Delhi District Court
Suit No.23/12 vs Sh. Surender Kumar Pahuja on 3 September, 2013
In the court of Ms. Ina Malhotra, Additional District JudgeI
New Delhi District :Patiala House Courts, New Delhi
Suit No.23/12
M/s Wenger & Co.
A Registered Partnership Firm
Through its Registered Partner Sh. Atul Tandon
Having its office at
A16, Connaught Place, New Delhi - 110001.
.........Plaintiff
V E R S U S
Sh. Surender Kumar Pahuja
S/o Late Sh. Khairati Lal
At A17, Connaught Place
New Delhi 110 001.
Also at : B5/170, Safdarjung Enclave
New Delhi ..........Defendant
Plaint presented on : 27.01.2012
Arguments concluded on : 26.08.2013
Judgment on : 03.09.2013
J U D G M E N T
The Plaintiff has filed a suit for permanent and mandatory injunction. As per averments, plaintiff is a partnership firm and had rented out a shop measuring 200 sq. ft. situated on the ground floor of property bearing No.A17, Connaught Place, New Delhi in 1971 to the defendant's father. The area and Suit No.23/12 Page 1 of 22...
specification of the shop were equivalent to the other adjacent shops namely shop No.A17A and A18.
2. The plaintiff's submission is that two eviction petitions had been filed by them against the defendant which were withdrawn on 23.01.2012. On the very same day, on his return from the court, the partner of the plaintiff firm, Shri Atul Tandon noticed a poster put by the defendant on the suit premises "SHOP UNDER RENOVATION WE SHALL BE BACK TO SERVE YOU SHORTLY". The plaintiff has alleged that defendant thereafter indulged in intensive damage to the suit property. The floor level of the suit shop was lowered. The back of the shop was dug out extensively and earth had been removed. Shri Atul Tandon, a partner of the plaintiff firm immediately raised a protest with the working labourers and called the defendant. The defendant on reaching the spot assured the plaintiff that he would not cause any further damage to the suit premises. The plaintiff however found the defendant again carrying out extensive work by removing the earth on the back side of the shop. The plaintiff resorted to calling the police on whose instance the work was stopped at 6.30 pm. The plaintiff also sent a written Suit No.23/12 Page 2 of 22...
communication to the NDMC bringing to their notice the unauthorised activity in the suit shop. The said unauthorised construction was carried out neither with the plaintiff's permission nor with that of NDMC. The NDMC was therefore requested to take immediate necessary action. The defendant's plea was that on account of water seepage, he was carrying out the repairs. The work was again resumed on 25.01.2012 despite the plaintiff's hue and cry. Though the plaintiff approached the local police, they refrained from interfering on the grounds of its being a civil dispute. Finding no other alternative efficacious remedy, the plaintiff immediately filed the present suit and has prayed for passing of a permanent and mandatory injunction directing the defendant to stop causing further damage or construction in the suit premises and to restore the floor etc. of the suit premises to its original state.
3. Various objections have been taken by the defendant on entering appearance in view of which the following issues were framed:
i. Whether the suit of the plaintiff is hit by the provisions of Section 69(2) of the Indian Partnership Suit No.23/12 Page 3 of 22...
Act?
ii. Whether the plaintiff is entitled for the permanent injunction against the defendant as prayed for? iii. Whether the plaintiff is entitled for mandatory injunction as prayed for?
iv. Relief.
4. The plaintiff's partner Shri Atul Tandon, being fully conversant with the facts of the case, has been examined as PW1.
The partnership firm was registered with the Registrar of Firms dated 29.02.1952. The witness has further deposed that the suit property is a shop measuring 200 sq. ft. on the ground floor of A17, Connaught Place, New Delhi. The Site Plan of the same is Ex. PW1/1. The deponent has been a tenant in the said shop since 1971. The shop had been initially rented out to one Sh. Khairati Lal and Ms. R. Kaur. The present deponent is the son of Sh. Khairati Lal. Ms. R. Kaur never claimed any tenancy rights. The defendant has stepped into the shoes of his late father and claimed tenancy right therein. PW1 has further deposed that at the time of leasing, the shop was equivalent to the other adjacent shops Suit No.23/12 Page 4 of 22...
