Delhi District Court
Sh. Joginder Lal Kuthiala vs Sh. Vinay Saigal on 18 September, 2021
IN THE COURT OF SHRI DINESH KUMAR SHARMA :
PRINCIPAL DISTRICT & SESSIONS JUDGE/RCT,
PATIALA HOUSE COURTS: NEW DELHI
RCT Nos. 112/16 & 113/16
1. Sh. Joginder Lal Kuthiala
2. Sh. Jatinder Lal Kuthiala
Both S/o Late Sh.Bishan Lal Kuthiala
3. Smt. Sushma Kuthiala
W/o Sh. Joginder Lal Kuthiala
All R/o: 1, Canal Road
Jammu180001(J&K) ....Appellants
Versus
1. Sh. Vinay Saigal
2. Sh. Vijay Saigal
3. Sh. Raju Saigal
All S/o Sh. J. P. Saigal
All At: B50, Kuthiala Building
Connaught Place, New Delhi ......Respondents
Date of filing of appeals : 25.02.2015
Date of arguments : 04.09.2021
Date of judgment : 18.09.2021
JUDGMENT
1. Vide this common judgment, I shall dispose of the aforesaid appeals bearing RCT nos. 112/16 & 113/16, filed under Section 38 of The Delhi Rent Control Act, 1958 ("DRC Act" in short) by the appellants, challenging the impugned judgments dated RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 1 of 43 20.01.2015 & 29.01.2015.
2. The Ld. Rent Controller vide impugned orders dated 20.01.2015 & 29.01.2015 held that the respondents/tenants are liable for eviction under Section 14(1)(a) of DRC Act, however, it dismissed the petitions under Section 14(1)(b),(c)&(j) of DRC Act.
3. In backdrop, two eviction petitions bearing nos. 93/09 and 94/09 were filed in respect of the tenanted premises i.e. B50 & B51, Kuthiala Building, Connaught Place, New Delhi, for eviction under Section 14(1)(b)(c)&(j) of DRC Act.
4. The facts in brief as alleged by the petitioners/landlords that premises bearing no. B50, Kuthiala Building, Connaught Place, New Delhi, was let out by them to M/s Vinay Saigal Vijay Saigal @ Rs.125/ per month.
5. In respect of premises bearing no. B51, Kuthiala Building, Connaught Place, New Delhi, it was an old tenancy and Vinay Saigal, Vijay Saigal and Raju Saigal are the tenants in respect of the premises in dispute.
6. I propose to dispose of the aforesaid appeals bearing RCT No. 112/16 & 113/16 vide a common order as the ground of eviction taken in both the eviction petitions are identical. The only difference is that premises B50, as per the landlords', was let out to M/s Vinay Saigal Vijay Saigal (partnership firm) and premises B51 is stated to RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 2 of 43 have been let out to Vinay Saigal, Vijay Saigal and Raju Saigal.
7. In regard to letting out of the premises B50, this court in a separate appeal RCT Nos. 118/16 & 128/16 (Eviction Petition Nos. 18/09 & 93/09), has inter alia held that premises no. B50 was let out to late Sh. J.P. Saigal and after his death, his sons inherited the tenancy rights.
8. Similarly, in respect of premises B51, the plea of the petitioner is that the premises in dispute was in fact let out to Sh. J.P. Saigal and after his death, his all three sons inherited the tenancy, whereas, the plea of the tenant is that a fresh tenancy was created in favour of Sh. Vinay Saigal, Sh. Vijay Saigal and Sh. Raju Saigal. The contention is that whether the tenancy was created orally or vide a rent note dated 01.01.1979, shall be dealt with in further part of the judgment.
9. In both the cases, the plea of the petitioner is that the premises in dispute was let out for office purpose and respondents have unauthorizedly and without the consent of the petitioners/landlords changed the user of the premises to that of a hotel. The case of the tenant is that premises was let out for residentialcumcommercial purpose.
10. It has further been stated that premises B50 consisted of five rooms, one kitchen, open terrace, one bath and WC. The premises B51 consisted of four rooms, one kitchen, open space, terrace, one RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 3 of 43 bath and WC. However, the respondents/tenants have unauthorizedly and without the consent of petitioners or local civic authority made material alterations and additions. In premises B50, the respondents allegedly have constructed five rooms, two store and one reception area and have dismantled the kitchen, bath and WC. Whereas, In premises B51, the respondents allegedly have constructed six rooms, four toilets and have also covered the open space. The petitioners/landlords have alleged that the respondents/tenants have changed the user of the premises and a hotel namely Metro Park is being run from the premises and a Pvt. Ltd. company under the name and style of V.V.R. Hotels Pvt. Ltd. is also having its activities from the premises. It has further been stated that the respondents have made several additions and alterations in the premises. The petitioners filed the site plan showing the present position and the site plan showing the premises at the time of letting out. The petitioners alleged that the additions and alterations have been carried out without the consent of the petitioners or the local civic authority. However, the date of such illegal and unauthorized constructions and change of user, were not in their knowledge.
11. In respect of ground under Section 14(1)(a) of DRC Act, the same is not being discussed herein as the same has been dealt with differently in the appeals against judgment under Section 14(1)(a) of DRC Act.
RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 4 of 43
12. The petitioners have alleged that the respondents have misused the premises for a purpose other than for which it was let out without obtaining the consent of the petitioner in writing or otherwise. The respondents allegedly used the premises for running an hotel by making several additions and alterations, whereas, the premises was let out for office purpose. Petitioners further alleged that the additions and alterations carried out by the tenants is causing great damage to the building. The building itself is an old building and existed much prior to the partition of the country. The use of the premises for Hotel is otherwise, detrimental to the premises and interest of the landlords. Petitioners further alleged that conversion of the office premises to hotel is otherwise in contravention of Municipal Laws. The hotel is being run without the proper licence and sanction from the Municipal authorities and without registration under the Sarais Act. The respondents have also failed to stop the misuser despite service of demand notice dated 07.02.2007. The petitioner further stated that respondents have sublet, assigned or otherwise parted with the possession of the premises or part thereof without the consent in writing or otherwise from the petitioners. It is submitted that a Private Limited Company under the name and style of M/s V.V.R. Hotels Pvt. Ltd. is also being run from the premises. The respondents have failed to furnish any information regarding the constitution of the said company. It was further stated that earlier also, a civil suit was filed by the petitioners in which the correct site plan was filed and it had not RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 5 of 43 met any objection from the side of the respondents. The petitioners have sought eviction of the respondents under Section 14(1)(b)(c)&(j) of the DRC Act.
