Delhi District Court
Sh. Nand Lal Virmani vs M/S Alpha Agencies on 29 October, 2013
//1//
IN THE COURT OF SATISH KUMAR ARORA, ARC-1 (CENTRAL) TIS
HAZARI COURTS, DELHI.
E-137/09/02
1. Sh. Nand Lal Virmani
s/o Late Sh. Basant Lal Virmani
r/o H.No. WZ-521, Sudershan Park,
New Delhi-110015
2. Sh. Ashok Kumar Virmani
s/o Late Sh. Basant Lal Virmani,
r/o H.No. B-G5A-28A, LIG Flats,
Paschim Vihar, Delhi. ...Petitioners
VERSUS
M/s Alpha Agencies,
H.No. WZ-20, (New No. SN-7) Sri Nagar Colony,
Ashok Vihar Road (Near Bharat Nagar),
Delhi-110052. ...Respondent
Petition u/s 14 (1)(b), (c) & (j) of Delhi Rent Control Act
1. Date of institution of the case : 30.04.2002
2. Date of Judgment reserved : 23.10.2013
3. Date of Judgment pronounced : 29.10.2013
JUDGMENT
1. This is an eviction petition filed by the petitioners against the respondent on the grounds of subletting, misuser and causing of substantial damage.
Petitioners' case
2. Briefly stated, the facts as narrated in the eviction petition are that petitioners are the owners and respondent is a tenant in respect of the tenancy premises which is one room, a verandah with common use of courtyard, latrine and handpump in property bearing no. WZ-20 (new no.
E-137/09/02 Nand Lal & other Vs. M/s Alpha Agencies Page 1 of 23//2// SN-7), Sri Nagar Colony, Delhi-52, more specifically shown in red in the site plan mark 'A' filed with the eviction petition. It is claimed that respondent M/s Alpha Agencies is a tenant since 01.08.1973. Prior thereto, one Nem Chand Jain was a tenant in respect of the tenancy premises w.e.f 07.08.1971. It is claimed that respondent in connivance with the said tenant Nem Chand Jain obtained some writing from the original landlord/predecessor in interest of the petitioners namely Sh. Basant Lal Virmani and this fact came to the knowledge of the petitioners when an eviction petition was filed on the grounds of non payment of rent etc. against the tenant Nem Chand Jain and wherein respondent was impleaded as an illegal subtenant. It is further claimed that the said eviction petition which was sought to be withdrawn by the petitioners was dismissed by the then Ld. ARC as it was held to have been filed against a person who was not a tenant in respect of the tenancy premises. Regarding the purpose of letting, it is claimed that it has been let out for commercial purposes and no written lease deed was executed between the parties.
3. The ground of subletting is pleaded on the facts that the tenancy premises is in possession of illegal sub-lettees namely Sh. Yash Puri and Smt. Roma Puri which was disclosed in an affidavit dated 09.03.2001 filed in the Civil Suit bearing no. 151/99 pending before Sh. Bharat Parashar, the then Ld. Civil Judge, Delhi. It is claimed that earlier these two persons were not the partners of the respondent M/s Alpha Agencies when it became a tenant in respect of the tenancy premises on 01.08.1973.
4. The ground of misuser is pleaded on the facts that the respondent was given the tenancy premises for commercial purposes, however, it started misusing it in as much as an industry was started in the tenancy premises E-137/09/02 Nand Lal & other Vs. M/s Alpha Agencies Page 2 of 23 //3// without the written consent or permission of the petitioners or their late father. An industrial power connection was also obtained by the respondent against the consent and wish of the original landlord Sh. Basant Lal Virmani. The misuser of the premises has also caused damage and is a public nuisance and is also otherwise detrimental to the interest of the petitioners.
5. The ground of causing of substantial damage to the tenancy premises is pleaded on the facts that respondent has caused substantial damage and has materially impaired the value and utility of the tenancy premises by raising unauthorized construction and making structural changes. The extent of the unauthorized construction and the structural changes which has been shown by the petitioners in the site plan mark 'B' as filed with the eviction petition, is as follows :-
(i) That the respondent demolished the latrine and removed the handpump which was for common use by the respondent with other two occupants namely Sh. Champat Ram and Sh. Raghubir Singh.
(ii) That the respondent illegally extended the tenancy premises by covering the verandah and the courtyard, thus, converting the room into a big hall.
(iii)That the respondent broke the wall "A-D" and fixed a shutter "Y-Y1"
at the back of the tenancy premises close to the tin sheeted W.C adjoining the premises belonging to Sh. Champat Lal.
(iv)That the respondent also fixed a shutter "Z-Z1" on the front side of he tenancy premises after 16.07.1999 during the pendency of civil suit no. 151/99 pending in the Court of Ld. Civil Judge, Delhi.
