Delhi District Court
Sh. Girish Kumar Aggarwal vs Smt. Anjula Rani on 17 October, 2014
In the Court of Shri Naresh Kumar Laka
Senior Civil Judge-cum-Rent Controller
District Shahdara, Karkardooma Courts, Delhi
RCA No. 03/14
Unique ID No. 02402C0129522013
Sh. Girish Kumar Aggarwal
S/o Late Sh. Damodar Dass
350, Anaj Mandi, Shahdara, Delhi 110032
.....Appellant
Versus
Smt. Anjula Rani
W/o Sh. Ajay Kumar
R/o 3/128, Gali Ganga Ram,
Shahdara, Delhi 110032
.....Respondent
Date of institution of appeal : 29.04.2013
Judgment reserved on : 12.08.2014
Date of Judgment : 17.10.2014
Final Order : Appeal allowed
First Appeal under Order-XLI against the
judgment and decree dated 22.03.2013 passed by the
Court of Ld. ACJ-CCJ-ARC (East),
Karkardooms Courts, Delhi
JUDGMENT
The present appeal has been preferred challenging the judgment dated 22.03.2013 passed by Ld. Administrative Civil Judge (East), Karkardooma Courts, Delhi whereby the suit of the RCA No. : 03/14 Page No. 1 of 9 Girish Kumar Aggarwal Vs. Anjula Rani appellant/plaintiff was dismissed.
2. I have heard arguments addressed by learned counsel for the parties and perused the record.
3. The background of the suit is that the plaintiff/appellant (who is a tenant) filed a suit for permanent injunction against the respondent/defendant (who is a landlord) with a prayer that the defendants may be restrained to create any interference in carrying out repairs by the tenant in the tenanted premises bearing no. 350, Anaj Mandi, Shahdara, Delhi which was being carried out at his. The Ld. Trial Court dismissed the above suit by holding that the civil court has no jurisdiction to try and entertain this case in view of the specific remedies available with the plaintiff/tenant under Section 44 of the Delhi Rent Control Act, 1958 r/w Section 41(h) of the Specific Relief Act.
4. As regards jurisdiction of the civil court, it is specifically argued by the learned counsel for appellant that in the ordinary cases where the repair is required to be done by landlord or at the expenses of landlord, an application or petition need to be filed under Section 44 of the DRC Act but where the repair is to be done at the cost of the tenant and the damages have been caused on account of an act of the landlord, he can file a suit for permanent injunction before the competent civil court. On the contrary, learned counsel for the respondent argued that the civil court has no jurisdiction when specific remedy has been provided under the DRC Act and the right forum is RCA No. : 03/14 Page No. 2 of 9 Girish Kumar Aggarwal Vs. Anjula Rani the Rent Controller.
5. On the point of jurisdiction of a civil court in such cases, the learned counsel for appellant placed heavy reliance on the case Yogender Pal Bhatia Vs. Sh. Rajesh @ Sonu [116 (2005) DLT 202] wherein it was held that:
"The allegation of the petitioner falls in the second category because it is his case that in spite of knowing fully well that the tenanted premises require repair, not only are the respondents totally neglecting to do anything about it, but are deliberately damaging the property so as to ensure that the petitioner has no option but to vacate the tenanted premises, which actually suits the interest of the respondents.
The philosophy behind rent control legislation is to avoid exploitation of a tenant by an unscrupulous landlord. It is, therefore, necessary to give a meaningful and pragmatic interpretation to the rights of tenants and obligations of landlords under the rent laws. Looked at from this point of view, what are the options before the petitioner in this case, assuming he is right in saying that the repairs will cost about a lakh of rupees? The petitioner has the option of carrying out repairs at his own expense and adjusting the expenditure from rent payable over the next twenty years or vacating the tenanted premises. Neither of these options is realistic, if one accepts the restrictive arguments that the petitioner has a remedy only under the Act. On the other hand, if one accepts that a tenant has a right to protect his tenancy, then it is necessary to permit him to do so by enabling him to take such reasonable steps as may be permissible in law.
