Delhi District Court
Sh. Pawan Kumar vs Smt. Beena on 23 January, 2012
In the court of Kuldeep Narayan, Additional Rent Controller (N/E),
Karkardooma Courts Delhi.
UNIQUE I.D. NO.: 02402C0311432009
R. NO. : 115/11
IN THE MATTER OF :
SH. PAWAN KUMAR
S/O SH. RAM HARI
SHOP NO. A416, CHANDER LOK,
SHAHDARA, DELHI 110093
PETITIONER
Versus
SMT. BEENA
W/O SH. CHARAT RAM GUPTA
R/O A416, GALI NO. 2,
CHANDER LOK, SHAHDARA,
DELHI 110093
RESPONDENT
Date of Institution of the Petition : 26.10.09 Arguments Heard : 23.01.12 Date of Judgment : 23.01.12
APPLICATION ON BEHALF OF THE APPLICANT/TENANT UNDER SECTION 44 OF DELHI RENT CONTROL ACT, 1958 R/W SECTION 151 CPC FOR REPAIRING THE ROOF OF THE TENANTED SHOP Judgment :
1. The petitioner filed an application U/s 44 of Delhi Rent Control Act, 1958 (for short "the Act") in respect of one shop in the premises bearing no. R. No. : 115/11 Page No. 1/7
A416, Chander Lok, Shahdara, Delhi 110093 (hereinafter referred to as "the tenanted shop"), seeking permission to repair the roof of the tenanted shop and to deduct the cost of the repair from the rent.
2. The facts relevant to the dispute in question are ; that the petitioner is the tenant of the respondent in respect of tenanted shop; that a latrine is constructed at the top of the tenanted shop from which dirty water is leaking and falling down in the tenanted shop through roof of the shop since the roof is in dilapidated condition; that the applicant had sent the notices dated 14.07.08 and 31.07.08 to the respondent requesting for repairing the roof of the tenanted shop, but the respondent refused to receive the said notices. Hence the present petition for issuing the directions to the respondent to repair the roof of the tenanted shop or in alternative to allow the applicant to repair the roof of the tenanted shop and to deduct the cost of the repair from the rent.
3. The respondent contested the application by filing the WS stating inter alia that the application has been moved just to exert undue pressure on the respondent; that no documentary proof has been filed by the applicant to substantiate the plea of alleged leakage; that the roof of the tenanted shop is not in dilapidated condition nor there is any leakage as alleged; that the respondent had filed one eviction petition U/s 14 (1) (a) of the Act and the present application is a counter blast; the petitioner filed the present R. No. : 115/11 Page No. 2/7 application just to harass the respondent. In reply on merits all the averments as contained in the application have been denied.
4. Applicant filed the replication to the WS reiterating the contents of the application and controverting the defence taken by the respondent.
5. In support of his contentions, the petitioner examined himself as PW1 by way of affidavit Ex. PW1/1 and relied upon the documents Ex. PW1/A to Ex. PW1/E5. The respondent filed her evidence by way of affidavit but failed to examine herself before the court.
6. I heard arguments advanced by Sh. K.P.S. Chauhan, Advocate, counsel for petitioner and Sh. S.K. Tomar, Advocate, counsel for respondent. I have carefully considered their submissions and perused the material available on record.
7. This is an application U/s 44 of the Act seeking directions to the respondent to repair the roof of the tenanted shop or in alternative, to allow the petitioner to repair the roof of the tenanted shop and to deduct the cost of the repairs from the rent. There is no dispute qua relationship of landlord and tenant in the present case. For the just determination of the present application, it is convenient to quote relevant provisions which are as under :
Section 44 (1) Every landlord shall be bound to keep the premises in good and tenantable repairs. R. No. : 115/11 Page No. 3/7 (2) If the landlord neglects or fails to make, within a reasonable time after notice in writing, any repairs which he is bound to make under sub section (1), the tenant may make the same himself and deduct the expenses of such repairs from the rent or otherwise recover them from the landlord:
Provided that the amount so deducted or recoverable in any year shall not exceed one twelfth of the rent payable by the tenant for that year. (2) XXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXX
8. As per the established law, the Act makes it obligatory for the landlord to keep the tenanted premises in good and tenentable condition. The Act has imposed an obligation on the landlord to maintain the accommodation in good condition by effecting necessary repairs. If the landlord fails to make repairs, the tenant may make the application to the Controller who may direct the landlord to make such repairs as may be necessary. Further if the landlord fails to make the repairs even after the notice, the tenant may approach the Controller for permission to carry out the repairs and the Controller, on being satisfied, may allow the tenant to carry out the repairs at his own cost and adjust the amount towards the rent not exceeding one month rent of the premises.
R. No. : 115/11 Page No. 4/7
9. To obtain the order for repair, the petitioner has to establish that he is a tenant at a particular amount per month as rent and the tenanted premises needs repair i.e. tenanted premises is not inhabitable or useable, but for the repairs asked for. Further, the landlord has refused to repair the tenanted premises even after receiving the notice in this respect thereby necessitating the petitioner to invoke the section 44 of the Act. In short, the petitioner has to establish that the tenanted premises needs tenantable repairs and the landlord has failed his obligation to keep the tenanted premises in good repairs.
10. It is settled that the expression 'repair' is different from reconstruction, removal of replacement. The repair is restoring the original shop which has deteriorated due to passage of time.
11. Applying the aforesaid law to the facts of the present case, it is revealed that nowhere in the entire petition or evidence, the petitioner has disclosed the rate of rent of the tenanted shop. The petitioner filed the present application for repairing the roof of the tenanted shop alleging the leakage from the latrine constructed at the top of the tenanted shop since the roof is in dilapidated condition. Perusal of the record reveals that the fact of dilapidated condition of the roof has not been established by the petitioner by leading any positive evidence in this respect. Admittedly no photograph of dilapidated condition of the roof has been filed by the petitioner and the R. No. : 115/11 Page No. 5/7 photograph filed only reflect the grocery items of the tenanted shop. The petitioner in his application, examinationinchief and notice Ex. PW1/A has simply avered about the roof of the tenanted shop being in a dilapidated condition, but failed to lead any positive evidence to establish the dilapidated condition requiring tenantable repairs as such. During his cross examination, PW1 also admitted that no photograph showing the dilapidated condition of the roof was filed on record. Strangely enough, the PW1 even failed to remember the payment of rent to the respondent.
12. As far as the service of legal notice Ex. PW1/A is concerned, the petitioner merely filed the copy of the legal notice and the photocopy of the postal receipt which is not sufficient. The petitioner also should have led the evidence to establish the service of notice Ex. PW1/A upon the respondent.
13. In the entire facts and circumstances as discussed above, I am of the considered opinion that the petitioner has failed to establish that the tenanted shop is in need of any tenantable repairs. The petitioner also failed to establish that the landlord did not perform her obligation to repair the tenanted shop. Even the rate of rent per month of the tenanted shop could not be brought on record by the petitioner, despite the fact that under the provisions, the tenant can recover the cost of the repair of the tenanted premises not exceeding to one month rent.
R. No. : 115/11 Page No. 6/7
14. On the whole, I do not find any merit in the application of the petitioner. The same is hereby dismissed.
15. File be sent to records.
Announced in the open court (Kuldeep Narayan) ARC - 23.01.12 R. No. : 115/11 Page No. 7/7