(v)That the respondent built a parchati/mezanine floor in the tenancy premises by raising the height of the walls and also removing the E-137/09/02 Nand Lal & other Vs. M/s Alpha Agencies Page 3 of 23 //4// roof. Six girders (kari's) were also fixed in the wall of the tenancy premises resulting in its damage.
6. It is on the basis of these facts that a prayer has been made to pass an eviction order in favour of the petitioners and against the respondent in respect of the tenancy premises.
Respondent's case
7. After being served with the summons, respondent contested the eviction petition by filing written statement through its partner Yash Puri. In the written statement, a preliminary objection was raised which is with respect to the non maintainability of the eviction petition on the grounds of the petitioners having failed to obtain permission of the Competent Authority (Slum) u/s 19 of the Slum Areas Clearance Act as the tenancy premises falls in a slum area. On merits, while denying the averments of the eviction petition, it was stated that the tenancy premises in occupation of the respondent was taken on rent from Sh. Basant Lal for non residential purposes and for the business of cardboard boxes which the previous tenant Nem Chand was carrying on prior to the induction of the respondent as a tenant. The extent of the tenancy premises was stated to be consisting of a hall measuring 32' x 16'-8" x 28'-1" (9'-6" + 18'-7") x 10'-6", a toilet measuring 4'-9" x 8'-6" fitted with handpump and indian sheet and a passage measuring 4'-9"x8'-6". The hall has two portions divided by wooden planks and wooden support having wooden staircase from inside to have access to the upper portion. The lower portion of the hall has a steel door in the front wall and a steel shutter on the rear side wall adjacent to the toilet and in the passage. The upper portion of the hall has a steel shutter for light and air and for inlet and outlet of the goods on the front wall at the site of opening of the wooden stairs. There is a E-137/09/02 Nand Lal & other Vs. M/s Alpha Agencies Page 4 of 23 //5// ventilator on the front wall which is above the steel main door on the upper portion. There is also an exhaust fan on the upper portion on the rear side above the rear shutter. The extent of the tenancy premises has, thus, been shown in the site plans marked as 'X' and 'X1' filed with the written statement. Regarding the subletting, it was denied and was stated that in the affidavit dated 09.03.2001 filed in the Civil Suit no. 151/99, what has been shown is the names of Yash Puri and Smt. Roma Puri as the partners of the respondent. It was stated that Smt. Roma Puri is the wife of Sh. Yogesh Puri and Sh. Yash Puri is the son of Late Smt. Ram Pyari Puri, the then partners of the respondent firm as on 01.08.1973. It was stated that Yash Puri became the partner during the lifetime of Smt. Ram Pyari when she alongwith Sh. Yogesh Puri were the partners of the respondent firm. It was stated that the possession, occupation and work in the tenancy premises is that of M/s Alpha Agencies, the respondent herein. It was also stated that the predecessor in interest of the petitioners namely Sh. Basant Lal had instituted an eviction petition through the petitioner no. 1 in 1975 registered as E-876/75 against Sh. Nem Chand Jain and M/s Alpha Agencies, respondent herein. It was stated that in the said petition, it was alleged by Sh. Basant Lal through petitioner no. 1 that Sh. Nem Chand had sub-let, assigned or otherwise parted with the possession of the tenancy premises under his occupation to M/s Alpha Agencies without prior consent in oral or in writing since March, 1973. It was stated that respondent became a tenant only w.e.f 01.08.1973. While denying the alleged misuser of the tenancy premises, it was stated that the respondent is occupying the tenancy premises for doing the business and manufacturing of cardboard boxes which was also done by the earlier tenant Nem Chand Jain. Also, the locality wherein the tenancy premises falls is E-137/09/02 Nand Lal & other Vs. M/s Alpha Agencies Page 5 of 23 //6// notified to be a land shown for its use for flatted factories. While denying the other averments of the eviction petition, a prayer was made to dismiss the eviction petition with costs.
8. Petitioner filed the replication therein reiterating and reaffirming the averments of the eviction petition and controverting and denying the averments of the written statement.
Evidence led by the parties
9. To substantiate and prove their case, petitioners got examined two witnesses. AW-1/PW-1 is the petitioner no. 1 Nand Lal Virmani who was examined in chief by way of his affidavit Ex. AW-1/A. AW-2/PW-2 is Sh. Champat Lal who was examined in chief by way of his affidavit Ex. AW-2/A. Following documents were relied upon and proved by the petitioners :-
(i) Ex. AW-1/1 is the certified copy of the relinquishment deed dated 09.04.2001 executed by Smt. Shanta Malik and Smt. Neelam Malik, the sisters of the petitioners, in favour of the petitioners.
