Delhi District Court
Shri Deepak Goel vs M/S. Prem Chand Amrit Lal on 2 May, 2009
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RCA No. 55/08.
(Old No. 76/06).
IN THE COURT OF SH. GURDEEP KUMAR:
D.J.-V-CUM-ASJ/ I/C (SOUTH) P.H.C., NEW DELHI
IN THE MATTER OF :
RCA No. 55/08.
(Old No. 76/06).
Shri Deepak Goel
S/o Shri Ramesh Chand
R/o 108, Saman Bazar
Bhogal, Jangpura
New Delhi-110014.
...Appellant
Versus
1. M/s. Prem Chand Amrit Lal
through its Proprietor
Shri Amrit Lal
Property No.108,
Church Lane, Bhogal,
New Delhi-110014.
2. Smt. Shyama Goel
W/o Shri Kishan Gopal Goel
4828, Jungpura Lane
Masjid Road, Bhogal
New Delhi-110014.
3. Shri Subhash
S/o late Shri Moti Ram
4. Shri Radha Raman
S/o late Shri Moti Ram
5. Shri Kishan Gopal Goel
Contd..
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RCA No. 55/08.
(Old No. 76/06).
S/o late Shri Moti Ram
Above 3 to 4 residents of
4828, Jungpura Lane
Masjid Road, Bhogal
New Delhi-110014
6. Smt. Usha Rani Goel
W/o late Shri Suresh Chand Goel
7. Shri Vivek Goel
S/o late Shri Suresh Chand Goel
8. Shri Sanjay Goel
S/o late Shri Suresh Chand Goel
All R/o RZ-42-A, Gali No. 1
Vaishali, Dabri Road
Delhi-110046
9. Smt. Anuradha Bansal
W/o Mr. Ramesh Chand Bansal
D/o late Shri Moti Ram
R/o 22, Pocket 14, C4C
Janakpuri, New Delhi.
10. Shri Manoj Kumar
S/o late Shri Parvesh Chand Goel
11. Shri Parmod Kumar
S/o late Shri Parvesh Chand Goel
12. Ms. Suman Goel
D/o late Shri Parvesh Chand Goel
Contd..
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RCA No. 55/08.
(Old No. 76/06).
All residents of House No. 4828
Jungpura Lane, Bhogal
New Delhi-110014
13. Smt. Omwati Goel
W/o Shri Ramesh Chand
R/o 108, Saman Bazar
Bhogal, Jangpura
New Delhi-110014.
...Respondents
O R D E R :-
Date of institution of case : 20.07.2006.
Date on which the judgment has been reserved : 21.04.2009.
Date on which the judgment has been delivered : 02.05.2009.
1. This is an appeal u/s 38 of Delhi Rent Control Act, 1958 (hereinafter to be referred as the Act) against the impugned order dated 11.07.2006 passed by Trial Court.
2. Brief facts leading to the present appeal are that the respondent herein has filed a petition u/s 44 of Contd..
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(Old No. 76/06).
the Act against Deepak Goel the appellant herein and 12 other respondents as mentioned in the Trial Court record. His averments are that the petitioner is an old tenant in the shop as shown red colour in the site plan in property No. 108, Church Lane, Bhogal, New Delhi on a rent of Rs. 50/- per month; that he was paying rent to one Smt. Shanti Devi widow of Shri Moti Ram the previous landlady who received rent upto January, 2000. During the life time of said Smt. Shanti Devi and even after her death disputes arose among the legal heirs of late Mr. Moti Ram the original landlord and everybody claimed to be the owners / landlords and entitled to receive rent. As there was bona fide doubt as to which of the L.Rs of deceased Shri Moti Ram or Smt. Shanti Devi is entitled to receive rent, the petitioner deposited the rent w.e.f. 01.02.2000 to 30.09.2000 before the Rent Controller, Delhi. Various respondents filed objections and from the objections, it was learnt that litigations are pending Contd..
