Delhi District Court
Sh. Sri Krishan Bansal vs Smt. Anjula Rani on 30 August, 2010
In the court of Sh. Devender Kumar CCJ/ARC (N/E),
Karkardooma Courts Delhi.
UNIQUE I.D. NO.
CIVIL SUIT NO.670/09
IN THE MATTER OF :
1.SH. SRI KRISHAN BANSAL S/O LATE SH. RATTAN LAL
2. SH. BRIJ BHUSHAN BANSAL S/O SH. SRI KRISHAN BANSAL BOTH R/O 3/163, GALI GANGA RAM, SHAHDARA, DELHI 32 PLAINTIFFS Versus SMT. ANJULA RANI W/O SH. AJAY KUMAR R/O 3/128, GALI GANGA RAM, CHHOTA THAKURDWARA, SHAHDARA, DELHI 32 DEFENDANT Date of Institution of the Suit : 14.12.05 Arguments Heard : 30.08.10 Date of Judgment : 30.08.10 SUIT FOR PERMANENT INJUNCTION Judgment:
1. Vide this judgment, I shall dispose off a suit for permanent injunction filed by the plaintiffs against the defendant. The brief facts of the case are as under :
Suit No. :670/09 Page No. 1/13
2. Plaintiffs have alleged to be the tenants in respect of a shop in premises bearing no. 7/347, Anaz Mandi, Shahdara, Delhi 32 under the defendant. It is further alleged that the size of the tenanted premises is 80 X 12' and size of the front of the shop is measuring 30 X 12 which is covered with tin shed and rest of the shop is 50 X 12 and covered with roof made of Karris and wooden phattis. It is further alleged that originally plaintiffs were the tenants under Smt. Sudha Rani and Smt. Madhu Bansal and after purchasing the suit property from them by defendant, plaintiffs have become the tenant under the defendant. It is further alleged that the condition of the tenanted premises is deteriorated as the roof of the tenanted premises is in a state of half repaired and there is a seepage in the roof and water comes from the roof and damage the goods of the plaintiffs lying in the shop. It is further alleged that a hole has been developed in the portion of the roof and the roof has been inspected by an Architect and he has also suggested that only method to get the roof repaired is to replace the karries with new one. It is further alleged that the plaintiffs asked the defendant to get the suit property repaired, but the defendant avoided the same on one pretext or the other and on 09.09.05, plaintiffs sent a notice to the defendant for getting the roof repaired and the same was replied by the defendant on 15.09.05, but instead of taking any step for the repair of the roof, the defendant asked the plaintiffs to vacate the premises. It is further alleged Suit No. :670/09 Page No. 2/13 that on 23.09.05, plaintiffs brought masson and laborers to get the roof of the suit property repaired, but the defendant did not allow the plaintiffs to go up stair to get the roof repaired. By the way of present suit, plaintiffs have prayed that a decree of permanent injunction be passed in favor of plaintiffs against the defendant thereby restraining them not to interfere in causing the repair of the roof by replacing some rotton karries, ballies and phattas of the roof of the tenanted premises.
3. Defendant was served and filed WS thereby alleging that the suit is not maintainable in view of section 50 of DRC Act, 1958 as civil court does not have jurisdiction to entertain this suit. It is further alleged that the provisions of DRC Act will prevail over the provisions of the Transfer of Property Act as there is specific provision in the DRC Act for repairs and as such suit is not maintainable. It is further alleged that plaintiffs are not entitled to any relief of equitable injunction as they have not come to the court with clean hands and have suppressed the material facts. It is further alleged that the plaintiffs in the garb of present suit wants to make new construction in the shop in dispute as plaintiffs have made various additions and alterations in the shop in dispute and the site plan filed by the plaintiffs is wrong. It is further alleged that the suit shop is constructed more than 80 years ago and is unsafe and unfit for human habitation and same is also beyond repairs that is why defendant had issued a notice dated Suit No. :670/09 Page No. 3/13 02.07.05 to the plaintiffs regarding the condition of the suit shop and asked them to vacate the suit shop, but instead of vacating the suit shop, plaintiffs have filed the present suit. It is further alleged that the suit has been filed with malafide intentions and with ulterior motives just to harass the defendant and the same is liable to be dismissed with cost.
4. Plaintiffs have filed replication to the WS of the defendant and denied all the allegations of the defendant and reaffirmed their pleadings.
5. As per the pleadings of the parties, following issues have been framed vide order dated 240506.
ISSUES:
1. Whether the plaintiff is entitled to decree for permanent injunction, as prayed for ? OPP
2. Whether the suit of the plaintiff is barred by the provisions of DRC Act ?
OPD
3. Relief claimed
6. To prove the case, plaintiff no. 1 has examined himself as PW1 and closed PE. Defendant has also examined Sh. Ajay Kumar as DW1 and closed DE.