(ii) Ex. AW-1/2 is the site plan mark 'A'.
(iii) Ex. AW-1/3 is the certified copy of the eviction petition no. E-876/75 filed by Sh. Basant Lal Virmani against Sh. Nem Chand Jain and respondent M/s Alpha Agencies.
(iv) Ex. AW-1/4 is the certified copy of the written statement filed by M/s Alpha Agencies (respondent no. 2 in E-876/75).
(v) Ex.AW-1/5 is the certified copy of the judgment dated 31.08.1978 passed by the Ld. ARC (4th), Delhi in E-876/75.
(vi) Ex.AW-1/6 is the site plan mark 'B'.
(vii) Ex. AW-1/7 is the certified copy of the plaint filed by the respondent herein in the Civil Suit no. 151/99 dated 16.07.1999.
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(viii) Ex.AW-1/8 is the certified copy of the survey report of the year 1975 of the Municipal Corporation of Delhi with respect to the tenancy premises.
(ix) Ex. AW-1/9 is the certified copy of the order dated 23.07.99 passed by the Ld. Civil Judge in Civil Suit no. 151/99 directing the parties to produce the photographs of the property in dispute (tenancy premises herein) showing the alleged addition/alteration.
(x) Ex. AW-1/10 to AW-1/19 are the photographs of the tenancy premises which were taken pursuant to order Ex. AW-1/9.
(xi) Ex. AW-1/20 is the certified copy of the notice dated 18.05.1976 got served upon the General Manager, DESU by Late Sh. Basant Lal through his counsel Sh. G.D.Tehri.
(xii) Ex. AW-1/21 and AW-1/22 are the certified copies of the postal receipts and the returned A.D.Card.
(xiii) Ex. AW-1/23 is the retained legal notice dated 18.03.2000 got served upon the respondent by Sh. Basant Lal, late father of the petitioners through his counsel Sh. M.G.Dhingra.
(xiv) Ex. AW-1/24 and Ex. AW-1/25 are the postal and UPC receipt of the notice Ex. AW-1/23. Ex. AW-1/26 is the returned AD card thereof.
(xv) Ex. AW-1/27 is the Inspection Report of substantial damages to the tenancy premises prepared by Sh. R.R.Nagpal, Engineer- Valuer, Surveyor and Local Commissioner.
(xvi) Ex. AW-2/1 to Ex. AW-2/6 are the rent receipts for various periods pertaining to the year 1970-75 issued by Late E-137/09/02 Nand Lal & other Vs. M/s Alpha Agencies Page 7 of 23 //8// Basant Lal in favour of the other tenant Sh. Champat Lal (AW-2/PW-2)
10. Respondent, on the other hand, got examined one of its partner Sh. Yash Puri as RW-1. He was examined in chief by way of affidavit Ex. RX.
Following documents were relied upon and proved by the respondent:-
(i) Ex. RW-1/1 which are the two site plans marked 'X' and 'X1'.
(ii) Ex. AW-1/R-1 is again a site plan which the petitioner Nand Lal Virmani was confronted with in his cross examination as PW-1/AW-1.
(iii) Ex AW-1/R-2 is the death certificate of Smt. Ram Pyari Puri which the petitioner Nand Lal Virmani was confronted with during his cross-examination as PW-1/AW-1.
(iv) Ex RW1/2 is the permission granted by late Sh. Basant Lal to the respondent to renovate the tenancy premises.
11. Ld. counsel for the petitioners and Ld. counsel for the respondent were heard and the file including the written arguments was carefully perused and considered.
Ground of eviction u/s 14 (1) (b) of the DRC Act
12. With respect to the ground of eviction u/s 14 (1) (b) of the DRC Act, petitioners in their eviction petition and in their evidence through the testimony of AW-1 (PW-1) Nand Lal Virmani alleged that the tenancy premises is in occupation of illegal sublettees Sh. Yash Puri and Smt. Roma Puri as when the premises were taken on rent by the respondent in the year 1973, these two persons were not its partners. Admittedly, no document or any other material to substantiate the said allegation of fact was brought on record or otherwise proved by the petitioners. Rather, AW-1 (PW-1) Nand Lal Virmani in E-137/09/02 Nand Lal & other Vs. M/s Alpha Agencies Page 8 of 23 //9// his cross-examination dated 26.03.2004 admitted as correct that in the year 1973, father and brother of Sh. Yash Puri, the present partner of the respondent, were the partners in the respondent's firm. Further, he feigned ignorance about Smt. Ram Pyari, late mother of Sh. Yash Puri, also being a partner of the respondent firm in the year 1973. From the said testimony of one of the petitioners, it is apparent that petitioners have failed to prove on record the ground of subletting against the respondent. Also, during the course of arguments, Ld. counsel for the petitioners conceded that their is no evidence on record so as to establish the ground of subletting against the respondent. Thus, so far as the prayer of the petitioners for passing of an eviction order against the respondent u/s 14 (1) (b) of the DRC Act is concerned, the same is rejected being not proved.