Consequently, if it appears (and it does so in this case) that the respondents are not only neglecting to look after the RCA No. : 03/14 Page No. 3 of 9 Girish Kumar Aggarwal Vs. Anjula Rani tenanted premises, but are deliberately causing damage to the tenanted premises, then if the petitioner wants to protect his tenancy rights, he can only resort to a civil remedy. To this extent, therefore, the provisions of the Act cannot come in his way. Any other interpretation would mean that an unscrupulous landlord could deliberately damage the tenanted premises, refuse to carry out repairs and thereby compel his tenant to vacate the tenanted premises, since the tenant would be without an effective or meaningful remedy. Surely this is not the only way to understand the law.
The result is that for the reasons given above, the impugned order must be set aside and the petitioner should be granted permission to carry out repairs in the tenanted premises at his own expense. The petitioner will, of course, have to prove his case before he can recover the incurred expenses from the respondents. The impugned order is set aside and application filed by the petitioner before the learned Trial Judge is, therefore, allowed."
6. The learned counsel for the plaintiff has also filed copy of judgment of learned civil judge bearing suit No.670/09 titled Sri Krishan Bansal vs. Anjula Rani relating to a similar adjoining shop under the same landlord for a similar relief of repair whereby the learned judge held said case maintainable and decreed the said case in favour of tenant. It is also stated that the said judgment has been upheld by the Ld. Appellate Court of Shri Anil Kumar Sisodia in RCA No.09 of 2010. Despite giving ample opportunity, the counsel for respondent has also not placed on record any case-law contrary to the above referred cases. In the light of above referred cases and the peculiar facts of the present case especially the fact that the adjoining property no. 351 has been demolished/removed by the landlord, I am RCA No. : 03/14 Page No. 4 of 9 Girish Kumar Aggarwal Vs. Anjula Rani of the considered opinion that the suit of the plaintiff was/is maintainable before a civil court.
7. From the perusal of the judgment dated 22.03.2013 of Ld. Trial Court, it is also apparent that the said suit was not dismissed merely on the point of jurisdiction but observations were also made on merits in respect of factual matrix of the case. Accordingly arguments were also heard from the parties on the point of factual aspect of the present case.
8. In the suit, the appellant/tenant specifically stated that he was carrying on business of selling papers etc. from the tenanted premises and the condition of the said premises deteriorated substantially and, as such, the plaintiff has shown the following portions of the tenanted premises and the nature of damages as under:
A.Major and minor cracks have appeared in the walls of the above said tenanted premises.
B.The wall marked X-Y is having major cracks because the structure of adjoining property no. 351 has been demolished/removed.
C.That wooden karees of room marked "Z" have been eaten by wild ants and are in broken condition which require replacement and one iron girder also requires for supporting the wooden karees.
D.One brick pillar is required in room Mark "N" in the plan for supporting the existing iron girder at point Marked "A" in the site plan.RCA No. : 03/14 Page No. 5 of 9
Girish Kumar Aggarwal Vs. Anjula Rani E.One another brick pillar is required for the proposed iron girder in the room marked "Z" at point "B".
F.The roof of portion marked "C" in the site plan is of stone slabs over T irons, which used to leak in the rainy season so it require water proofing over its terrace.
G.One door at point "D" in the site plan is fully damaged and requires replacement by a new door.
H.The open Nali in front of the shop which is shown in the site plan is lying blocked so it requires to be cleared and covered by stones so that same may not blocked again and mosquitoes may not breed.
I.The cement plastering of the tenanted premises have scratched at many places and requires re-plastering.