13. In the written statement, the respondents/tenants M/s Vinay Saigal Vijay Saigal took a plea that the premises B51 was let out to Sh. J.P. Saigal, who died on 30.04.1987, leaving behind three sons namely Sh. Vinay, Sh. Vijay and Sh. Raju Saigal and all the three brothers are the tenants in the tenanted premises. It was stated that M/s Vinay Saigal Vijay Saigal is not a tenant in the dispute.
14. In respect of allegations under Sections 14(1)(b)(c)&(j) of the DRC Act, the respondents denied that the premises were let out for office purpose. It is asserted that the premises was let out for residentialcumcommercial purpose and is being used for the same purpose. The respondent admitted that at one point of time, the premises was used for running an hotel, however, the same was stopped long ago. The correctness of the site plans filed by the petitioners were denied.
15. It was stated that M/s V.V.R. Hotels Pvt. Ltd. is a Private Limited Company in which the total controlling interest vest in three brothers namely Vinay Saigal, Vijay Saigal and Raju Saigal and none other than three brothers have any interest in the said company. The subletting was denied and it was stated that all the three brothers i.e. tenants continued to be in the possession of the premises in dispute. RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 6 of 43
16. The respondents also denied to have made any additions or alterations in the premises. It was stated that construction now existing at the spot is not even as per the site plan marked Y. The respondent denied that the use of the premises has caused substantial damage to the demised premises. The partition of the rooms were also denied, however, it was stated that a temporary partition in a room does not amount to causing substantial damages.
17. Sh. Raju Saigal/respondent in the separate written statement also took a plea that he as well as Vinay Saigal and Vijay Saigal are the tenants in the premises in dispute. The premises was let out for residentialcumcommercial purposes and is being used for the same purpose. The plea taken by the remaining two respondents in the written statement have been reiterated by the respondent Raju Saigal in the written statement and therefore, has not been repeated herein for the sake of brevity.
18. In eviction petition No. 94/09 relating to premises no. B 51, the respondent stated that the premises was let out for residential cumcommercial purposes and is being used for the same. It was stated that at one time, the respondent started using the premises for hotel purpose, however, the same has been stopped long ago. The use of the premises for running a hotel is a commercial purpose and cannot by any stretch of imagination be said as misuser. The correctness of the site plan has been denied. The respondent further stated in the RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 7 of 43 written statement that the premises in dispute were let out for residentialcumcommercial purposes vide rent deed dated 01.01.1979 to the respondents. The original rent deed remained in possession of the landlords. The original rent deed was on a stamp paper of Rs.25/ whereas the copy of the same was prepared on a stamp paper of Rs.2/ and both the documents were signed by the parties.
19. In the Written Statement, the plea regarding subletting, misuser and substantial damage were denied and the identical defence was taken, which was taken in the written statement filed in eviction petition relating to premises bearing No. B50.
20. The petitioners filed the replication denying the averments made in the written statement and reaffirming the submissions made in the petitions.
21. Relating to premises no. B50, the evidence were led in eviction petition Nos. 18/09 and 93/09, which were consolidated vide order dated 29.10.2010.
22. PW1 Sh. Bihari Lal Walia tendered his evidence by way of affidavit dated 13.05.2011 as Ex.P1. In the affidavit, PW1 stated that he is the attorney and manager estate of the petitioners and in their services for the last 40 years and has placed on record the Special Power of Attorney as Ex.PW1/1 and PW1/1A. He further deposed that he is looking after and managing the properties of the petitioners in New Delhi and well conversant with the facts of the case and able, RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 8 of 43 competent and authorised to depose about the same. PW1 further stated that he deals with all the tenants of the petitioners and collects rents, issue receipts and also deals with local authorities on behalf of petitioners and as such, he has direct knowledge of the facts and circumstances of the present case. PW1 stated that the premises were let out only for the office purpose, however, the tenants unauthorizedly and without the consent of the petitioners sublet, assigned and parted with the possession of the premises in dispute and changed the user of the premises and a hotel is being run under the name and style of M/s Hotel Metro Park and a private company M/s V.V.R Hotels P. Ltd. is also having its activities at the demised premises. The tenants allegedly sublet, assigned and parted with the possession of the premises or part thereof to M/s V.V.R. Hotels P. Ltd., without the consent of the petitioners.
23. Petitioners further stated that respondents have unlawfully and without the consent of the petitioners made several additions and alterations, which has impaired the value and utility of the premises and the building as a whole. It has further been submitted that respondents were let out four rooms, one kitchen, open space, terrace, one bath and WC but the respondents have unauthorizedly and without the consent/permission of the petitioners and the local authorities, demolished the said construction and constructed six room, four toilets, kitchen and have also covered the open space to use the RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 9 of 43 property for hotel purposes by providing facilities of wash basins, toilets etc. to the customers. It is further stated that the premises is not in same condition as it was originally let out. The copy of the site plan showing the original condition has been placed on record as Ex.PW1/2 and the site plan showing the altered/present condition has been placed on record as Ex.PW1/2A. The petitioner also alleged that the respondents have made two separate flats no. B50 and B51 into one unit and by putting additional load on the old walls and foundations etc. have structurally damaged the tenanted premises. PW1 further stated that the respondents have allegedly sublet, assigned and otherwise parted with possession or part thereof, to subtenants.
24. In eviction petition no. 94/09 relating to premises no. B51, PW1 in his affidavit dated 13.05.2011 tendered his affidavit as Ex.P1 and made the identical averments regarding the sublet, change of user of the premises and causing substantial damages to the tenanted premises.
25. The respondents in Eviction Petition No. 94/09 relating to B51 filed an affidavit of Sh. Vinay Saigal. In the affidavit Ex.RW1/A, it was stated that premises was let out to the respondents w.e.f. 01.07.1979. A rent deed dated 01.01.1979 was executed on a stamp paper of Rs.25/ and a copy thereof was prepared on a stamp paper of Rs.2/. The said original rent deed was signed and executed by Sh. Jishan Lal Goel on behalf of landlords Smt. Harvansh Kumari, RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 10 of 43 Joginder Lal Kuthiala and Jatinder Lal Kuthiala and was also signed by the respondents. The rent deed executed on the stamp paper of Rs.25/ was kept by Sh. Jishan Lal Goel on behalf of the landlords and the copy prepared on a stamp paper of Rs.2/ was handed over to the respondents after execution of the same. The rent deed was placed on record as Ex.RW1/1. RW1 further stated that the site plan Ex.PW1/2 & PW1/2A are not correct. It was stated that the construction existing in the premises in dispute was never as per the said two plans. The respondent stated that the site plan Ex.RW1/2 is the correct site plan as per the construction existing in the premises in dispute and the said construction has been existing since the time of letting out the premises in dispute. No addition and alterations have ever been carried out in the premises in dispute and the construction existing at present is the same as it was at the time of letting out. It was further stated that B50 & B51 have never been converted into one unit and respondents have not caused any substantial damage to the premises in dispute.