Ground of eviction u/s 14 (1) (c) of the DRC Act
13. Clause (c) of the proviso to sub section 1 of section 14 of the DRC Act lays down that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the tenancy premises on the ground that the tenant has used the premises for purposes other than that for which they were let without obtaining the written consent of the landlord.
14. The crucial words u/s 14(1)(c) of the DRC Act are the "user of the premises for a purpose other than that for which it has been let". Coming on to the facts of the present matter, it is an admitted case that the tenancy premises was let out to the respondent on 01.08.1973 for commercial purposes. It is also an admitted fact that the letting out of the tenancy premises was not reduced into writing in the form of a lease deed/agreement. It is, thus, the oral testimony of the witnesses which will throw light on the E-137/09/02 Nand Lal & other Vs. M/s Alpha Agencies Page 9 of 23 //10// alleged misuser.
15. Ld. counsel for the petitioners argued that respondent in its evidence admitted that it took the demised premises for the business of cardboard boxes including manufacturing and this business is being continued since the inception of tenancy. It was further argued that RW-1 Yash Puri in his cross examination has admitted that there was no electricity connection at the time of inception of tenancy. There was also an admission that respondent had applied for and had obtained an electricity connection for manufacturing. It was argued that when there was no electricity provided to the respondent/tenant in the tenancy premises and that the respondent afterwards having obtained an industrial electricity connection in respect of the tenancy premises, apparently there is a misuser of the tenancy premises by the respondent which falls under 14(1)(c) of the DRC Act. While so arguing, Ld. counsel for the petitioners relied upon the judgment of Hon'ble High Court of Delhi cited as Ramesh Bhaskar Kale (since deceased) through LRs Vs. Harkirat Sodhi, 134 (2006) DLT 363 wherein the finding of the ARC that "the use of the tenanted premises for commercial purposes do not include use for industrial purposes and more so for running a factory for electroplating and buffing" was upheld.
16. Ld. counsel for the respondent, on the other hand, argued that u/s 14(5) of the DRC Act, no application u/s 14(1)(c) lies unless the landlord has given to the tenant a notice in the prescribed manner requiring him to stop the misuse of the premises and the tenant has refused or failed to comply with such requirement within one month of the date of service of the notice. It was argued that in the present case, petitioners have failed to prove on record the service of the said notice upon the respondent. It was argued that the notice E-137/09/02 Nand Lal & other Vs. M/s Alpha Agencies Page 10 of 23 //11// Ex. AW-1/23 was not proved by the petitioners to have been served upon the respondent prior to instituting the present eviction petition inter alia on the ground available u/s 14(1)(c) of the DRC Act. It was argued that the returned AD Card identified by PW-1 (AW-1) as AW-1/26 shows the receiving of the notice by Ram Pyari Puri. It was argued that the said report of service of the notice Ex. AW-1/23 has been manipulated by the petitioners as prior to the alleged date of the notice Ex. AW-1/23 and the alleged date of its service upon the respondent, Smt. Ram Pyari Puri was not alive. Reference was made to the death certificate of Smt. Ram Pyari Puri identified as Ex. AW-1/R2 which shows the date of her death as 12.01.1988. It was, thus, argued that once the service of the notice Ex. AW-1/23 has not been proved by the petitioners, their eviction petition u/s 14(1)(c) of the DRC Act does not lie and is to be rejected.