bearing no. A17A and A18. Two eviction petitions had been filed by the plaintiff against the defendant. However, these petitions Ex. PW1/23, were withdrawn by him on 23.01.2012. The same day, on his return from the court, he observed that the defendant had put a banner stating that the shop was under
renovation and would be back to serve shortly. Photographs of the said banner are Ex. PW1/45. On his inspecting the said shop from the inside, he was shocked to see that the entire premises was substantially damaged by the defendant. The floor of the shop had been lowered from its existing level. The back side of the shop was dug up to a large extent and earth was removed. He raised a protest. The defendant came about 2:00pm and assured him that he would not cause any further damage in the premises. However the work resumed in the evening because of which he was compelled to call the police control room. The defendant was directed to stop the work immediately. The next day, PW1 informed the NDMC about the unauthorised construction being carried out in the premises. The said communication which was written by the plaintiff's manager Sh. Charanjeet Singh is Ex. PW1/6 and its receipt was acknowledged by the NDMC at Point Suit No.23/12 Page 5 of 22...
B. However, despite the written complaint no action was initiated by the NDMC. The defendant visited the office of PW1 and gave a written communication Ex. PW1/7 stating that the premises was in bad shape and there was a water seepage on account of which he wished to repair the shop. The plaintiff did not agree to the same as the same was totally false. The defendant continued the work in the shop causing illegal and unauthorised construction despite the plaintiff's objections. The photographs of the damage/unauthorised construction taken by PW1 from his mobile camera are Ex. PW1/811. As the police refrained from taking any action on grounds of being a civil dispute, the plaintiff initiated legal proceedings and filed the present suit on 27.01.2012. The plaintiff has stated that on filing of the suit, a request for appointment of a local commissioner was made. The Local Commissioner appointed by this court visited the suit premises on 30.01.2012 at about 03:00pm. His report is Ex.
PW1/12 and the photographs taken during the local commission are Ex. PW1/1325.
5. In his crossexamination, the PW1 was asked whether there was a legal valid document to show who were the Suit No.23/12 Page 6 of 22...
partners of the plaintiff at the time of the institution of the suit, to which he replied that the same was as per Ex. PW1/26 issued by the Registrar of Firms. He has denied the suggestion that the partnership stood dissolved on the death of Sh. A.K. Tandon on 29.07.2010. He has confirmed that Ex. PW1/1, the Site Plan, filed by him was the same as the Site Plan filed by the defendants in the eviction petitions. He also confirmed that the part of the suit premises lay under the staircase. The witness has denied the suggestion that the defendant had not broken the tiles of the floor or had not dug up the flooring. Ex. PW1/9 was the photograph to corroborate the excavation and that the mud was removed. He has denied the suggestion that all old tiles still existed. Copy of the original lease deed had been tendered in crossexamination as PW1/27. The witness admitted that they had never carried out any repairs in the suit premises but denied that the premises was in need of extensive repairs. PW1 denied the suggestion that the defendant did not carry out any unauthorised construction. His deposition in the examinationinchief has been reaffirmed in the crossexamination by repudiating the suggestions to the contrary. He has also given the details of the unauthorised work carried out Suit No.23/12 Page 7 of 22...
by the defendant as under :
a) All walls have been broken inside the shop;
b) The floor was completely dug up;
c) The back portion of the shop was lowered by 18"
d) The back portion of the wall which is common with property no. A18 and is load bearing wall was shaved by half to create a cavity for storage.
e) On the left hand side of the back portion, the floor was lowered even more under the staircase.
6. The witness has repudiated that the defendant had only carried out necessary repairs in the suit premises.
7. PW2 is an official from the Office of the Registrar of the Firm. The original Form A of M/s Wenger & Comapny was registered in their record at Sl. No. 585 dated 05.09.1956. The copy of the same was Ex. PW1/26.