26. RW1 further stated that the premises in dispute were let out to the respondents for residentialcumcommercial purposes and the same are being used for the said purpose. It is further stated that respondents had at one time started using the premises in dispute for hotel purposes, however, the said user had also been stopped long time ago. It was denied that the premises was let out for office purposes.
RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 11 of 43
27. It was further stated that respondents have always been in actual and physical possession of the premises in dispute and the same has not been sublet, assigned or otherwise parted with possession of any portion of the premises in dispute. It was stated that M/s V.V.R. Hotels Pvt. Ltd. is a private limited company in which all the three brothers i.e. Vinay Saigal, Vijay Saigal and Raju Saigal have controlling interest. RW1 further stated that respondents never ceased to be in possession of the premises in dispute or any part thereof. It was further stated that Vinay Saigal, Vijay Saigal and Raju Saigal are the directors of M/s V.V.R. Hotels Pvt. Ltd. and are holding the entire share capital of the said company. The certified copy of Form 32, and Annual Returns of M/s V.V.R. Hotels Pvt. Ltd., have been placed on record as Ex.RW1/3 to RW1/5. It was stated that M/s V.V.R. Hotels Pvt. Ltd. had been running the hotel under the name of Hotel Metro Park for sometime from the premises in dispute.
28. In Eviction Petition No. 93/09 relating to premises B50, respondent Sh. Vinay Saigal made the identical submissions.
29. Sh. Raju Saigal also appeared in the witness box and tendered his evidence as Ex. RW2/A. In this affidavit also, the identical averments were deposed on oath.
30. Respondent also examined Sh. R.K. Saini, Sr. Technical Assistant as RW3. RW3 produced the record pertaining to M/s V.V.R. Hotels Pvt. Ltd. and proved the certified copies of Form 32 and RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 12 of 43 Annual Returns made up to 23.09.2002 as Ex.RW1/9 & RW1/10 respectively. Copies of the memorandum of association and articles of association & balance sheet for the financial year ending 31.03.2004 have been placed on record as Ex.RW3/1 & RW3/2 respectively.
31. One consolidated judgment was delivered in eviction petitions bearing No. 17/09 and 94/09 and another judgment was delivered in petitions bearing no. 18/09 and 93/09.
32. The Ld. Trial Court in petitions bearing no. 18/09 and 93/09 rejected the plea of the petitioners regarding the subletting and it was held that the petitioners/landlords have failed to discharge the initial onus of proving unlawful subletting. Further, petitioners have failed to prove that the respondents have divested themselves of all the rights in respect of the tenanted premises in favour of Hotel Metro Park or M/s. VVR Hotels Pvt. Ltd. On the contrary, the respondents have proved that all the three respondents are the Directors in M/s. VVR Hotels Pvt. Ltd and also that Hotel Metro Park was being run by them. Petitioners have failed to prove any subletting, assignment or parting with possession by the respondents in favour of any third person, hence the petition is dismissed under Section 14(1)(b) of the Act.
33. In regard to eviction petition under Section 14(1)(c) of the DRC Act, the Ld. Trial dismissed the eviction petition and inter alia held as under :
RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 13 of 43 "22.1 The case of petitioners is that the respondents were let out the tenanted premises for office use only, however they have used the same for commercial purpose by running the hotel Metro Park.
On the contrary, the stand of the respondents is that the premises was let out for residential cum commercial purposes. Though the petitioners have stated that the premises was let out for office use only, however no document to show that the premises was let out for particular purpose for office use has been placed on record by the petitioners. RW 1 during his cross examination has denied that the tenanted premises has not been let out for commercial purpose. He stated that he has been using the premises for commercial and office purpose. In the absence of any evidence documentary or oral, the petitioners have failed to prove that the tenanted premises was let out only for office purposes and that the respondents have used the premises contrary to the purpose for which it was let out. No ground is made out for eviction u/s. 14 (1) (c) and plea is accordingly dismissed."
34. In respect of eviction petition under Section 14(1)(j) of the DRC Act, the Ld. Trial inter alia held as under :
"25 PW1 in his affidavit and petition has alleged that the respondents have carried out unauthorized additions and alterations in the tenanted premises without obtaining oral or written consent of petitioners. PW 1 has deposed that the respondents have unauthorizedly constructed few rooms and covered the open veranda. The area of the tenanted premises is not disputed. Except RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 14 of 43 the site plans, petitioners have not placed on record any document or photographs to show unauthorised construction. In the absence of any such evidence, it cannot be said that the respondents have carried out any structural changes in the tenanted premises except that they have put wooden partitions in the big rooms in order to construct small rooms. The wooden partitions, if any, are only temporary structure and it cannot be said that they have altered or demolished any part of the tenanted premises. Minor renovation which does not in any way impair the value and utility of the premises, cannot be termed as structural alteration or addition. Petitioners have failed to prove that the respondents have caused or permitted to be caused substantial damage to the tenanted premises. The petition of the petitioners even fails on this count."
35. The appellants have challenged the impugned order on the ground that the Ld. Trial Court has fallen into a grave error and passed the order contrary to the facts on record. It was stated that there are several questions of law involved in the present appeal and the same have not been repeated for the sake of brevity. The impugned order has been challenged on the ground that the Ld. Trial Court failed to appreciate that respondents were not in occupation and possession of the tenanted premises as the same have been sublet, assigned and parted with possession in favour of M/s VVR Hotels Pvt. Ltd., a body corporate/company incorporated and registered under the Companies Act. It was further stated that the Ld. Trial Court failed to consider RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 15 of 43 that M/s VVR Hotels P. Ltd. is a separate legal entity which can sue and can be sued in its own name and the directors/shareholders may be changed at any point of time. It was stated that respondents failed to prove on record that M/s VVR Hotels P. Ltd. was running the hotel under the name and style of M/s Metro Hotel. In absence of any document, the Ld. Trial Court has wrongly believed the version of the respondents. It was stated that once owner/landlord has shown and proved that subtenant or some person, other than the tenant, is in possession and control of the tenanted premises or any part thereof, the landlord discharges the onus and then the burden is on the tenant to prove that it is not a case of subletting. In the present case, the tenant has failed to prove the same.
