Delhi District Court
Sh. Pramod Kumar vs Sh. Madan Gopal Dargan on 20 April, 2007
IN THE COURT OF SH. S.S. MALHOTRA, ADDL. RENT
CONTROLLER, KARKARDOOMA COURTS:DELHI
SUIT NO. M(44) 63/04
IN THE MATTER OF:-
Sh. Pramod Kumar
S/o. Sh. Bhagat Sngh
R/o. C-1/176, (Ground Floor),
Yamuna Vihar, Delhi.
..... Petitioner.
Versus
Sh. Madan Gopal Dargan
S/o. C-1/176, First Floor,
Yamuna Vihar, Delhi.
..... Respondent
Date of filing of petition:-5.11.2004.
Date of judgment:- 20.4.2007.
1. By this order I shall dispose of the petition of the petitioner under Section 44 Delhi Rent Control Act with a prayer that direction be given to the respondent to get the kitchen roof and sanitary fittings repaired and also to get the floor level of the ground floor of the tenanted premises raised by atleast 6 inches and in the alternative the applicant / petitioner may be permitted to get the repairs done at his own expenses and deduct the expenses incurred thereof from the rent payable to the respondent.
2. Brief facts as stated by the petitioner in his petition are that he is tenant under the respondent in the tenanted premises with respect to the entire ground floor of house no.C- 176, Yamuna Vihar, Delhi for residential purpose comprising of one drawing room, two bedrooms, kitchen, toilet, front and rear verandahs at the rate of Rs.3,000/- per month excluding electricity and water charges and that the sewerage and electric supply being common to the applicant and landlord. It is further submitted that respondent has been trying to forcibly evict the applicant since 2002 and at that time the applicant / petitioner had had filed a suit for permanent injunction against the respondent titled as Pramod Kumar vs. Madan Gopal bearing suit no.29/02 which was disposed of by the court of Ms. Ruby Alka Gupta, Ld. Civil Judge, Delhi in terms of the undertaking of the respondent that he will not dispossess the plaintiff from the tenanted premises. But the respondent still trying to harass the applicant by employing dirty tricks like refusing mail of the applicant, misguiding the postman or returning the mail of the petitioner by telling that the applicant does not live in the tenanted premises. It is further submitted that the respondent has filed a false and fabricated suit for eviction titled as Madan Gopal vs. Pramod Kumar bearing suit no.698/02 in the court of Sh. Rakesh Kumar, Ld. Civil Judge, Delhi, which is still pending. It is further submitted that recently during August, 04, the applicant / petitioner had gone to Nepal for business purpose and when he returned back on 25/8/04, he was shocked to find that the whole kitchen was inundated with water and whole atta, cereals, grains etc had been rotten and utensils had been damaged. The water had seeped into the kitchen from its roof which is deliberately damaged by the respondent during his absence and now the water is continuously dripping into the kitchen as a result of which the kitchen has become totally unusable. He further submitted that when he asked the respondent / landlord for keeping the tenanted premises in good repair, he flatly refused to do so and as such now the tenanted premises has become unsafe and uninhabitable. It is further submitted that now the applicant is unable to use the kitchen which is essential part of the premises and because of such inconvenience, he has converted one bedroom into kitchen. It is further submitted that because of these acts of the respondent, he has suffered loss and such act of the respondent have also exposed the applicant and his family members to severe health hazard because of unhygienic condition in the kitchen. It is further submitted that the floor level of the ground floor has also come down from the street the level as the street has been raised gradually over last couple of years and as a result, the water logging in the street causes the water to enter into the house of the petitioner thereby bringing garbage and dirt alongwith, which itself put risk to the family of the petitioner but the respondent has deliberately and with malafide intention has not been carrying out the repairs. It is further submitted that the respondent has withheld the essential supply of water from the overhead water tank by closng the valves of the water tank and when asked by the petitioner, the landlord does not allow the applicant to got to the roof to get the water supply inspected and as such he also causes great inconvenience to the petitioner by withholding the essential amenity of water, which is otherwise compelling the petitioner to suffer with respect to cooking, washing and cleaning of household articles and further the roof of the kitchen has been damaged and the same is not in habitable condition. It is further submitted that the repair of the roof of the kitchen and its sanitary fittings is likely to cost Rs.15,000/- and the elevation of floor level is likely to cost Rs.35,000/- and both of these repair are very much necessary for making the tenanted premises habitable and without these repair the premises cannot be used by the tenant and is not habitable and as such he has filed the present petition with a prayer that respondent be directed to get the tenanted premises repaired or in the alternative, the petitioner be permitted to get the same repaired on his own cost and get it deducted / adjusted from the rent of the tenanted premises.
