Delhi High Court
Rakesh Jain vs Hemlata Sharma on 17 October, 2014
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 17th October, 2014
+ RSA 302/2014 & C.M.APPLs.17316-17/2014
RAKESH JAIN ..... Appellant
Through: Mr. S.N. Gupta, Advocate
versus
HEMLATA SHARMA ..... Respondent
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
Sunil Gaur, J (ORAL)
In this second appeal, the challenge is to the impugned order of 26th
August, 2014 which reduces the decretal amount from `50,443/- to
`42,643/-. Respondent-plaintiff's suit for recovery of `50,443/- was
decreed by trial court vide judgment of 30th January, 2014.
The facts of this case as noticed in the impugned judgment are as
under:-
"Respondent has filed a civil suit for recovery of
Rs.50,443/- alongwith pendente lite and future interest @
18% pa on the premise that he is the owner of property
bearing No.41, Subhash Market, Kotla Mubarakpur, New
Delhi and a portion whereof i.e. one room with kitchen and
common user of WC and bathroom was given on rent to
RSA 302/2014 Page 1
appellant on a monthly rent of Rs.825/- and a sum of
Rs.475/- monthly was fixed as electricity charges and water
charges were payable by appellant to concerned authority
as per the consumption. The appellant was not regular in
payment of rent and other charges and also failed to hand
over the possession of premises in question, leading
respondent to file an eviction petition No.E459/2009 which
was allowed and during execution proceedings whereof the
possession of leased premises was taken on 03.12.2012
through the Bailiff appointed by the Court. Appellant had
deposited the rent of demise premises only till 30.09.2009 in
DR Petition No.283/2009. The appellant did not pay the
arrears of water charges to the tune of Rs.7,543/- as per the
revised bill, as well as the monthly rent and electricity
charges for the period of 01.10.2009 till 03.12.2012 to the
tune of Rs.50,443/- despite demand. It is for recovery of
said dues respondent filed the suit before learned Trial
Court."
The findings of the First Appellate Court in the impugned
judgment are as under:-
"13. I have carefully gone through the impugned
judgment and the documents placed on record. Perusal of
the Trial Court Record shows that the eviction order was
passed against the appellant by the Court of Sh Balwant Rai
Bansal, the then ld. ARC vide judgment dated 05.03.2012
RSA 302/2014 Page 2
wherein the appellant herein was proceeded ex parte as he
failed to file written statement despite opportunity being
granted by the Ld. ARC and stopped appearing in the
matter. Perusal of said judgment shows that even in the
eviction petition the respondent herein had averred that
appellant herein was working in Ministry of Science and
Technology and after allotment of a government
accommodation in his name, he along with his family had
shifted to said accommodation i.e. Flat no. 1343, Sec 7
M.B.Road Pushp Vihar New Delhi after leaving the tenanted
premises in a locked condition. Hence, it is clear that
appellant herein who was duly served in the said eviction
petition was having sufficient opportunity to contest the said
claim of the respondent and he having preferred not to
contest the said eviction petition, cannot be allowed to take
said plea in the suit filed for recovery of arrears of rent. The
appellant has raised the contention that he cannot be
fastened with the liability of the arrears of rent for the
period during which he was not even in possession but
considering the fact that even after vacating the tenanted
premises he failed to handover the physical possession of the
same to the landlord i.e. the respondent herein, he cannot be
absolved from the liability of paying the rent for the period
during which the landlord was deprived of enjoying the
possession of the tenanted premises due to said conduct of
the appellant. The plea taken by the appellant that he had
RSA 302/2014 Page 3
already handed over the possession of the tenanted premises
to the respondent has been rightly rejected by the Trial
Court as had it been so, then why the appellant did not
inform the Court of ld. ARC where the eviction petition was
filed by the respondent herein for seeking possession of the
tenanted premises especially when respondent was well
aware of pendency of said proceedings. Perusal of the
eviction order clearly shows that the respondent had
appeared before the Court of Ld. ARC but, he failed to file
the written statement and was subsequently proceeded ex
parte for non appearance.
14. Perusal of the water bill Ex.PW1/4 shows that the water
meter was in the name of the appellant and the bill is
relating to the period w.e.f 12.07.2012 till 29.10.2012 i.e.
prior to 3.12.2012 when the actual physical possession of
the property was taken by the respondent through bailiff
appointed by the Court during the execution proceedings.
The plea taken by the defendant that since the water bill
stands unpaid, therefore, liability to pay the amount of said
bill cannot be fastened upon him is devoid of any merits
because the appellant was merely the tenant in the property
which actually belongs to the respondent and any electricity
or water bill raised in respect of the meter installed in said
premises are recoverable from the owner of the premises."
During the hearing of this appeal, it was urged by the learned
RSA 302/2014 Page 4
counsel for the appellant that the substantial question of law which arises
in this appeal is whether the appellant is liable to pay the rent for the
period the premises were lying locked.
Upon hearing and on perusal of impugned judgment, trial court's
judgment and the material on record, I find that the aforesaid question
raised in this appeal already stands answered in the impugned judgment
by the First Appellate Court. Although the appellant had vacated the
tenanted premises, but he had failed to hand over its physical possession
to respondent-landlord and so, appellant cannot be absolved of his
liability to pay the rent for the period in question.
During the course of hearing, learned counsel for appellant had
informed that out of the outstanding amount of `26,000/-, appellant has
already deposited a sum of `20,000/- with the learned Executing Court.
This by itself will not have any impact on this appeal. Impugned order
does not suffer from any perversity or infirmity.
In the considered opinion of this court, no substantial question of
law arises in this appeal and hence, this appeal is dismissed with no order
as to costs.
The appeal and the applications are accordingly disposed of.
(SUNIL GAUR)
JUDGE
OCTOBER 17, 2014
srb
RSA 302/2014 Page 5