8. The defendant has been examined as DW1. He has stated that he was a contractual tenant having inherited the rights after the death of his father. The said premises was rented out to his father and to aunt Mrs. R. Kaur. He has deposed that the Suit No.23/12 Page 8 of 22...
partners of the plaintiff firm had been harassing him for the last 30 years by making false allegations and complaints to various government agency including the police and NDMC and not allowed him the peaceful enjoyment of running his shop. He has also pointed out that the partner of the plaintiff has duly confirmed that no repairs had been made by them since inception of the tenancy. Because of the two eviction petitions, the defendant also could not carry out any repairs. The witness maintains that there was no unauthorised construction carried out and the partner of the plaintiff firm, PW1 had unnecessarily shouted at his labourers and had taken pictures. Neither the police nor the NDMC interfered as there was no wrong being committed by him. He has also objected to the report of the local commissioner on the ground that local commissioner had no technical knowledge to give the report.
9. In his crossexamination, DW1 admitted that the terms and conditions of the lease were not settled in his presence and he did not know the specifications of the flooring and walls of the suit property as they existed in 1971. He admitted that he got some work done in the suit property on 23.01.2012 but this was Suit No.23/12 Page 9 of 22...
more by way of repairs for which the floor tiles had to be removed. He has denied that the floor level was lowered by 18"
on the back side of the property or that the defendant had tampered with the load bearing wall to create a storage cavity. He confirmed that no permission was taken from the plaintiff nor any intimation given for carrying out repairs. He has denied the suggestion that the plaintiff had not allowed him to continue the alleged repairs. He also confirmed that his conjecture that the plaintiff firm stood dissolved on 29.10.2006 was only on the basis of the contents of Ex. PW1/26.
10. The defendant also adduced a Retired Executive Engineer of the NDMC as his second witness. He has given a report in respect of the changes made in the suit premises which is Ex. DW2/A (Colly). In his crossexamination, DW2 admitted that he had not taken any sample of the wall nor sent it for Forensic Analysis and the basis of his report was only on a visual inspection.
11. An appraisal of the evidence on record, my observation on the issues framed are as follows : Suit No.23/12 Page 10 of 22...
I S S U E No. 1
Whether the suit of the plaintiff is hit by the provisions of Section 69(2) of the Indian Partnership Act?
12. The defendant has vehemently objected to the maintainability of the present suit on the ground that it was hit by the provision of Section 69 (2) of the Transfer of Property Act. It is his objection that it was obligatory on the plaintiff to have filed a certificate of the existing partners as on the date of filing of the suit. It is his case that Ex. PW1/26 could not be relied upon and does not cure the defect under Section 69(2) of the T.P. Act.
13. I am unable to appreciate the arguments advanced by the Ld. Counsel for the defendant. The certificate issued by the Registrar of Firms had been placed on record confirming that the plaintiff is the registered partnership firm. The name of the partner who has filed the present suit is duly reflected therein. The factum of becoming the partner has been duly entered into the Register of Firms as being from 1981. The factum of cessation of Shri A.K. Tandon has also been duly entered into in the said register, though, it is recorded as retired instead of recording his death. The production of the record of the Suit No.23/12 Page 11 of 22...
Registrar of Firms is sufficient proof as per the provision of Section 68 (2) of the Partnership Act and cannot be negated at the mere asking of the defendant. The defendant's further grievance that the said witness PW1 alleged to be a partner of the plaintiff was not competent to depose as he was not a signatory to the lease is misconceived. It is argued by the Ld. Counsel for the defendant that Shri. M.L. Mehra, Partner of the plaintiff firm who was the signatory to the lease is still alive and therefore the suit should have been filed through him or that he ought to have been examined as a witness. It is pointed out that the plaintiff firm was constituted in the year 1952 when PW1 was not even born. His competence to file the present suit has therefore been assailed.
14. The defendant's arguments do not merit any consideration and are being rejected. A partnership firm is a separate entity in the eyes of law and having been duly registered with the Registrar of Firms, is a legal entity who can file the present suit through any of its partner. The name of PW1 has been duly recorded as a partner thereof which is sufficient corroboration under Section 68 (2) of the Partnership Act.
15. The submission of the defendant that the PW1 was Suit No.23/12 Page 12 of 22...
not even born when the partnership firm came into existence or that he was not a signatory to the lease between the parties and therefore not competent to depose in this case does not hold much water. PW1 is a partner of the plaintiff firm and is fully acquainted with all facts of the case. He is therefore fully competent to depose in the instant case.
16. Under such circumstances, the plaintiff's suit is not hit by the provision of Section 69 of the Partnership Act.
This issue is decided in favour of the plaintiff and against the defendant.