3. The respondent has filed written statement taking preliminary objections that the petition of the petitioner is not maintainable in terms of the provision of Delhi Rent Control Act as the rate of rent of the premises in question is more than Rs.3500/- per month and as such the provision of Delhi Rent Control Act are not applicable. The respondent has already terminated the tenancy of the present petitioner by serving legal notice dt. 30/9/02 and he even has already filed a suit for recovery of possession, rent and mense profits against the present petitioner which is still pending in the court of Ld. Civil Judge, Karkardooma court and the same was filed prior to filing of the present petition. It is further submitted that the petitioner is a chronic defaulter in payment of agreed rent and other statutory dues and had never paid his due share of water bills to the respondent and therefore the aforesaid petition is liable to be dismissed being not maintainable under provision of Delhi Rent Control Act. It is further submitted that the tenancy of the petitioner has already been terminated and therefore the suit is without any cause of action and even otherwise the petitioner has neither served any notice nor intimated for any repair or rectification or replacement of any damaged sanitary / WC fittings or any door or window shutter installations. It is further submitted that the petitioner has carried out lot of decoration / ornamental works in the kitchen and toilet at his own without the permission and consent of the respondent and has failed to point out to the respondent any repair which was indispensable to make the premises habitable / tenantable and as such the petition is liable to be dismissed on this ground. He further submitted that the petition is based on false facts and has been filed with the intention to counterblast the Civil suit for recovery of possession of premises filed by the present respondent against the present petitioner and therefore the petition is malafide and may kindly be dismissed.
On merits, it is submitted that the petitioner was tenant on the ground floor consisting of two rooms only but not with respect to the entire ground floor as mentioned. It is further submitted that both the children of the petitioner are studying outside Delhi and 4-5 strangers usually accompany with the petitioner and family of the petitioner is not residing in the tenanted premises. It is further submitted that petitioner was tenant of the ground floor premises with respect to two rooms only and there was no verandah in front of the said rooms but an open space is part of the tenanted premises and the same is being used jointly by the respondent and the petitioner. It is further submitted that the petitioner had changed some fittings at his own without the consent of the respondent for which appropriate proceedings would be initiated. As far as water supply is concerned, it is submitted that there is one inlet to the storage tanks installed at the terrace and the supply lines are quite separate for the respondent as well as for the petitioner. It is further submitted that the premises was let out on 20/3/98 but subsequently the petitioner was liable to pay enhanced rent in terms of the agreement in between both the parties. But the respondent has failed to comply his obligations towards the respondent with effect from 20/11/01 at the rate of Rs.4500/- per month and as such the petitioner has not come to court with clean hands. It is further submitted that the petitioner is senior citizen and retired govt. servant and has already filed suit for recovery of possession on the basis of genuine ground and he is accordingly following due process as laid down by the law to dispossess the petitioner and even otherwise the petitioner had filed suit for permanent injunction against the respondent to harass the respondent. It is further submitted that there had been no seepage from the terrace into the kitchen and it would have been more severely infurious to the respondent who is the owner of the property and no one would prefer such harm and therefore the petitioner is trying to put false allegations upon the respondent. He denied that no incident took place on his return on 25/8/04 as alleged. It is further submitted that the tenanted premises were / are in good condition and the petitioner had never