17. Having heard the rival contentions of the Ld. counsel for the parties and having gone through the record, I am of the considered view that the petitioners have established on record the issuance of service of notice Ex. AW-1/23 upon the respondent. Merely because the returned AD card Ex. AW-1/26 bears the signatures of Ram Pyari Puri, it cannot be said that the petitioners have manipulated the service of the notice upon the respondent. Rather, an inference can be drawn against the respondent that in order to avoid the service of notice Ex. AW-1/23, signatures of Ram Pyari Puri were deliberately affixed on AD card Ex. AW-1/26 knowing well that she is not alive or that she has already died way back in the year 1988. Moreover, it has not been disputed by the respondent that the address furnished on the postal receipts Ex. AW-1/24 and AW-1/25 and on the AD card Ex. AW-1/26 is not the correct address of the respondent's tenancy premises. The presumption thus E-137/09/02 Nand Lal & other Vs. M/s Alpha Agencies Page 11 of 23 //12// raised u/s 27 of the General Clauses Act against the respondent has not been dislodged by producing on record any other cogent evidence. Now, coming on to the other aspect of the matter which concerns the misuser of the tenancy premises by the respondent, as already noted, it is a case of oral tenancy between the parties and the nature of work which was permitted to be carried out by the respondent is to be gathered from the oral testimonies of the parties. Testimony of AW-1 (PW-1) Nand Lal Virmani reveals that he was not aware of the purpose of letting. His cross examination dated 18.09.2003 serves as the necessary referral wherein while admitting that respondent is a tenant w.e.f 01.08.1973, AW-1 showed his ignorance by stating that he does not know that the premises were let out for commercial purposes. However, AW-1 admitted that the respondent is doing the business in the demised premises from the very beginning. In his further cross examination dated 11.07.2005, AW-1 (PW-1) admitted that in the tenancy premises cardboard work is being done since the inception. Thus, through the testimony of AW-1 nothing has come on record about the alleged misuser of the tenancy premises by the respondent. It is also to be seen that petitioners have laid much stress on a letter dated 18.05.1976 addressed to the General Manager (DESU) from the advocate Sh. G.D.Tehri of Basant Lal Virmani through his son/petitioner no. 1 Nand Lal. The said notice was identified and proved as Ex. AW-1/21. Perusal of the said notice reflects that the sanction of electricity connection in favour of respondent M/s Alpha Agencies was objected not on the grounds of misuser but on the grounds that M/s Alpha Agencies is an illegal sub tenant in the tenancy premises. The said alleged fact of respondent being an illegal sub tenant is clearly not in issue as even AW-1 (PW-1) in his cross examination dated 11.07.2005 has admitted that respondent is not a E-137/09/02 Nand Lal & other Vs. M/s Alpha Agencies Page 12 of 23 //13// subtenant. Even the other witness of the petitioner who is AW-1 Champat Lal had stated in his testimony that respondent is a tenant in the tenancy premises for the last more than 30 years. Once the respondent is a tenant, the letter Ex. AW-1/21 has no significance or relevancy so far as section 14(1)
(c) of the DRC Act is concerned. Also, the citation of Ramesh Bhaskar Kale as relied upon by the Ld. counsel for the petitioners is not applicable to the facts in hand as in the said case the purpose of letting was in writing through a lease deed and was for commercial purposes, more specifically for the purposes of opening a showroom in the tenancy premises. Subsequently, instead of running a showroom the tenant started running a factory by shifting huge machinery in the tenancy premises. In the present case, the consistent stand of the respondent has been that the tenancy premises is put to use for the manufacture of cardboard boxes. One more aspect of the matter concerning section 14(1)(c) of the DRC Act and as provided u/s 14(5) of the DRC Act is that no order for eviction can be passed unless the misuser of the premises is of such a nature that it is a public nuisance or that it causes damage to the premises or is otherwise detrimental to the interest of the landlord. As has been seen, petitioners have failed to prove or convince on any of the said grounds. Thus, the prayer of the petitioners u/s 14(1)(c) of the DRC Act fails and is accordingly rejected.
Ground of eviction u/s 14 (1) (j) of the DRC Act
18. With respect to the ground of eviction u/s 14 (1) (j) of the DRC Act, case of the petitioners has been that whereas one room, a verandah with common use of courtyard, latrine and handpump in house no. WZ-20, Sri Nagar Colony, Delhi-52 was let out to the respondent, substantial damage to it E-137/09/02 Nand Lal & other Vs. M/s Alpha Agencies Page 13 of 23 //14// was caused by carrying out following additions/alterations :-
(a) By demolishing the latrine and removing the handpump meant for common use.
(b) By illegally extending the tenancy premises by covering the verandah and the courtyard thereby converting the room into a big hall.
(c) By breaking the wall "A-D", fixing a shutter "Y-Y1" at the back of the tenancy premises close to the tin sheeted W.C adjoining the premises belonging to Sh. Champat Lal and fixing a shutter "Z-Z1"
on the front side of the tenancy premises after 16.07.1999.
(d)By constructing a parchati/mezanine floor in the tenancy premises by raising the height of the walls, removing the roof and fixing six girders (kari's) in the wall of the tenancy premises resulting in its damage.
19. The extent of the aforesaid substantial damage was sought to be proved by the petitioners through the testimony of petitioner no.1/AW-1 Nand Lal Virmani and AW-2 Champat Lal as well as by relying upon and proving the following documents :-
(i) Site plan Ex. AW-1/2 showing the original extent and description of the tenancy premises.
(ii) Site plan Ex. AW-1/6 showing the alleged alterations/additions/ constructions.