36. The appellants has further assailed the impugned order on the ground that tenants have miserably failed to prove that the premises was let out for office purpose and took a false plea that the the premises was let out for residentialcumcommercial purpose, however, no document in this regard has been proved. It was stated that RW2 Raju Saigal admitted in the crossexamination that office is being run in the demised premises since inception of tenancy. The appellant also stated that the Ld. Trial Court did not take into account the fact that respondents/tenants failed to produce and prove the hotel license, food license and other connected registers and documents required to be maintained, which were within the specific knowledge, RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 16 of 43 power and possession of the respondent/tenant. The appellant further stated that though the landlord/petitioner proved on record two separate site plans, one showing the tenanted premises as originally let out and the another plan showing the existing position and both these site plans were neither disputed nor denied by the respondents. The respondent has failed to prove the site plan as per law. The appellant stated that the damage or utility of the tenanted premises has to be seen from the landlord's point of view and not from the tenant's point of view. The impugned order has been challenged on the ground that the Ld. Trial Court has failed to appreciate that the respondents have carried out structural changes in the tenanted premises without the prior consent and permission of the landlords.
37. Notice of the appeal was issued to the respondents and Trial Court Record was called.
38. The respondents have not filed their reply, however, they have opposed the appeal.
39. Sh. Bharat Deepak, Ld. Counsel for the petitioners/ landlords has submitted that respondents have sublet and parted with the possession of the tenanted premises without the prior written consent/permission of the petitioners/landlords and have also changed the user of the tenanted premises and have caused or permitted to be caused substantial damage to the tenanted premises. It has further been submitted that the premises was let out for office purpose but the RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 17 of 43 respondents without the consent of the landlord/petitioner changed the same and a hotel namely Metro Park is being run from there. It was stated that a private limited company under the name and style of M/s VVR Hotels Pvt. Ltd. is also having its activities being run from the tenanted premises. The respondents/tenants have allegedly made the above additions and alterations without the permission of the landlord and no sanction was taken from the concerned authorities. It was stated that respondent/tenant failed to change the misuser despite service of notice. Ld. Counsel submitted that the respondent/tenant admitted before the Ld. Trial Court that they have made temporary partitions and took a plea that no substantial damage was caused. Ld. Counsel further submitted that admittedly, M/s V.V.R. Hotels Pvt. Ltd. is a separate legal entity and is in possession of the tenanted premises and therefore, the possession of the premises was sublet, assigned and parted with by the tenant to an outsider. Ld. Counsel for the appellant further submitted that respondent/tenant have failed to prove that M/s V.V.R. Hotels Pvt. Ltd. was running Metro Hotel from the tenanted premises. Ld. Counsel also submitted that even Sh. Raju Saigal, who was not a tenant in B50 and his having come into possession indirectly by virtue of being Director of M/s V.V.R. Hotels Pvt. Ltd., amounts to subletting. Ld. Counsel submitted that once it is proved on record that M/s V.V.R. Hotels Pvt. Ltd. was in possession, there was no need to prove that there was any transfer for monetary consideration. Ld. Counsel submitted that since the transaction RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 18 of 43 between tenant and the subtenant is in the nature of clandestine arrangement, it cannot be expected from the landlord to bring the evidence in this regard.
40. Ld. Counsel for the appellant further submitted that the respondents/tenants have taken a false plea that the premises was let out for residentialcumcommercial purposes, whereas, the Raju Saigal has admitted in his evidence that the premises was being used for office purpose since inception of the tenancy. In view of Section 58 of the Indian Evidence Act, the said admission acts as an estoppel against the tenant.
41. Sh. Bharat Deepak, Ld. Counsel for the appellants submitted that the Ld. Trial Court has wrongly referred to and relied upon the documents which were introduced and filed without proper procedure and without seeking leave of the court. The Ld. Counsel submitted that the respondents admittedly had been running the hotel, which is change of the user and therefore, liable for eviction under Section 14(1)(c) of the Act. Ld. Counsel referred to Section 108 (o) of the Transfer of Property Act, whereby the tenant is prevented from using the tenanted premises for the purpose different from one for which it was let out. Ld. Counsel also referred to Sections 106 and 114 of the Indian Evidence Act, to buttress his point that the evidence, which were in the special knowledge of the tenant, were not proved on record. Ld. Counsel submitted that respondents have not approached RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 19 of 43 the court with clean hands.
42. Ld. Counsel for the appellants further submitted that the site plan filed by the respondent/tenant was not proved, whereas, the site plans filed by the petitioner/landlords proved on record that the substantial damage has been caused to the tenanted premises. It has been submitted that since the correct site plan has not been filed by the respondent, an adverse inference can be drawn against them. It has further been submitted that in the site plan filed by the respondent/ tenant, it is shown that huge expenses towards the construction, besides other expenses towards furniture, appliances, food and other expenses etc. have been shown and therefore, it is proved that the structural damages have been made in the tenanted premises. Ld. Counsel further submitted that the petitioner/PW1 is a competent witness and therefore, there is no reason to discard his testimony. In support of his arguments, Ld. Counsel has placed repliance upon the following judgments namely British Motor Car Co. vs. Madan Lal Saggi (2005) 1 SCC 8; Shakuntala Devi vs. Avtar Singh 113 (2004) DLT 454; Panchavarnammal vs. E. Saraswathiammal (1997) 2 RCR 43; Ramesh Chandra vs. Shriram & Ors. (1996) 2 RCR 330 and Gopal Krishanji Ketkar vs. Mohamed Haji Latif AIR 1968 SC 1413.
43. Ld. Counsel for the appellants also filed detailed written submission on the record.
44. Sh. Sanjay Aggarwal, Ld. Counsel for the RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 20 of 43 respondents/tenants submitted that the Ld. Trial Court has rightly dismissed the eviction petition under Section 14(1)(b)(c)&(j) of the DRC Act and there is no ground to interfere with the same. Ld. Counsel submitted that M/s V.V.R. Hotels Pvt. Ltd. is a private limited company, in which, respondents have total controlling interest and the said company is being controlled by them. Respondents never ceased to be in possession of the premises in dispute or any part thereof at any time. Respondents have placed on record documents Ex.RW1/3 to RW1/5 being the certified copies of the Form 32 and Annual Returns of the said company. Respondents have also placed on record Ex.RW 2/1 being the certified copy of the memorandum of association and articles. Ld. Counsel for the respondents has submitted that the respondents have been in possession of the tenanted premises and have never sublet, assigned or parted with possession of the tenanted premises.
45. In regard to Section 14(1)(c) of the DRC Act, it was stated that the premises in dispute was let out for residentialcumcommercial purpose vide rent deed dated 01.01.1979 and as such, there is no misuser. Ld. Counsel submitted that the Ld. Trial Court has erroneously failed to take into consideration the copy of the rent deed Ex. RW1/1. Ld. Counsel further submitted that even besides Ex.RW1/1, PW1 in his crossexamination recorded on 19.03.2014 has specifically denied the suggestion that premises in dispute was let out RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 21 of 43 for residentialcumcommercial purpose and volunteered that it was let out for commercial purpose. It has further been submitted that in the crossexamination of RW1 recorded on 09.09.2014, a suggestion was put that the premises was let out for commercial purpose.