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(Old No. 76/06).
between the respondents herein regarding the title of the premises in dispute herein and the other properties. After hearing objections, ld. ARC vide orders dated 23.10.2004 in that petition u/s 27 of the Act passed the orders reproduced below :-
"Since judicial verdict in the pending cases is yet to come, therefore considering all aspects of the case I am of the view, let there is status-quo position in respect of the payment of rent by the petitioner as prevailing till January, 2000. Accordingly without prejudice to the legal rights and contentions of the parties, however subject to judicial verdict in cases pending adjudication before High Court of Delhi and in other civil proceedings, the application for deposit of rent for period w.e.f. 01.02.2000 upto 10.09.2000 @ Rs. 50/- p.m. is allowed and the respondent No. 1 (Smt. Shanti Devi) may withdraw the rent without prejudice to the legal rights of the petitioner."
That order by ld. ARC was challenged in an appeal being RCA No. 586/04 before the ARCT. Ld. ARCT vide his order dated 15.09.2005 modified that order to the extent that the rent shall remain deposited in Contd..
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(Old No. 76/06).
the Court and as various litigations are pending between the heirs of late Smt. Shanti Devi, the person who shall be held owner / landlord shall be entitled to withdraw the amount deposited by the tenant. Mr. Ramesh Chand husband of respondent No. 1 Smt. Omwati Goel and father of respondent No. 2 Sh. Deepak Goel was one of the main claimants. After his death, respondent No. 1 & 2 are now claiming to be the owners / landlords qua the premises in the tenancy of the petitioner. It was further averred that late Sh. Ramesh Chand with the help of his servants had broken major portion of the boundary wall of the roof of the tenanted premises and had also caused / created cracks in the roof of the tenanted shop of the petitioner intentionally so that water and particularly the rainy water may seep through the said cracks / hole causing damage to the shop of the petitioner. It was further averred that the said late Mr. Ramesh Chand intentionally had kept discarded goods over the roof of Contd..
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(Old No. 76/06).
the shop which are still causing damage to the tenanted premises. A police report in that regard was lodged against one Mr. Ramesh Chand. Thereafter the said Mr. Ramesh Chand had promised that he would remove his discarded goods and get the necessary repairs done. However, he died a few months back. After his death, the petitioner requested all the respondents and particularly respondent No. 1 and 2 to get the discarded goods removed and get the necessary repair done or allow him to himself remove the goods and get the repair done. Respondents No. 3 to 13 stated that they have no objection in the repairs and removal of the discarded goods belonging to respondents No. 1 & 2. However, respondents No. 1 & 2 flatly refused to do the needful and to allow the petitioner to do the needful himself. A notice to respondents No. 1 & 2 was sent by the petitioner asking them to carry out the necessary repair but they declined to do so. It is further averred that the Contd..
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(Old No. 76/06).
repairs required in the tenanted premises are not major and no demolition or construction work are to be done and the repairs are to be carried out and the particulars regarding details of repairs are mentioned in Annexure A alongwith the petition.
3. Respondents No. 1 & 2 filed a written statement taking preliminary objections that the petition was beyond the provisions of Section 44 of the Act and hence ld. Trial Court has no jurisdiction to try and entertain the matter. It was denied that late Mr. Ramesh Chand with the help of his servants had broken major portion of the boundary wall of the roof of the tenanted premises. They also denied that late Mr. Ramesh Chand had kept the goods over the roof to cause any damages. Receipt of the notice dated 20.04.2006 from the tenant is not disputed but is claimed to have been duly replied. During pendency of the said petition, respondent No. 1 & 2 filed Contd..
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(Old No. 76/06).
an application u/s 7 R 11 CPC seeking rejection of the petition for want of jurisdiction with ld. Trial Court. After hearing ld. counsel for the parties, the Trial Court passed the impugned order thereby dismissing that application. Aggrieved by that order Mr. Deepak Goel, one of the respondents in the petition before the Trial Court, has come up with the present appeal.
