durga Devi (Deceased) Through L.Rs. & Another is

misplaced. Both these judgments have only laid down the law of

Section 14 (1)(a) of the DRCA; each case has to be decided on its

own factual matrix. In the instant case, even after the receipt of

legal notice there was no legal and valid tender of entire arrears

of rent. It is also not in dispute that the benefit of Section 14 (2) of

the DRCA has already been accorded to the tenant. In these

circumstances, the eviction order dated 15.07.2004 suffers from

no infirmity.

9 In 170 (2010) DLT 7 Raghbir Singh Vs. Sheela Wanti &

Another , a Bench of this Court had noted that the amendment

which has been inserted by the Act of 1988 in Section 14 (1)(a)

read with Section 26 of the DRCA makes it abundantly clear that

rent is to be paid month by month i.e. in those cases where there

is no contract to the contrary in the absence of which tenant is

also liable to pay interest thereon.

10 This Court is also conscious of the fact that the right of

second appeal which was envisaged under Section 39 of the

DRCA has since been abrogated; jurisdiction of this Court under

Article 227 of the Constitution of India is not to be substituted as

an appellate forum. Unless and until there is a perversity or a

manifest injustice which has accrued to a party, no interference is

called for.

11 The impugned order in these circumstances decreeing the

eviction petition of the landlord under Section 14 (1)(a) of the

DRCA suffers from no infirmity. Dismissed.

INDERMEET KAUR, J

OCTOBER 31, 2011

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