I have heard the arguments and perused the record. My issue wise findings are as under :
Suit No. :670/09 Page No. 4/13 7. ISSUE NO. 2
I am taking up issue no. 2 first as the same is regarding to the jurisdiction of this court. Arguments on this issue heard. It is submitted by counsel for defendant that jurisdiction of this court is barred U/s 50 of DRC Act, 1958 as plaintiff has remedy to move before the court of Ld. Rent Controller to get this relief to repair the premises as per section 44 of the Act. It is further submitted that the plaintiff instead of filing the petition for repairing U/s 44 of DRC Act before the court of Ld. RC has filed this suit to get the relief which cannot be granted before this court and the suit is liable to be dismissed.
On the other hand, counsel for plaintiff has submitted that this court has jurisdiction to entertain this suit as the plaintiff who is the tenant is not willing to press his relief U/s 44 of the DRC Act as the jurisdiction of this court is barred U/s 50 of DRC Act, but if the plaintiff is willing to get repaired the premises with his own cost, then the jurisdiction of this court is not barred. It is further submitted that this court has jurisdiction to entertain this suit and the same be allowed. In support of his arguments, Ld. Counsel for plaintiff has relied upon 1980 RLR 646 Phelps & Company Vs. Shalimar Paints, NDMC and Khajabi & Ors. Vs. Muruja Sahab, 1985 (1) RCR 138 Karnataka.
Suit No. :670/09 Page No. 5/13
I have heard the arguments and perused the record. I have perused the provisions of DRC Act with regard to repairing of the tenanted premises. As per section 44 of DRC Act, the duty has been cast upon the landlord to maintain the premises in habitable condition and if he is not maintaining th same, then the tenant can get served a notice upon the defendant thereby showing his intention that the premises should be repaired by landlord otherwise he will get it done himself at the cost of the landlord. Further the cost may be deducted from the rent as per the requirement of section 44 of DRC Act. Section 50 of DRC Act has oustled jurisdiction of the civil court in those cases where court of rent controller is competent to adjudicate the disputed facts. Now the matter comes as to whether the provisions of section 44 of DRC Act is only applicable when the tenant wants to get repaired the premises by his landlord with his cost. Further, it has to been seen whether the repairing includes required relief by the tenant in this case. The scope of section 44 and section 50 of DRC Act, 1958 has been explained by the Hon. High Court of Delhi in judgment relied upon by the Ld. Counsel for plaintiff. In 1980 RLR 646, it has been held by Hon. High Court of Delhi thereby comparing the Transfer of Property Act and Delhi Rent Control Act and the scope of injunctions. In this case, the Hon. Court has specifically dealt with section44 of DRC Act and has held that the tenant can always repair the tenanted premises and can Suit No. :670/09 Page No. 6/13 maintain the suit for injunctions against the landlord to restrain the landlord not to interfere in the repairing work of the premises, if the repairing is being done by tenant with his own cost. It is emphasized by Hon. Court that the repair work should not violate the bylaws of statutory authority of which permission is required. Further in 61 (1996) DLT 584, Lekhram Khari Vs. Krishan Kumar Vohra, Hon. High Court of Delhi has again emphasized and held that the relief of permanent injunction to restrain the landlord not to interfere in the repairing work is not barred under the provisions of section 44 of the Act as it is only attracted where the tenant seeks to have premises repaired at the cost of the landlord. In view of the above said law, it is clear that the tenant can seek the relief of permanent injunction to restrain the landlord to not to interfere in the repairing work being carried out by him.
So far the term 'repair' is concerned, it has been defined by the Hon. High Court of Karnataka in 1985 (1) RLR 137 that the roof of the house which is in decayed condition require replacement comes within the work of 'repair'. In view of this definition of the word 'repair', it is clear that even the replacement of existing roof also include within the term of 'repair'. In view of above said law laid down by the Hon. Courts and the joint reading of section 44 and 50 of DRC Act, 1958, it is clear that the suit of injunction is not barred to restrain the landlord from interfering in the repairing work Suit No. :670/09 Page No. 7/13 of the plaintiff /tenant and this court has jurisdiction to entertain this suit. The defendant has failed to discharge the onus to prove this issue and issue is decided in favor of plaintiff and against the defendant. 8. ISSUE NO. 1
The onus to prove this issue was fixed upon the plaintiff and to discharge the onus, the plaintiff no. 1 has examined himself as PW1 and has also cross examined the DW1. The main case of the plaintiff is that the roof of the tenanted premises is in decayed condition and defendant who is the landlord and is under obligation to maintain the suit premises, is not performing his duties to maintain the same due to the plaintiff is willing to repair the premises. Whereas the defendant has taken the plea that the premises is old one and was constructed about 80 years back and is in depliated condition and cannot bear the burden of repairing, due to the plaintiff is not entitled for the same.