4. I have heard ld. counsel for both the parties, perused the grounds of appeal and also the Trial Court record. I have considered the submissions made by the counsel for both the parties. Ld. counsel for the appellant has argued that the tenant in his petition has alleged that late Mr. Ramesh Chand with the help of his servants had broken major portion of boundary wall of the roof of the tenanted premises and has also created / caused cracks in the roof of the tenanted shop intentionally so that the water and particularly the rainy Contd..
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(Old No. 76/06).
water may seep through the same causing damages to the shop and also kept discarded goods over the roof of the shop which are causing damage tot eh tenanted shop. It is argued by ld. counsel that the tenant is not seeking the tenable repairs but is complaining of deliberate act of causing damage to the tenanted premises so as to ensure that the tenant has no option but to vacate the tenanted premises. This is beyond the purview of scope of Section 44 of the Act and for that reason, the Trial Court is not vested with requisite jurisdiction to try and entertain that petition under the Act. In support of that contention, ld. counsel has relied upon the case reported as Yogender Pal Bhatia Vs. Rajesh @ Raju & Ors. 116 (2005) DLT 202 and Lekh Ram Khari Vs. Krishan Kumar Vohra 61 (1996) DLT 584.
5. On the other hand, ld. counsel for the respondents herein has argued that the aforesaid law Contd..
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(Old No. 76/06).
relied upon by ld. counsel for the appellant does not apply to the facts of the present case because as in the case of Yogender Pal Bhatia Vs. Rajesh @ Raju & Ors. (supra) he has not sought any decree or damages besides permission to carry out repairs in the tenanted premises. That in both the cited cases relied upon by ld. counsel for the appellant, the tenant could not approach the Court of ARC and, therefore, it was held by Their Lordships that the Civil Court has jurisdiction to try and entertain the civil suits filed by the tenants.
Ld. counsel for the respondents while referring to the case law reported as Pravesh Kant Vs. Vijay Kumar 1999 RLR 468 and Mangat Rai And Another Vs. Kidar Nath And Others (1980) 4 SCS 276 has argued that the Court has to see overall intent and purpose and not guided by technicality; that the provision which provide real protection to the tenant should not be construed too technically and literally so as to defeat the Contd..
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(Old No. 76/06).
object of the Act.
6. I have gone through the case law relied upon by both the parties. In the case of Yogender Pal Bhatia Vs. Rajesh @ Raju & Ors. (supra) the plaintiff had filed a civil suit for mandatory injunction restraining the landlord from interfering in carrying out repair in the tenanted premises. His allegations were that damage to the suit premises was the result of unauthorized construction made by the landlord on upper floor. It was alleged that unauthorized construction was a deliberate act on the part of the landlord to damage the suit premises with a view to force the petitioner to vacate the suit premises. It was further alleged by the tenant that for that reasons the landlords were neglecting intentionally to repair the suit premises. In the light of the aforesaid facts, Their Lordships observed that there are two scenarios; on the one hand there is neglect or Contd..
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(Old No. 76/06).
negligence on the part of the landlord to look after the tenanted premises, and on the other, there is deliberate act of causing damage to the tenanted premises or being so totally neglectful in looking after the tenanted premises as to virtually become a deliberate act of damage; that the allegations of the petitioner fall in the second category because it is his case that inspite of knowing fully well that the tenanted premises require repairs, not only are the respondents totally neglecting to do anything about it, but deliberately damaging the property so as to ensure that the plaintiff has no option but to vacate the tenanted premises, which actually suits the interest of the respondents. Their Lordships further held that consequently if it appears (and it does so in this case) that respondents are not only neglecting to look after the tenanted premises, but are also deliberately causing damage to the tenanted premises, then if the petitioner wants to protect his tenancy rights, he can only Contd..
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(Old No. 76/06).
resort to a civil remedy. To this extent, therefore, the provisions of D.R.C. Act cannot come in his way.