46. It has further been submitted that the findings of the Ld. Trial Court under Section 14(1)(j) of the Act are also based upon the material on record.
47. In regard to premises bearing No. B50, Ld. Counsel for the respondents has taken a plea that the premises in dispute was let out to Sh. J.P. Saigal and after his death, the tenancy was inherited by all the three brothers. Ld. Counsel has relied upon Rulhu Ram vs. Than Singh Ors 1966 SCC OnLine P&H 124.
48. Ld. Counsel for the appellants also filed detailed written submission on the record.
49. I have heard Ld. Counsel for the parties and perused the record carefully.
50. In regard to the tenancy of premises no. B50, the plea of the landlord is that M/s Vinay Saigal Vijay Saigal is the tenant whereas, the plea of the respondent/tenant is that the premises in dispute was initial let out to Sh. J.P. Saigal and after his death, all the three brothers Sh. Vinay Saigal, Sh. Vijay Saigal and Sh. Raju Saigal have became tenants. The appellants/landlords have relied upon RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 22 of 43 Ex.RW1/10 in Civil Suit bearing No. 635/1995 wherein it was admitted by the tenant M/s Vinay Saigal Vijay Saigal are the tenant in the premises in dispute.
51. It is pertinent to mention herein that the respondents have relied upon the rent receipts Ex.RW1/4 to RW1/7. These rent receipts are of 30.07.1977, 16.01.1978, 05.05.1982 and 21.06.1983. All these rent receipts are purportedly being signed by Sh. Jishan Lal Goel and have been executed in favour of Sh. J.P. Saigal regarding premises B
50.
52. The second limb of the arguments of the Ld. Counsel for the appellants is that proceedings in appeal bearing No. 866/68, as per memo of parties, have been filed by Smt. Harvanesh Kumari Ors vs. Sh. J.P. Sehgal and Ors. The said proceedings pertain to property bearing No. B50, Kuthiala House, New Delhi. These proceedings were compromised and Sh. H.K.L. Sabharwal, Ld. Counsel appearing for the landlords made a statement, on which, the appeal was dismissed as withdrawn, however, the petitioners are relying upon the pleadings filed in Civil Suit bearing CS No. 636/95. The said civil suit was filed in November, 1995 by Smt. Harvansh Kumari, Sh. Joginder Lal Kuthiala and Sh. Jatinder Lal Kuthiala, against M/s Vinay Sehgal Vijay Sehgal. It was stated that the defendant M/s Vinay Sehgal Vijay Sehgal is a tenant under the plaintiffs @ Rs.125/ per month. This suit was for permanent injunction. In the written statement filed by the RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 23 of 43 respondents, it was admitted that defendant firm, which is a partnership firm, is a tenant under the plaintiffs. The said civil suit was decided by Sh. Rakesh Pandit, Ld. Civil Judge vide order dated 27.07.2006 Ex.PW1/10. The Ld. Civil Judge vide the said order/judgment held that it was admitted that suit property i.e. B50 was let out to the partnership firm. The certified copy of the same has duly been proved on the record.
53. It is pertinent to mention herein that in the cross examination of PW1 in eviction petition No. 17/09 and 94/09, PW1 admitted that Sh. J.P. Saigal was the tenant in respect of B50 and was inducted as tenant prior to 1947 and he remained as tenant therein till his death. PW1 also admitted that the rent receipts used to be issued to Sh. J.P. Saigal in respect of rent paid by him. Rent receipts were issued on behalf of landlord in respect of said flats by Sh. Jishan Lal Goel, their manager. It has further come in the crossexamination of PW1 that sons of Sh. J.P. Saigal inherited the tenancy rights in respect of premises B50 after his death. Now, there is an admission on the part of petitioner's witness that late Sh. J.P. Saigal was the tenant in respect of B50 and after his death, all his three sons Sh. Vinay Saigal, Sh. Vijay Saigal and Sh. Raju Saigal, inherited the tenancy rights. However, in the civil suit bearing No. 635/1995, certified copy of the judgment has been placed on record as Ex.PW1/1, it has been admitted that firm was let out to the partnership firm.
RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 24 of 43
54. I consider that the principles regarding appreciation of evidence is that evidence has to be read in totality. PW1 in his testimony has admitted that premises in dispute was let out to late Sh. J.P. Saigal and after his death, his sons inherited the tenancy rights. The rent receipts in favour of late Sh. J.P. Saigal in respect of premises B50 have also been proved on record and such rent receipts have also been admitted by PW1. I consider that in view of testimony of PW1, notwithstanding admission in earlier suit, it has been held that premises in dispute was let out to late Sh. J.P. Saigal and after his death, his sons inherited the tenancy rights. It is also pertinent to mention here that the civil court was not directly dealing with the issue/question of relationship of landlordtenant.
55. The another bone of contentions between the parties is the rent note dated 01.01.1979. In this respect, an application under Order XI rules 12 and 14 read with Section 151 CPC was moved by the respondent/tenant to make discovery of rent deed dated 01.01.1979 and to produce the same on the record of the present petition.
56. I have found the order dated 16.02.2013 in E.No. 94/09. The Ld. Trial Court inter alia held that since the existence and genuineness of the rent deed in question is disputed by the petitioners and it is their stand that they are not in possession of any such rent deed, therefore, the request made on behalf of the respondent for discovery of such rent deed cannot be allowed. The order dated RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 25 of 43 16.02.2013 has not been challenged and has thus, attained finality. Therefore, the arguments made by the Ld. Counsel for the respondent/tenant for looking into the rent deed placed on record as Ex.RW1/1, cannot be looked into. It may be reiterated herein that it is a settled proposition that merely by putting an exhibit number on a document, it does not mean that it is proved.
57. Now coming to the grounds of eviction as set out in the eviction petition.
58. The petitioners/landlords have sought eviction of the respondents/tenants from premises bearing No. B50&51 on the ground of Section 14(1)(b)(c)&(j) of the Act.
FINDING IN RESPECT OF Section 14(1)(b) of the DRC Act
59. Section 14(1)(b) of DRC Act provides as under:
"that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord".
60. It is a settled proposition that subletting comes into existence when a tenant gives up the possession of the tenanted premises wholly or in part and puts another person in exclusive RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 26 of 43 possession thereof in such process. The parting with legal possession mean parting with possession with the right to include and to exclude others and mere occupation is not sufficient to infer either subtenancy or parting with possession.
61. It has also been held that as far as subletting is concerned, the two ingredients namely parting with possession and monetary consideration therefore have to be established. It is also no more res integra that unless the legal possession is parted with ejectment cannot be ordered.