I S S U E No. 2
Whether the plaintiff is entitled for the permanent injunction against the defendant as prayed for?
17. Ld. Counsel for the plaintiff submits that unauthorised construction has been completed and therefore this prayer has become redundant. He has therefore giving up the prayer for issuance of a decree of permanent injunction.
The issue is disposed off accordingly.
Suit No.23/12 Page 13 of 22...
I S S U E No. 3
Whether the plaintiff is entitled for mandatory injunction as prayed for?
18. The plaintiff has prayed that the decree of mandatory injunction be passed against the defendant directing him to put the suit premises in the same state as what was let out to them.
19. For this purpose, the Ld. Counsel for the plaintiff has pointed out that the obligation to maintain the suit premises in its original state is not only contractual, but statutory as well. In terms of contractual liability, reliance is placed on Clause No. 11 of the lease deed Ex. PW1/27 vide which the defendant had agreed to maintain the premises in good condition and not to carry out any alteration or structural changes.
20. As per the statutory duty cast on the defendantlessee under Section 108 (m) and (o) of the Transfer of Property Act, the lessee is bound to keep the property in as good a condition as it was at the time when he was put in possession, except for the normal wear and tear. He is also bound to make good the changes within three months of notice. Further, Section 108 (o) of the Act mandates that he shall not do any act which is destructive or permanently injurious.
Suit No.23/12 Page 14 of 22...
21. The plaintiff is aggrieved mainly by the following changes made in the suit premises, lowering of the floor, affixing of tiles and creating a cavity in the load bearing wall for a storage niche. At the time of filing of the suit, the plaintiff prayed for an immediate inspection of the suit premises by a Local Commissioner and requested for specific report in respect of the following questions :
a) Walls having been broken inside the shop;
b) Floor being completely dug up;
c) The back portion of the shop being lowered by18"
d) A storage cavity made in a load bearing wall at its rear end which was common with property no. A18.
e) Lowering of the floor on the left hand side of the back portion so under the staircase.
22. The Local Commissioner filed his report. Though he had observed that no construction was being carried out at the time of execution of the commission, with respect to the information required, he observed that the level of the floor of the Suit No.23/12 Page 15 of 22...
shop was half an inch lower than the floors of the adjacent properties namely A17A and A18. With respect to the back portion of the shop, the flooring was 18" lower than the adjacent properties. He also confirmed the tampering of the load bearing wall to create a storage cavity therein, and fixing of new tiles on the floor and the walls of the shop.
23. The plaintiff on noticing these unauthorised changes raised a hue and cry and had even resorted to calling the police and filing an complaint with the NDMC. According to the plaintiff, lowering of the floor by 18" has damaged the property and was done with a view to create more vertical height for more useful and effective utilisation of the space. As per the photographs taken, a cavity has also been made in the load bearing walls. It cannot be disputed that the strength of the load bearing walls would get diminished by such action which has been done with the sole purpose of creating storage space.
24. The point for consideration before this court is whether the defendant's changes in the suit premises amount to unauthorised construction or not. This has been clearly elucidated by the decision of the Hon'ble High Court of Delhi in the matter Suit No.23/12 Page 16 of 22...
of Parmeshwari Das Khanna V. Bhola Nath Parihar reported in AIR 1981 Delhi 77. The Hon'ble High Court of Delhi had the occasion to consider a similar situation wherein the tenant had put in a new floor at a lower plinth level. It was adjudged as amounting to reconstruction and making structural changes. The Hon'ble High Court of Delhi had observed in the aforesaid case that a tenant is under a contractual obligation not to indulge in any act of waste or damage to the demised premises during the term of tenancy and he is bound to restore the premises in sound condition after getting it duly repaired. A tenant cannot make structural additions and alterations without the consent of the landlord and alterations which are not authorised would amount to breach of the implied covenants mentioned in cls. (m) and (o) of Section 108 of the T.P. Act.