After going through the testimonies of witness of both parties and in view of the case of the parties, it is clear that the suit premises is old one and PW1 has not denied during his cross examination that he cannot say if the shop in dispute was constructed about 100 years ago. PW1 has further deposed in his cross examination that the karris of the roof are in broken stage and about 20 25 karris out of 3540 karris of the roof are in broken condition for the last 10 years. It is further deposed that he has not got Suit No. :670/09 Page No. 8/13 prepared the estimate cost of getting the shop repaired. PW1 has denied that the condition of the roof is beyond repairing, but he has admitted that he had not tried to get prepared the estimate for carrying out the repairs in the shop till date. It is further deposed that he had taken masons and laborers to the shop on 23.09.05, but the defendant did not allow them to do any work. It is further deposed that the above said masons and laborers remained at the spot for 34 days and kept on sitting at his shop, but this fact could not be mentioned in the plaint. It is further deposed that he had given the money to the masons to purchase the material for repair of the premises.
On the other hand, DW1 is the husband of the defendant who has not appeared before this court to depose and has executed power of attorney in favor of her husband to depose before this court. The power of attorney is Ex. DW1/1. DW1 has deposed that he was not present at the time of letting out the suit property and even not familiar with the terms and conditions of the tenancy, however, DW1 has admitted that the roof of the shop is covered with roof made of karri and wooden fatti and whatever additions and alterations were made in his presence were made about 25 years back. It is further deposed that the karri of roof are in broken condition and roof can be replaced only with new construction and the replacement of broken Karris is not possible. It is further deposed that he has seen the roof from the upper side and no one can moved on the roof. It Suit No. :670/09 Page No. 9/13 is admitted that the roof is an old one, that is why, karris of the roof are damaged. It is further deposed that he did not get the roof of the suit premises repaired except the order of this court. It is further admitted that the plaintiff never asked the defendant to get repaired the roof. It is further admitted that the photographs Ex. DW1/P1 to DW1/P3 are of the shop in dispute and photographs Ex. PW1/2 to PW1/8 are also of the shop in dispute. It is further deposed that as per the photographs the portion shown in the photographs are in repairable condition.
After going through the testimony of both witnesses, it is clear that the kadi of the roof of the tenanted premises are in broken condition, but the same is not beyond repairing. I have already given my findings on issue no. 2 that the replacement of roof is also covered under the definition of repair and it has already been admitted by DW1 that the roof of the tenanted premises require replacement with the new one. Though the plaintiff has not got prepared any estimate of the expenses which are likely to be occurred on the maintenance of the premises, yet he has tried to get repaired the premises by bringing two mason and laborers at the spot on 23.09.05.
The plaintiff has also filed the report of architect which is mark A that the roof required replacement of the entire broken karris etc. In view of the above said facts and circumstances of the case, it is clear that the roof of the tenanted premises require replacement and plaintiff has already deposed in Suit No. :670/09 Page No. 10/13 his examinationinchief that he is willing to bear the entire expenses of the repairing and after making repairing, he cannot claim any expenses from the defendant/landlord in case of vacating the suit property in future.
The plaintiff with his own testimony has already proved on record that the premises is required repairing and the defendant is putting unnecessary obstacles in the repairing, whereas defendant has not examined herself as defence witness before this court and DW1 was not aware about the material facts. The defendant has withheld the best evidence which was available to him thereby examining himself being landlord and DW1 has not proved the material facts. Rather he has admitted to the case of the plaintiff to some extent. As such, the plaintiff has proved that he is entitled for the relief of permanent injunction to restrain the defendant from causing any interference in the repairing work of the tenanted shop/roof of the shop. The plaintiff is yet to get the estimate of the amount which is likely to spent on the repairing, but it cannot be a ground for refusing the relief to the plaintiff. As such, the plaintiff has discharged the onus to prove this issue and issue is decided in favor of plaintiff against the defendant.
9. RELIEF:
The plaintiff has already proved that he is entitled for the relief of repairing the roof of the shop or to replace it, but it is also to be seen that the plaintiff should not take the liberty to do unnecessary construction in the Suit No. :670/09 Page No. 11/13 suit property in the garb of this order besides the prayers of this suit. The plaintiff shall get prepared the roof of the shop including replacement within the period of six months and not beyond it subject to compliance of bylaws of MCD. Further the plaintiff shall not carry out any repairing except the roof as shown in the site plan Ex. PW1/1. With these observations, suit is disposed off. No such order of cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court (Devender Kumar)
300810 CCJ/ARC/MM
Suit No. :670/09 Page No. 12/13
C.S. No. : 670/09
30.08.10
Pr. : Counsels for both parties
Vide separate judgment, suit of the plaintiff has been disposed off. Decree sheet be prepared accordingly. File be consigned to record room.
(Devender Kumar) CCJ/ARC/MM 30.08.10 Suit No. :670/09 Page No. 13/13