7. In the case of Lekh Ram Khari Vs. Krishan Kumar Vohra (supra) the tenant had filed a civil suit restraining the landlord from interfering with the carrying out repairs in the tenanted premises bearing No. WP 522 Village Wazirpur, Delhi-52 and from removing the debris left by the landlord. His case was that after demolition of the first floor, the landlord intentionally kept the debris on the roof of the tenanted premises, which damaged the roof and ultimately resulted in the roof coming down the factory of the tenant being closed. It was also stated that landlord used to open the water tap on the debris which would accumulate there and then flow into the tenanted premises. In the light of the above narrated facts, Their Lordships held that the provisions of Section 44 of D.R.C. Act would get attracted in a situation where the Contd..
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(Old No. 76/06).
tenant requires the landlord to bear the expense of repair or part thereof. The section provides the procedure for service of notice on the landlord prior to repairs as also for permission from the Rent Controller for the tenant to carry out repairs after estimate of costs is approved. The section also provides for limits on the liability of the landlord. It was further held by Their Lordships that, however, in the case where the tenant only seeks permission to remove the debris thrown by the landlord and / or repair the damage caused to the tenanted premises at his own costs entirely provision of Section 44 of the D.R.C. Act are not applicable, hence, the suit or the application would not be barred under Section 50 of the D.R.C. Act.
8. I have also gone through the case law relied upon by ld. counsel for the respondent, namely, Pravesh Kant VS. Vijay Kumar (supra) and Mangat Contd..
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(Old No. 76/06).
Rai And Another Vs. Kidar Nath And Others (supra). With due respect to Their Lordships, I am of the considered view that the same does not help the respondent in any manner whatsoever. The facts in the case of Pravesh Kant VS. Vijay Kumar (supra) are entirely different. In that case the landlord had mentioned all the essential ingredients of Section 14 (1)
(e) of D.R.C. Act except the purpose for which premises were let out. The tenant was ex-parte. Despite the tenant being ex-parte, the Trial Court dismissed the eviction petition for the reason that the landlady had omitted to mention requirement of residence. In the light of these peculiar facts, Their Lordships had observed that law is not a mere technicality but the Court has to see the substance once the basic requirement of Section 14 (1) (e) of D.R.C. Act i.e. as to for what purpose the property was let out, the petitioner was the owner thereof, the premises are required for accommodation for Contd..
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(Old No. 76/06).
the petitioner and the members of the family of the petitioner have been pleaded and mere non-mentioning of the word 'residential' cannot be the ground for non- suiting the petitioner. In the peculiar facts of the case it was held by Their Lordships that if the petition is u/s 14 (1) (e) and fulfills all other requirements then ARC should have seen the over-all intent and purpose and not guided by technicality.
The facts of the other case i.e. Mangat Rai And Another Vs. Kidar Nath And Others (supra) are also entirely different. In that case the Hon'ble Apex Court was examining the proviso of Section 13(2) of the East Punjab Urban Rent Restriction Act, 1941 which provides a relief to the tenant in an eviction petition on the ground of non-payment of rent, if the tenant on the first hearing of the application for ejectment after due service pays / tenders the arrears of rent and interest @ 6% per annum on such arrears together with the cost of Contd..
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(Old No. 76/06).
applications assessed by the controller. In that case the tenant had paid the arrears of rent, interest, arrears before letting out of her. It is in the light of the above narrated facts and circumstances of the case Their Lordships held that the provision which provides the real protection to the tenant should not be construed too technically and literally so as to defeat the object of the Act.
9. On the other hand, in my view the case law Yogender Pal Bhatia Vs. Rajesh @ Raju & Ors. (supra) and Lekh Ram Khari Vs. Krishan Kumar Vohra (supra) is squarely applicable to the facts of this case. The facts of those cases and the case in hand are almost similar and identical. In the case in hand the tenant has filed an application u/s 44 of the Act seeking permission to get the necessary repairs in the tenanted premises done at his own costs and expenses as Contd..