9. From the perusal of aforesaid repairs/work sought to be done, it is clear that the plaintiff is seeking various overhauling of the tenanted premises. In my considered opinion, the plaintiff can only be allowed to perform only such works which come within the definition of "Repairs". As a matter of fact and common knowledge, no specific yardstick can be laid down as to what constitutes a repair. However, guidance can be taken from the following judgments wherein some specific acts were held to be "repairs" within the permissible rights of a tenant:
(i) Ullal Dinkar Rao v. M. Ratna Bai, AIR 1958 Mys 77 -
The distinction between 'repairs' and 'reconstruction' or 'replacement' or 'removal' was dealt with and explained in a Mysore case.
On a consideration of several English cases the law was laid down in these terms:
RCA No. : 03/14 Page No. 6 of 9Girish Kumar Aggarwal Vs. Anjula Rani "The meaning to be given to the word 'repair' in section 11(2) depends upon the context in which occurs. A repair may require a renewal or replacement but all replacements or renewals are not necessarily repairs. There is an essential difference, in the case of building, between a repair and a construction. While the restoration of the stability or safety of a subordinate or subsidiary part of a building or any portion of it, can, in law be considered as a repair, the reconstruction of the entirety of the subject-matter cannot be so regarded".
(ii) Phelps & Co. v. Shalimar Paints, 1980 RLR 646 -
Repair is nothing more than reinstatement of the original shape which may have deteriorated through the passage of time and thus decayed.
(iii) Khajabi v. Muruja Sahab, 1985 (1) RCR 137 (644) -
If the roof required replacement, it would be repairs.
(iv) Nayak Kalidas Motiram v. Menaben, AIR 1975 Guj 36 -
Reconstruction of one of the four walls on account of rains or other external cause has been held to be tenantable repair.
(v) Prond Feat vs. Hard (1890) 25 QBD 42 -
Replacement of any part including the floors or roof or internal walls, which become defective or dangerous owing to lapse of time or the effect of elements, repairs as are sustainable for the building having regard to the age and class.
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(vi) Khajabi vs. Muruja Sahab, 1985 (1) RCR 137 -
Replacement of roof
10. In the light of aforesaid judgments, the nature of damages caused to the tenanted premises and the fact that the right of the defendant was closed to file WS (which means striking out of his defence), I hold that plaintiff has proved his case with respect to permissible repairs sought to be done in the tenanted premises which are, in the opinion of undersigned, as under:
(a) Plastering of walls (marked X-Y).
(b) Replacement of wooden karees of room as
shown at point Z in site plan
(c) Water-roofing and repairing of roof of the portion
as marked C in the site plan
(d) Replacement of door at point D in the site plan
(e) Opening of nali (drain) in front of shop and
coving it from stones.
(f) Cement plastering wherever is required
11. Accordingly, the appeal is allowed and the impugned judgment is set aside. Resultantly, the suit of the plaintiff is decreed for carrying out the aforesaid repairs at his own cost (which he will not claim from the landlord as undertook by him). The plaintiff shall abide by the municipal laws, if applicable and the requirement of NOC, if any from the landlord will not be insisted by the said municipal body. The plaintiff shall take photographs of the damaged portions of the tenanted RCA No. : 03/14 Page No. 8 of 9 Girish Kumar Aggarwal Vs. Anjula Rani premises before commencing the aforesaid repairing works which will be started within 60 days, thereafter complete it within next 60 days from the date of start of work. He is also directed to take photographs after completion of work. Both the sets of photographs be placed on record. The defendant is restrained to interfere into the aforesaid repairing works. The plaintiff is not permitted to construct/erect the brick pillars (as prayed for) since, in the opinion of this court, the same tantamount substantial change of structure which is not covered within the definition of repair. Costs of the suit and appeal are also awarded to the plaintiff/appellant as per rules. Decree sheet be prepared accordingly.
12. Trial court record be sent along with copy of the judgment forthwith. File of this appeal be consigned to record room after placing on record the photographs to be filed by the appellant as ordered above.
Announced in the open court on 17.10.2014 (Naresh Kumar Laka) Sr. Civil Judge-cum-RC Shahdara, KKD Court:17.10.2014.
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