(iii) Certified copy of the written statement Ex. AW-1/4 filed by the respondent in the eviction petition E-876/75 wherein the description of the tenancy premises as given by the respondent was only comprising of one big hall.E-137/09/02 Nand Lal & other Vs. M/s Alpha Agencies Page 14 of 23
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(iv) Certified copy of the plaint Ex. AW-1/7 filed by the respondent herein in the civil suit for permanent injunction wherein the extent of the tenancy premises was shown as comprising of one big hall with one door on the front and one shutter at its back alongwith a toilet attached to it.
(v) The survey report Ex. AW-1/8 of the MCD for the year 1975 wherein the extent of the tenancy premises with the erstwhile tenant Nem Chand Jain was shown as one hall.
(vi) Photographs Ex. AW-1/10 to Ex. AW-1/19.
(vii) Report Ex. AW-1/27 of the Surveyor/Engineer R.R.Nagpal.
20. Ld. counsel for the petitioners argued that respondent has taken inconsistent stands in various litigation between the parties. It was argued that as against the details and description of the tenancy premises given by the respondent in the written statement in the present eviction petition, the description given in the earlier eviction petition and the civil suit filed by the respondent herein is clearly at variance. It was also argued that the photographs Ex. AW-1/10 to Ex. AW-1/19 were admitted by RW-1 in his cross examination and these photographs clearly show raising of fresh construction, walls and fixing of rolling shutters in front and back portion of the tenancy premises. It was also argued that the survey report for the year 1975 which is Ex. AW-1/8 also gives the description of the tenancy premises as comprising of a hall. It was further argued that respondent had failed to extract anything contrary in the cross examination of petitioner no. 1/AW-1 (PW-1) Nand Lal Virmani. It was further argued that petitioners through the testimony of AW-1 Champat Lal also proved on record that the tenancy premises originally comprised of a room with a verandah and a courtyard and a latrine and E-137/09/02 Nand Lal & other Vs. M/s Alpha Agencies Page 15 of 23 //16// bathroom for common use. While arguing, Ld. counsel for the petitioners also relied upon the following citations :- (i) Shakuntla Devi Vs. Avtar Singh, 113 (2004) DLT 454, (ii) Pearey Lal & Anr. Vs. Surendra Nath & Ors., 162 (2009) DLT 412, (iii) Raghbir Singh Vs. Kanahya Lal & Anr., 21 (1982) DLT 1.
21. Per Contra, Ld. counsel for the respondent argued that in the present case, petitioners have given the alleged details of causing substantial damage to the tenancy premises in para 18 (a) (ii) - A to H respectively of the eviction petition. It was argued that prior to instituting the present eviction petition, it is an admitted case that the petitioners through their predecessor in interest Basant Lal have filed an eviction petition registered as E-876/75 alleging therein respondent no. 1 Nem Chand Jain to be a tenant and respondent no. 2 M/s Alpha Agencies (respondent herein) to be an illegal sub tenant. It was argued that even in the said eviction petition which was dismissed by the then Ld. ARC vide order dated 31.08.1978, causing of substantial damage to the tenancy premises was imputed against the respondent no. 1 Nem Chand Jain to the extent that the tenancy premises has been substantially damaged by breaking and converting the room,verandah and the open courtyard into a big hall. It was argued that thus insofar as the conversion of the tenancy premises into one big hall is concerned, the same has been attributed to the erstwhile tenant Nem Chand Jain and not to the respondent herein. So far as the other alleged alterations/additions which includes construction of a parchatti/mezanine floor is concerned, Ld. counsel for the respondent argued that from the detailed cross examination of AW-1 (PW-1) Nand Lal Virmani, respondent has succeeded in establishing on record that no alleged alteration/addition was ever done by the respondent and that the description of the tenancy premises is as per the description given by the respondent in E-137/09/02 Nand Lal & other Vs. M/s Alpha Agencies Page 16 of 23 //17// its written statement coupled with the site plan Ex. AW-1/R1. It was argued that AW-1/PW-1 in his cross examination had stated that the site plan Ex. AW-1/2 and Ex. AW-1/6 were prepared by the Architect Nagpal. It was argued that in his further cross examination, petitioner no. 1/AW-1 admitted that the Architect did not enter the tenancy premises nor saw any portion thereof. He further stated that the description of the tenancy premises from inside was given by him to the Architect and it was then that he prepared his report Ex. AW-1/27. It was argued that this admission of the petitioner no. 1 in his cross examination that the Architect who had prepared the report Ex. AW-1/27 and the site plan Ex. AW-1/2 and AW-1/6 respectively did not enter the tenancy premises nor saw any portion thereof demolishes the entire case of the petitioners regarding causing of substantial damage. It was further argued that even the photographs Ex. AW-1/10 to AW-1/19 have not been proved by the petitioners as their negatives were never brought on record. Reference was also made to the cross examination of AW-1 dated 12.04.2005 wherein the witness stated that he does not know the name of the photographer who took the said photographs. The witness also admitted that he does not have any photograph of the year 1973 for comparing the photographs Ex. AW-1/10 to Ex. AW-1/19. It was argued that when the case of the respondent has been that these photographs pertain to the year 1973, the onus was upon the petitioners to have established by some cogent evidence that the photographs Ex. AW-1/10 to AW-1/19 were of a different period. It was further argued that in his cross examination dated 11.07.2005, initially AW-1 admitted that the tenancy premises was let out as per Ex. AW-1/R1 which is the site plan of the tenancy premises filed by the respondent. It was argued that it was only upon being prompted by his counsel that the witness E-137/09/02 Nand Lal & other Vs. M/s Alpha Agencies Page 17 of 23 //18// changed his track and denied the site plan Ex. AW-1/R1 as the correct site plan. Regarding AW-2 Champat Lal, it was argued that he is an interested witness and has not supported the petitioner's case. Reference was made to his cross examination dated 25.10.2007 wherein there is an observation of the Court that the witness was trying to evade answering the questions put to him. A warning was also given to the witness to answer specifically to the questions put to him. It was thus argued that the petitioners have failed to prove their case u/s 14(1)(j) of the DRC Act against the respondent.