requested to carry out any specific repair in kitchen and on the contrary the petitioner has carried out decorative and ornamental jobs of his own and the same was protested by the respondent. It is further submitted that the petitioner is still using the kitchen as kitchen and has not converted any room into kitchen as alleged and the kitchen of the petitioner is as usual and is being used by him. As far as the water logging is concerned, it is submitted that rainy water stagnate and is disposed by the pumps deployed by the MCD and as far as the floor level of the tenanted premises is concerned, it is submitted that when it was constructed it was about 75 cms above the road level when the petitioner has completed the ground level. The road level are being raised by the local Authorities and bringing the road level equal to the floor level. But level of the said premises is still about 30 cms above the road level and even otherwise the respondent has not changed any structure which may cause any damage to the petitioner and he further submitted that he has no control on the stagnation of water or lowering of the plinth level and the same facts are beyond the control of the respondent. As far as water supply is concerned it is submitted that in the area of Yamuna Vihar, there is 24 hours water supply and it needs no storage and even otherwise there exists only one water meter and for the entire premises the water dues are charged by the MCD in the name of respondent only and the petitioner has never paid any due share of water charges as alleged and it is further submitted that the premises in question is still in good condition and the similar conditions were at the time of letting out the premises and therefore there is no question of any repair or renewal / rectification of any defect. It is further submitted that the proposed tentative amount given by the petitioner is not correct as he has failed to submit the detailed estimate alongwith requisite details of measurement which was obligatory on the part of the petitioner and that mischievous tactics have been adopted by the petitioner and therefore, it is submitted that the petition of the petitioner be dismissed.
4. The petitioner has not filed any replication to the written statement filed by the petitioner.
5. After completion of the pleadings, parties were directed to lead their respective evidence.
6. Accordingly the petitioner has filed his evidence by way of affidavit which is Ex. PW1/X and has deposed in terms of the petition. The photographs of the damaged roof are Ex. PW1/A to Ex. PW1/C, the negatives of the said photographs are collectively Ex. PW1/2, copy of the notice dt. 19/10/04 is Ex. PW1/3, registered postal receipt is Ex. PW1/4 and certificate of posting is Ex. PW1/5.
He was cross examined by Ld counsel for respondent and in cross examination he admitted as correct that he is tenant on the ground floor and agreement had entered into at the time of inception of tenancy which he signed. He also admitted that at the time of executing the agreement, the rate of rent was Rs.3,000/- per month excluding electricity and water charges and he also admitted that he has filed a petition u/s 45 DRC Act. He also admitted as correct that before filing of the petition, he has not given any notice to the respondent and he also admitted as correct that respondent has not made any change in the floor level of the tenanted premises. He denied the suggestion that he has not paid the rent from November, 01 or that he is not appearing in the civil suit or that since the Yamuna Vihar is low level, water supply by DJB remains throughout the day or that the respondent has not stopped the water supply or that there is no seepage in the suit property. He also denied that the petitioner has not stopped the main valve so as to stop the water reaching the first floor and also that he has not informed the respondent about the leakage of water before filing of the petition. He also denied the suggestion that the photos filed by him are not of the suit premises and further submitted that after requesting the respondent for repair, he himself has got the repair done despite seepage. He also admitted that suit property is still at high level than the road level but he voluntarily that during the rainy season, water comes inside the house. He denied that he is deposing falsely.