25. It was further observed in the aforesaid case that repair simply implies renewal and replacement of parts that have decayed and when that is done, the new is put in place of the old. So if the floor of a house has become rotten, the tenant can put a new floor but he is not entitled to make any kind of alteration i.e. by lowering it or by making any other change in any portion of Suit No.23/12 Page 17 of 22...
the building. Where the old floor was dug deep by one foot by the tenant and a new floor relaid at a lower plinth level it would tantamount to reconstruction and structural change in the shop and would not merely be repairs. So even though the original suit was for prohibitory injunction the court was justified in granting mandatory injunction to the tenant committing breach of his legal obligation for keeping the demised premises intact. Where the tenant has made substantial alterations in the demised premises, the landlord is entitled to the relief of injunction.
26. Ld. Counsel for the defendant has pointed out that none of the photographs reflected that the defendant had actually carried out these alleged changes. The same have not been substantiated as there are no photographs of any labourers in action. He has also stated that the plaintiff has not brought on record the original condition of the suit premises. In the absence of any such comparison, the plaintiff has not been able to prove what changes have been made.
27. The said submission of the Ld. Counsel for the defendant is belied by the fact that the defendant has admitted to carrying on the 'repairs'. The plaintiff had taken immediate steps Suit No.23/12 Page 18 of 22...
by informing the police and the NDMC, a fact which the defendant has acknowledged. The photographs evidence that there are new tiles on the floor and the walls. These surely did not exist in the year 1971. The lowering of the back portion of the suit premises is something that the defendant has to explain. The Local Commissioner's report observes lowering of the floor by 18" compared to flooring of the adjacent portions. It would stand to reason that the levels of adjacent properties A17A and A18 would be contiguous with the suit property. The thinning of the load bearing wall is a serious structural damage, putting the whole building to risk. The impairment of a building has to be examined from the point of view of the owner and not from the point of view of the tenant and an alteration of structural nature by the tenant would certainly entitle the landlord to ask for relief by way of injunction of appropriate nature.
28. The pointing of the Ld. Counsel for the defendant that Ex. PW1/1 being the site plan is the same as what was filed by him in the eviction petitions and therefore does not reflect any changes is of no help to the defendant, as the nature of the changes effected cannot be reflected in the site plan.
Suit No.23/12 Page 19 of 22...
29. I am also unable to appreciate the submission of the Ld. Counsel for the defendant that if the plaintiff was so aggrieved, he should have approached the court straightway rather then calling the police or notifying the NDMC. The plaintiff has filed this suit on 27.01.2012 after noticing the breaches on 23rd to 25th January 2012 and taking preventive steps before coming to the court. There is no delay and the plaintiff has been vigilant and prompt in taking action against the defendant.
30. An injunction is a judicial process against one who has invaded or has threatened to invade the rights, legal or equitable, of another to be restrained from continuing or commencing such wrongful acts. It may be either mandatory or prohibitory; the object of an order or decree for injunction may be protective and preventive or restorative. Accordingly, an injunction can be granted to the plaintifflandlord to prevent the breach of an obligation existing in his favour under the tenancy when the defendanttenant invades or threatens to invade the plaintiff's right by using the demised premises in a way not consistent with the covenants of the lease or when he alters the Suit No.23/12 Page 20 of 22...
structure of the building by making excavation or unauthorsed construction etc. on the leased premises.
31. Given the precedent relied upon by the Ld. Counsel for the plaintiff in the matter of Parmeshwari Das Khanna (Supra) which squarely covers the facts of this case, the plaintiff is entitled to a decree for mandatory injunction.
This issue is also decided in favour of the plaintiff. R E L I E F
31. The suit of the plaintiff is decreed with costs against the defendant. A decree of Mandatory Injunction is passed directing the defendant to restore the suit premises to its original state and position i.e. by fortifying the load bearing walls and removing any cavity installed therein, raising the level of the floor on the back side of the suit premises to its original level, and removing tiles where the did not earlier exist.
32. Decree sheet be prepared. File be consigned to Record Room.
Announced. (Ina Malhotra)
Addl.District Judge1
New Delhi District : PHC
New Delhi : 03.09.2013.
Suit No.23/12 Page 21 of 22...
Suit No. 23/12
Present : Counsel for the parties
Vide separate Judgment, the suit is decreed in terms thereof. Decree sheet be prepared.
File be consigned to Record Room.
(Ina Malhotra) Addl.District Judge1 New Delhi District : PHC New Delhi : 03.09.2013.
Suit No.23/12 Page 22 of 22...