22. Before taking up the rival contentions of the Ld. counsel for the parties, it is deemed fit to make a reference to the law regarding s. 14 (1) (j) of the DRC Act which was summarized by Hon'ble High Court of Delhi in Suraj Prakash Chopra Raj Kumar Vs. Baij Nath Dhawan & Anr 103 (2003) DLT 645 as follows :-
i) the onus of proving that the tenant has caused substantial damage to the demised premises is upon the landlord.
ii) landlord must prove that addition and alteration in the tenancy premises is carried out by the tenant.
iii) tenant has made the construction without the consent of landlord.
iv) the said construction has materially affected the tenancy premises and further that the construction which had been carried out by the tenant had materially altered the premises.
v) court must determine the nature, character of the construction and the extent to which they make changes in the structure of the premises having regard to the purpose for which the premises have been let out.E-137/09/02 Nand Lal & other Vs. M/s Alpha Agencies Page 18 of 23
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vi) landlord has to prove it by cogent evidence and wherever necessary expert witness should be examined.
vii) an eviction order under clause (j) could be passed if the tenant has carried out such additions or alterations and structural changes in the tenancy premises which had brought about material impairment in the value and utility of premises.
viii) every construction or alteration does not impair the value and utility of the building and that construction must be of material nature which should substantially diminish the value of the building either from commercial and monetary point of view or from utilization aspect of the building.
ix) a temporary alteration or addition which can be easily repaired without causing damage to the structure is not substantial damage to the tenancy premises.
x) every change, addition or alteration in the tenancy premises will not invite eviction of the tenant under clause (j) and that each case would depend upon its own facts.
xi) the impairment of the value and utility of the building is to be seen from the point of view of the landlord and not tenant.
23. Applying the principles as aforesaid to the facts of the present case, it is to be seen that when the tenancy was created in favour of the respondent in respect of the tenancy premises on 01.08.1973, no written document was executed. The description of the tenancy premises which has been given by the petitioners as comprising of one room, a verandah with common use of courtyard, latrine and handpump is to be seen and analyzed from the testimony of the witnesses examined by the parties and the documents E-137/09/02 Nand Lal & other Vs. M/s Alpha Agencies Page 19 of 23 //20// proved through them. As is to be seen, whereas except the site plan no other document was proved on record by the respondent's side, various documents as already noted were relied upon by the petitioner's side. One such document is the earlier eviction petition filed by the predecessor in interest Sh. Basant Lal Virmani of the petitioners herein and which has been identified and proved as Ex. AW-1/3. In the said eviction petition, causing of substantial damage to the tenancy premises was imputed against the erstwhile tenant Nem Chand Jain to the extent that the room, verandah and the open courtyard was alleged to have been converted into a big hall. This allegation of converting the tenancy premises into a hall can also be noted from the survey report of the MCD which has been proved by the petitioners as Ex. AW-1/8. In the said report wherein the inspection is shown to have been carried out on 20.02.1974 shows the extent of the tenancy premises to be under the tenancy of Nem Chand Jain as comprising of one hall of 12x20. This description of the tenancy premises as a hall is clearly contrary to the description of the tenancy premises as given by the petitioners in the present eviction petition. Going further, respondent herein who was impleaded as respondent no. 2 in the earlier eviction petition had filed its written statement which was proved on record by the petitioners as Ex. AW-1/4. In the said written statement in the reply on merits, in para no. 8 the description of the tenancy premises as given by the respondent has been shown as comprising of one big hall. This description of the tenancy premises as one big hall is clearly an admission of the respondent in the earlier proceedings and therefore, notwithstanding the fact that there are variations in the testimony of AW-1 (PW-1) Nand Lal Virmani regarding the extent of the tenancy premises, it can be concluded that the exact description of the tenancy premises when