62. In Gurdial Singh Vs Brij Kishore & Ors, 1970 DLT 592, it was observed that simply because the tenant has allowed another person to use or share a premises, it does not amount to breach of covenant not to part with the possession of the premises. It was further explained in this case that it is not the law that no sooner does any person other than the lessee occupies a premises, it must be held that the tenant has parted with possession of the demised premises. What has to be seen in such a case is whether the tenant has totally effaced himself and whether the possession of the third person is exclusively in his own right and to the ouster of the lessee.
63. In the present case, the petitioners have alleged that respondents/tenants have sublet, assigned and parted with the possession of the tenanted premises in favour of M/s V.V.R. Hotels Pvt. Ltd. In support of his contention, Ld. Counsel for the appellants RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 27 of 43 has also relied upon judgment of the Hon'ble Supreme Court of India in Singer India vs. Chander Mohan Chadha & Ors. in Appeal (civil) No. 387/2004 decided on 13.08.2004.
64. In Singer India (supra), it was held that an American Company, without obtaining any written consent from the landlord, had parted with the possession of the premises in dispute in favour of Indian Sewing Machine Company Limited, incorporated under the Indian Companies Act. It was held that the said company was in exclusive possession of the premises and was liable for eviction in view of Section 14(1)(b) of the Delhi Rent Control Act. The Hon'ble Supreme Court further held that there is no ambiguity in the Section and it clearly says that if, without obtaining the consent in writing of the landlord the tenant has, on or after 9.6.1952, (i) sublet, or (ii) assigned, or (iii) otherwise parted with the possession of the whole or any part of the premises, he would be liable for eviction. The applicability of the Section depends upon occurrence of a factual situation, namely, subletting or assignment or otherwise parting with possession of the whole or any part of the premises by the tenant. Whether it is a voluntary act of the tenant or otherwise and also the reasons for doing so are wholly irrelevant and can have no bearing.
65. In Singer India (supra), the eviction order passed under Section 14(1)(b) of the Act was upheld.
66. Ld. Counsel for the respondent/tenant has relied upon RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 28 of 43 Vishwa Nath Anr. vs. Chaman Lal Khanna Anr. AIR 1975 Delhi 117. In this case, Vishwa Nath took the premises on rent from the landlord in the year 1962. In 1964, a limited company was formed. After formation of the company, the company started paying rent to the landlord. In 1969, an eviction petition was filed on the ground of sub letting. Ld. Rent Controller allowed the eviction petition which was challenged before the Rent Controller Tribunal. The Ld. Rent Controller Tribunal dismissed the appeal inter alia holding that premises in dispute was let to Vishwa Nath and not to the company. The Tribunal was of the view that the company was a juristic personality and was distinct from the shareholders and directors. It was a body corporate and was distinct from Vishwa Nath. The order was challenged before the Hon'ble High Court. The Hon'ble High Court noted the fact that it was proved in evidence that Vishwa Nath had taken the room in his own name as the chief executive of Interads. Later on, the company was formed and the company started paying the rent. The Hon'ble High Court did not agree with the findings of the Ld. Trial Court and Rent Controller and inter alia held that the reasoning adopted by both the courts were faulty. It was inter alia held as under :
"22. If an individual takes the premises on rent and then converts his sole proprietorship concern into a Private limited company in which he has the controlling interest he cannot be evicted from the premises. On the proved facts, this is the inevitable conclusion. The RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 29 of 43 person who took the premises on rent remains in possession though he forms a company and ceases to be the sole proprietor. He does not cease to be in possession. He has not parted with the possession with any one. He has changed the form of his business. In Interads, Vishwa Nath was the sole proprietor. In Interads Private Limited, he has the controlling interest and his wife and his two sons are the other shareholders along with two other strangers. He was all in all in his proprietorship concern. Now, also he is the chief executive, chairman and the managing director of the company. It is true that the company is a juristic person but in each case what we have to see is whether Possession has been parted with and whether there is an ouster of the tenant. If the company is a facade concealing the true facts it may be necessary for the Court to pierce the corporate well."
67. Reliance has also been placed in (1926) 1 Kb 198, Jackson v. Simons. (1923) 1 Ch 373 and Peebles v. Crosthwaite. (1897) 13 TLR 198 (CA), wherein it was inter alia held that if the lessee retained the legal possession of the premises, he did not commit breach of the covenant against parting with possession by allowing other people to use the premises or by sharing the possession with another. It was further inter alia held as under :
"29. Vishwa Nath is in possession as director having a controlling the company. No doubt he has let the company into possession but he has not parted with the possession himself and so long as it is RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 30 of 43 true in fact Vishwa Nath has not contravened the law. He has not gone out of possession. Possession has been retained by him. If he has allowed the company to use the premises while he himself has remained in possession of them as managing director and chief executive of the company. I cannot accede to the argument that he has parted with possession. He has not assigned nor has he sublet.
30. So long as the lessee retains the legal possession of the whole of the premises he does not commit a breach of law against parting with the possession by allowing other people to use the same. A tenant cannot be said to part with the possession of any part of the premises unless his agreement with the licencee wholly ousts him from the legal possession of that part. If there is anything in the nature of a right to concurrent user, there is no parting with possession: See Stenina v. Abrahama, (1931) f Ch D 470 and G. D. Chaudhary v. Anand Sarup. 1966 Delhi Lt 28.
31. Clause (b) of the proviso to Section 14(1) uses three expressions namely 'sublet', 'assign' and 'otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord'. These three expressions deal with different concepts and apply to different circumstances. In subletting there exists the relationship of landlord and tenant as between the tenant and his subtenant and all the incidents of letting or tenancy have to be found, namely the transfer of an interest in the estate payment of rent, and the right to possession as against the tenant in respect of the Premises sublet. In assignment the tenant has to divest himself of all the rights that he has as a tenant. The expression "parted with possession" undoubtedly postulates parting RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 31 of 43 with possession session means giving possession to persons other than those to whom possession has been given by lease and "parting with possession" must have been by the tenant. The mere user by other persons is no parting with Possession so long as the tenant retains the legal possession himself or in other words there 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. The divestment or abandonment of the right to possession is necessary in order to invoke the clause of parting with possession: See Hazari Lal v. Gian Ram. 1972 Ren Cr 74 (Delhi)."
68. In the present case, the respondents/tenants have brought on record that Vinay Saigal, Vijay Saigal and Raju Saigal are the directors in M/s. Vinay Saigal Vijay Saigal, and they have the controlling interest. It is not the case of the landlord that the shareholding of M/s. V.V.R. Hotels Pvt. Ltd. is with the person other than the tenant. The judgment as cited by the Ld. Counsel for the respondent Vishwa Nath (Supra) is directly applicable in the present facts of the case.