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mentioned in Annexure - A. His allegations are that the landlord late Mr. Ramesh Chand with the help of his servants had broken major portion of the boundary of the wall of the tenanted premises and had also created cracks in the roof of the shop intentionally so that the water and particularly the rainy water may come through the said cracks / holes causing damage to the shop in question; that said late Mr. Ramesh Chand intentionally had kept discarded goods over the roof of the shop which are still causing damage to the tenanted premises.
Bare perusal of the above averments of the tenant in the petition u/s 44 of the Act reveals that it is not a case of damage to the tenanted premises due to failure on the part of the landlord to fulfill his obligations as landlord u/s 44 of the Act and neglect to carry out repairs without which the tenanted premises are not habitable or usable except with undue inconvenience. Herein there are specific allegations that late Mr. Contd..
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(Old No. 76/06).
Ramesh Chand with the help of his servants had broken major portion of the boundary of the wall of the tenanted premises and had also created cracks in the roof of the shop intentionally so that the water and particularly the rainy water may come through the said cracks / holes causing damage to the shop in question; that said late Mr. Ramesh Chand intentionally had kept discarded goods over the roof of the shop which are still causing damage to the tenanted premises. All these allegations do make out a case for exercise of powers by a Civil Court and it does not come within the ambit of Section 44 of the Act. As laid down by the Hon'bleHigh Court in Yogender Pal Bhatia Vs. Rajesh @ Raju & Ors. (supra) and Lekh Ram Khari Vs. Krishan Kumar Vohra (supra) the provisions of Section 44 of the Act are attracted only when there are allegations of neglect or negligence on the part of the landlord to look after the tenanted premises to keep the same tenable, habitable Contd..
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(Old No. 76/06).
and usable except with undue inconvenience. If there are allegations of other deliberate acts of causing damage to the tenanted premises, the tenant, to protect his tenancy right, can only resort to civil remedy. Allegations briefly stated above in the petition u/s 44 of the Act fall in the second / latter category and, therefore, if the tenant wants to protect his tenancy rights he can only approach the Civil Court and the matter is certainly beyond the scope of provisions of Section 44 of the Act. Hence, ld. ARC did not have jurisdiction to try and entertain the petition. The Trial Court has tried to distinguish the case law laid down by Their Lordships in Yogender Pal Bhatia Vs. Rajesh @ Raju & Ors. (supra) and Lekh Ram Khari Vs. Krishan Kumar Vohra (supra) on the ground that the facts of those cases are different from the case in hand. However, it is not so. Besides, what is material is the ratio laid down by Their Lordships. Therein the ratio laid down by Their Contd..
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(Old No. 76/06).
Lordships is that the provisions of Section 44 of the Act are attracted only when there are allegations of neglect or negligence on the part of the landlord to look after the tenanted premises to keep the same tenable, habitable and usable except with undue inconvenience. If there are allegations of other deliberate acts of causing damage to the tenanted premises, the tenant, to protect his tenancy right, can only resort to civil remedy. As mentioned earlier, on the basis of the allegations in the petition u/s 44 of the Act as narrated earlier this case falls in the second / latter category and, therefore, if the tenant wants to protect his tenancy rights he can only approach the Civil Court and the matter is certainly beyond the scope of provisions of Section 44 of the Act.
The aforesaid ratio laid down by Their Lordships is squarely applicable to the facts of this case.
10. In the light of the above discussion and for the Contd..
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(Old No. 76/06).
detailed reasons given therein, I am of the considered view that the impugned order dated 11.07.2006 suffers from legal infirmity and is not sustainable under the law.
11. For the aforesaid reasons appeal is allowed and application under Order 7 Rule 11 CPC is allowed. Consequently, plaint in the petition u/s 44 of the Act stands rejected under Order 7 Rule 11 CPC. The appeal is allowed and is disposed of accordingly. Copy of this order be sent to the Trial Court / Successor Court. TCR be returned. Appeal file be consigned to the record room.
ANNOUNCED IN THE OPEN COURT (GURDEEP KUMAR) ON 2nd Day of May, 2009. D.J.-V-cum-ASJ/ I/C (SOUTH) P.H.C., NEW DELHI.
Contd..