E-137/09/02 Nand Lal & other Vs. M/s Alpha Agencies Page 20 of 23 //21// respondent was inducted as a tenant was comprising of a hall. This conclusion is also endorsed from the plaint filed by the respondent in the Civil Suit for Permanent Injunction instituted by it inter alia against the petitioners herein. Even in the said plaint, certified copy whereof was identified and proved as Ex. AW-1/7, respondent has made a mention of the tenancy premises as that of a big hall. With respect to the issue of photographs Ex. AW-1/10 to AW-1/19, the contention of Ld. counsel for the respondent that these photographs have not been duly proved by the petitioners has no merits as the veracity of these photographs was admitted by RW-1 in his cross examination when he stated that there was directions in the civil suit instituted by respondent herein that photographs of the property in dispute shall be taken by the photographer. RW-1 also admitted that the photographs Ex. AW-1/10 to Ex. AW-1/19 pertains to the property in dispute/the tenancy premises. The existence of miyani/mezanine floor was also admitted by RW-1, however, with a rider that it was in existence since the inception of tenancy. This assertion of the witness that the miyani existed even at the inception of the tenancy is contradicted by the stand taken up by the respondent in the earlier eviction petition wherein as has already been noted the details of the tenancy premises as given by the respondent was only that of a hall and not the miyani/mezanine floor. Once the photographs Ex. AW-1/10 to Ex. AW-1/19 are admitted by the respondent's witness, it can be seen that there is a fresh construction/fixing of a shutter in the photographs Ex. AW-1/10, AW-1/11 and Ex. AW-1/12. Fixing of another shutter on the rear side is also evident from the photographs Ex. AW-1/13 and AW-1/14 respectively. From the photograph Ex. AW-1/15, the mezanine floor/parchatti with wooden stairs is also evident. From the photographs Ex. AW-1/16 to E-137/09/02 Nand Lal & other Vs. M/s Alpha Agencies Page 21 of 23 //22// Ex. AW-1/19, some fresh construction by the use of new and old bricks on the roof of the tenancy premises is also evident. The raising of the height of the ceiling with fixing of six girders is also apparent. Regarding the contention of the Ld. counsel for the respondent that even if these photographs are held to be admitted by the respondent, then also, it has not been proved that these photographs are not of the year 1973, again it has no merits. As is to be seen, AW-1 (PW-1) in his examination in chief relied upon and proved certified copy of the order dated 23.07.1999 passed by the Ld. Civil Judge in Civil Suit no. 151/99 as Ex. AW-1/9. Perusal of the said order reflects that it was only upon the directions of the said Court that the photographs were obtained by the parties to the suit who are also the parties to the present eviction petition. Moreover, in one of the photographs Ex. AW-1/15, one of the Directors of the respondent is seen standing on the wooden stairs. Thus, petitioners have succeeded in establishing that the respondent has carried out additions/alterations/fresh construction in the tenancy premises without their consent. The nature of the said alterations/additions/constructions have by all means brought about material impairment in the value and utility of the premises which is to be seen from the point of view of the landlord and not the tenant. Thus, these additions/alterations/constructions which are to the extent of fixing of a shutter "Y-Y1" at the back of the tenancy premises close to the tin sheeted W.C adjoining the premises belonging to Sh. Champat Lal, fixing of a shutter "Z-Z1" on the front side of the tenancy premises and the construction of a parchati/mezanine floor in the tenancy premises by raising of the height of the walls, removing of the roof and fixing of six girders (kari's) in the wall of the tenancy premises, qualify to be called as causing substantial damage to the tenancy premises by the respondent. This causing of substantial damage E-137/09/02 Nand Lal & other Vs. M/s Alpha Agencies Page 22 of 23 //23// by the respondent has also been more specifically shown in the site plan Ex. AW-1/6 and in the photographs Ex. AW-1/10 to AW-1/19 respectively. Thus, the prayer of the petitioners u/s 14(1)(j) of the DRC Act is allowed.
24. In view of the foregoing, whereas the eviction petition is dismissed u/s 14(1)(b) and (c) of the DRC Act, it is allowed u/s 14(1)(j) of the DRC Act. Be put up for consideration on the point of section 14(10) of the DRC Act for 10.12.2013.
(Announced in the open court
on 29.10.2013) (Satish Kumar Arora)
ARC-1/Central/THC/Delhi
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