69. PW1 had admitted in the crossexamination that tenant have always remained in the possession of the premises in dispute.
70. It is also pertinent to mention herein that after an amendment in the DRC Act, only the appeal can be entertained on the question of law. The Ld. Trial Court has given a categorical finding RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 32 of 43 that all the three brothers Vinay Saigal, Vijay Saigal and Raju Saigal have the controlling interest. I consider that there is no ground to interfere with the impugned order.
FINDING IN RESPECT OF Section 14(1)(c) & (j) of the DRC Act
71. Section 14(1)(c) of the DRC Act provides as under :
"that the tenant has used the premises for a purpose other than that for which they were let
(i) if the premises have been let on or after the 9th day of June, 1952, without obtaining the consent in writing of the landlord;
(ii) if the premises have been let before the said date without obtaining his consent."
72. The bare perusal of Section 14(1)(c) of the Act makes it clear that tenant shall be liable for eviction if he has used the premises for a purpose other than that for which they were let out without obtaining the consent of the landlord. The Ld. Trial Court rejected the eviction petition predominantly on the ground that the landlords have failed to prove that the tenanted premises was let out only for office purposes. Ld. Trial Court noted that the premises in dispute was let out for residentialcumcommercial purposes.
73. PW1 denied the suggestion in the crossexamination that premises in dispute was let out for residentialcumcommercial purposes. The petitioner/PW1 in his affidavit has specifically stated on oath that premises was let out for office purpose. RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 33 of 43
74. RW1 also stated on oath that premises B50 was let out for residentialcumcommercial purposes and the same is being used for the said purpose. The premises was never let out for office purpose only.
75. In the crossexamination, RW1 reiterated that premises were let out residentialcumcommercial purposes. He also stated that his father was living along with his family and also used to do import business from the tenanted premises and after his death, all the three brothers did the business from the premises jointly.
76. Section 14(1)(j) of the DRC Act provides as under :
"that the tenant has, whether before or after the commencement of this Act, caused or permitted to be caused substantial damage to the premises."
77. PW1 in his affidavit has specifically stated on oath that respondents have unlawfully and without the consent of the petitioners made several additions and alterations, which has impaired the value and utility of the premises and the building as a whole. PW1 further stated on oath that respondents were let out four rooms, one kitchen, open space, terrace, one bath and WC but they have unauthorizedly and without the consent/permission of the petitioners and the local authorities, demolished the said construction and constructed six room, RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 34 of 43 four toilets, kitchen and have also covered the open space to use the property for hotel purposes by providing facilities of wash basins, toilets etc. to the customers. It has been further stated that the premises is not in same condition as it was originally let out and that the respondents have made two separate flats no. B50 and B51 into one unit and by putting additional load on the old walls and foundations etc. have structurally damaged the tenanted premises.
78. In the crossexamination, PW1 repeatedly denied the suggestion that site plans Ex.PW1/2 & PW1/2A are not correct. In the crossexamination, PW1 stated that Vinay Saigail, Vijay Saigal and Raju Saigal have increased the number of rooms to 56 rooms and covered the open space. The PW1 denied the suggestion that no additions or alterations were carried out in the premises in dispute or that the premises in dispute were in the same condition as shown in Mark B at the time of letting out. PW1 further denied the suggestion that the construction as existing today in the premises in dispute is the same as shown in Mark B or that no complaint in respect of any construction was filed by him with NDMC. PW1 was not aware that the copy of the said complaint has been filed in the present case. PW1 further denied the suggestion that no structural damage has been caused to the premises in dispute and no additional load has been put on the walls. PW1 further denied the suggestion that premises in dispute were never made into one unit and they are two units till date.
RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 35 of 43
79. Sh. Vinay Saigal/RW1 in his affidavit Ex.RW1/A in regard to premises B50 deposed on oath that construction existing in the premises was never as per site plans Ex.PW1/2 & PW1/2A. It was also stated that site plan Ex.PW1/7 filed in the earlier suit was never supplied to the respondents. The plea of the respondent was that site plan Ex.RW1/8 is correct as per the construction existing in the premises in dispute and the said construction has been existing since the time of letting out the premises in dispute. RW1 further stated that no addition or alteration has ever been carried out in the premises in dispute and the construction existing as present is the same as it was at the time of letting out. It was also stated that B50 & B51 have never been converted into one unit and no substantial damage has been caused to the premises in dispute.
80. RW1 stated in the crossexamination that no construction work was carried out in the tenanted premises except the wooden work to run the hotel. He also stated that they did not supply food to the customers and there was no facility provided to the customers in regard to food etc. RW1 denied the suggestion that to run the hotel, they have removed the walls and created more rooms and bathrooms, kitchen etc. and covered the open space between B50 and B51. He also stated that no additions or alteration were carried out in the premises in dispute. RW1 denied the suggestion that he spent more than Rs.50 lacs in renovating the premises for running the hotel.
RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 36 of 43
81. RW2 Raju Saigal in his affidavit made identical statement on oath. In his crossexamination, he stated that his father used to run the office and shop in the demised premises. RW2 admitted in the crossexamination that office is being run in the demised premises since inception of tenancy. RW2 also denied the suggestion that the office used to be run from the premises, rather trading work and residential work was carried on in the premises in dispute. RW2 also admitted in the crossexamination that at present, an office is being operated from the demised premises and the office is running the work of M/s. VVR Hotels Pvt. Ltd.
82. In the crossexamination of PW1 in Eviction Petition no. 17/09 relating to premises B51, PW1 though denied the suggestion that premises in dispute was let out for residentialcumcommercial purposes, however, voluntarily stated that it was let out for commercial purpose only. The witness stated in the crossexamination that the addition and alterations in the premises in dispute were made at the time of starting of the hotel Metro Park. In the crossexamination, PW1 also admitted that copy of the complaint filed with NDMC is not available with them.
83. Sh. Vinay Saigal/RW1 filed his affidavit Ex.RW1/A in Eviction Petition No. 17/09 & 94/09 reiterating the averments as made in Eviction Petition No. 18/09 & 93/09. In the crossexamination, RW1 stated that premises B50 was used for residential and RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 37 of 43 commercial purposes by his father and similarly, premises B51 is also being used for residentialcumcommercial purposes. It also came in the crossexamination of RW1 that at the time of starting the Hotel Metro Park, they had put 23 wooden partition and no false ceiling were constructed. The witness further stated that no Wash Basins were provided in the rooms.
84. Interestingly, a suggestion was put to RW1 by the petitioner that the premises has been let out for commercial purposes, which was denied by RW1. RW1 stated the he had been using the premises for commercial purposes including office. RW1 stated in the crossexamination that there was no misuser of the tenanted premises. RW1 stated that there was no reception in Hotel Metro Park but there was one counter table. It also came in the cross examination of RW1 that they have made wooden partition in Hotel Metro Park. The wooden partition were not attached/locked with the walls. The structure of the rooms was not changed. The bigger rooms were converted into smaller rooms with the help of wooden partitions. The wooden partitions were touching the floor and roof on both sides.
85. Ld. Counsel for the appellant has stated that if the evidence of witness is read in totality, it is clear that the premises in dispute were let out for office purposes and the same has been used as an Hotel and therefore, there is misuser.
86. Secondly, the respondent/tenant have also made substantial RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 38 of 43 additions and alterations and caused damages to the property. In respect of his contention, Ld. Counsel for the appellants has relied upon Shakuntala Devi vs. Avtar Singh 113(2004) DLT 454.
87. In Shakuntala Devi (supra), it was not disputed that a parchhati has been built by the tenant/respondent which is equivalent in area to the room let out and is a wooden structure built up by inserting girders into the walls upon which wooden planks are nailed and is finished by use of plywood. The Ld. ARC dismissed the eviction petition, however, Ld. Additional Rent Controller inter alia held that erection of parchhati in the room by the tenant is sufficient to prove that damage is caused under Section 14(1)(j) of DRC Act.
88. In the present case, it is not the case of the landlord that a parchhati has been constructed or punctured the weightbearing walls of the premises in question. The respondents in evidence have repeatedly stated that wooden partitions were made and it did not come in the evidence of either of the parties that there was any punctured holes into the walls or girders were put into the walls.
89. In Suraj Prakash Chopra Raj Kumar vs Baij Nath Dhawan And Anr. 2003 III AD Delhi 705, 103 (2003) DLT 645, the Hon'ble Delhi High Court has held as under :
"34. Examining the facts of the case on the touchstone the above proposition of law it may be noticed that the tinshed is of temporary nature. It has not been built up by digging foundation RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 39 of 43 or erecting the walls. It has no pucca structure. The tinsheets are resting on the existing walls of the building. May be the girdar is used in the erection work but there is no evidence leading to inference that the use of the girdar in the erection work has increased the weight upon the load bearing wall to endanger or it has brought about weakness in the existing puce construction of the building. The tinsheet has not caused any damage to the walls on which it is resting. It can be removed easily without causing damage to the main building. It is not understood as to how the Controller and the Tribunal on these facts could draw an inference that a mere tinshed covering a portion of the courtyard, or even major portion, could have impaired the value or utility of the premises or could fall within the mischief of substantial damage for which the tenant may be evicted under Clause (j). The additions and alterations which cause impairment in the value and utility of the premises, no doubt, are to be viewed from the point of view of the landlord but temporary shed of the nature which is in existence in the courtyard would by no stretch of reasoning be said to have caused damage much less substantial damage to the demised premises covered by Clause (j) if it is viewed in the light of the case law cited above."
90. Ld. Counsel for the appellant has also relied upon British Motor Car Co. vs. Madan Lal Saggi (dead) and another (2005) 1 SCC
8.
91. In this case, the tenancy was created by lease agreement RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 40 of 43 which contained a clause that the lessees will not make any additions or alteration or change in the building during the period of tenancy. The Hon'ble High Court has affirmed the findings of the two courts below that the value and utility of the courtyard had been totally impaired as further construction had been made thereupon by the petitioner without the written consent of the landlord. The Hon'ble Supreme Court inter alia held that when the construction is alleged to have materially impaired the value and utility of he premises, the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building.
92. The Hon'ble Supreme Court relied upon Om Prakash vs. Amar Singh (1987) 1 SCC 458 and inter alia held that the essential element which needs consideration is as to whether the constructions are substantial in nature and they alter the form, front and structure of the accommodation. It is not possible to give an exhaustive list of constructions which constitute material alterations, as the determination of this question depends on the facts of each case.
93. Reliance was also placed upon Gurbachan Singh vs. Shivalak Rubber Industries (1996) 2 SCC 626, wherein it was held that the question whether the alleged addition and alterations materially impaired the value and or utility of the premises in question is a mixed question of law and fact to be determined on the application of correct RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 41 of 43 principles.
94. The Hon'ble Supreme Court also relied upon Vipin Kumar vs. Roshal Lal Anand (1993) 2 SCC 614 and inter alia held that the impairment of the value or utility of the building is from the point of the landlord and not of the tenant.
95. In the present case, the Ld. Trial Court has appreciated the evidence in detail regarding the unauthorized construction and whether it has materially impaired the value and utility of the premises in dispute. The Ld. Trial Court has returned the findings in negative. This court also considers this is a mix question of law and fact and has reappreciated the entire evidence. The petitioner has stated that the respondents/tenants have caused substantial damages to the property by removing the walls, however in this regard, except the site plan, no other credible evidence has been led. There is no evidence of the expert proving that there has been any substantial damage to the property or any construction was raised, which was of permanent in character. On the contrary, the respondents/tenants in their cross examination have specifically stated that only the wooden partitions were raised and the same were attached/locked and embedded in the premises. I consider that petitioners have miserably failed to prove the case placed by them. Similarly, in regard to the letting out, the petitioners have stated that the premises were let out for office purpose, however except words of mouth, no other evidence in this RCT Nos. 112/16 & 113/16 Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 42 of 43 regard has been led. The respondents have repeatedly stated that the premises in dispute were let out for residentialcumcommercial purposes. The court has to take into account the fact that the premises in dispute are in Connaught Place, New Delhi. The Connaught Place is in the heart of the city and predominantly a commercial area. It is one of the upmarket of New Delhi. If the words of mouth of both the parties is assessed and evaluated, I consider that version of the respondents/tenants seems to be more reliable and credible. Hence, I consider that there is no scope to interfere with the findings of the Ld. Trial Court that the premises were let out for residentialcum commercial purpose.
96. In view of the facts and circumstances of the case and the discussions made hereinabove, the appeals bearing RCT Nos. 112/16 & 113/16 are dismissed accordingly.
97. TCR be sent back along with copy of the judgment.
98. Appeal file be consigned to Record Room.
Digitally signed by DINESH DINESH KUMAR
KUMAR SHARMA
Date: 2021.09.18
SHARMA 18:12:49 +0530
Announced in the (DINESH KUMAR SHARMA)
open court on Principal District & Sessions Judge/RCT
th
18 day of September, 2021 Patiala House Courts, New Delhi
RCT Nos. 112/16 & 113/16
Joginder Lal Kuthiala Ors. vs. Vinay Saigal Ors. Page No. 43 of 43