7. The respondent has filed his own evidence by way of affidavit which is Ex.RW1/1 and deposed in terms of the written statement. He also proved certified copy of the plaint alongwith all the annexures in the civil suit filed by him against the petitioner which are collectively exhibited as Ex. RW1/A. In cross examination, he deposed that the petitioner is tenant under him and the rent was reserved at Rs.3,000/- per month and there was a clause for 10% increase after every 11 months. He never gave a written notice but asked verbally to increase the rent and Sh. Pramod Kumar gave increased rent for two or three months only. He does not remember as to what was the increased rent paid by him. He further deposed that it might be Rs.3,500/- or Rs.4,000/- per month. He has never issued any rent receipt nor he has any documentary evidence to show that any increased rent was paid by the petitioner. He denied the suggestion that he is being regularly paid the rent at the rate of Rs.3,000/- per month from 98 till now or that the rent at the rate of Rs.3,000/- is being deposited in his bank account in Delhi Nagrik Sahkari Bank with his consent. He admitted that some money is being deposited in the said account and an amount for 10-11 months may have been deposited there. He cannot say as to whether the photographs Ex. PW1/A to Ex. PW1/C pertains to his house. Legal notice Ex. PW1/3 was not received by him at all. He denied the suggestion that legal notice was delivered to him by registered post or UPC.
He further submitted that he completed the construction of the house in the year 1983 and at that time the level of the road in front of the house has risen but he voluntarily submitted his house is still more than one and half feet higher than road level. He denied the suggestion that he has falsely stated that floor level is one and half feet higher than the road level. He denied that he is deposing falsely on this aspect. He admitted that in his written statement he has stated that the house level is about one feet higher than the road level. He also admitted as correct that there is only one water connection for the house in which the petitioner is residing on ground floor and he is residing at first floor. He admitted as correct that he does not allow the family of the petitioner to go to the terrace or that the water tank are on the road. He denied the suggestion that valve of the water tank for ground floor has been closed by him rather submitted that petitioner closed the gate valve at the ground floor and as a result of which he is not getting water at the first floor. He further deposed that the petitioner has filed four cases and one case has been filed by him and he also complained to the Delhi Jal Board as the petitioner wastes water by washing his cars and vehicles. He denied the suggestion that he has deposed falsely regarding the closing of gate valve by the petitioner or that rainy water accumulate into the house during rainy season. He does not know as to whether the petitioner and his family had gone to Nepal in August, 04 or that when he returned back, the house was filled up with water and kitchen roof and walls had seepage of water. He further deposed that the petitioner had never called him to show the state of walls and floor of the kitchen and above the kitchen at the ground floor, there is kitchen on the first floor. He denied the suggestion that in order to harass the petitioner to leave the tenanted premises, he deliberately caused damage to the roof of the kitchen. He further deposed that the petitioner had got a kitchen slab installed, wash basin replaced, tiles fixed without his permission and he has polished the floor of the kitchen. He also got the tiles affixed on the walls of the kitchen and has also replaced WC. He denied the suggestion that kitchen was repaired after giving notice Ex. PW1/3. He denied the suggestion that the aforesaid work was necessary because the kitchen had been damaged by seepage of water. He denied the suggestion that the floor level needs to be raised by 6 inches to avoid the rainy water from entering the tenanted premises. He denied the suggestion that he is deposing falsely.
8. I have heard the arguments and perused the record.
9. U/s 44 of the DRC Act, a tenant is required to plead and prove the following ingredients :-
I. that the tenanted premises require such repairs without which the premises are not habitable except with undue inconvenience, II. that the tenant has given notice in writing to the landlord for making such repairs, and III. the landlord has neglected or failed to make necessary repair after receipt of such notice, in writing, in this regard.
Section 44 of the DRC Act further provides that if the aforesaid ingredients are fulfilled, the tenant may apply to the controller for permission to make such repairs himself and may submit to the controller an estimate of the cost of such repairs and, thereupon, the controller may, after giving the landlord an opportunity of being heard and after considering such estimate of the cost and making such inquiry as he may consider necessary, by an order in writing, permit the tenant to make such repairs at such cost as may be specified in the order and it shall thereafter be lawful for the tenant to make such repairs himself and to deduct the cost thereof which shall in no case exceed the amount so specified, from the rent or otherwise recover it from the landlord. It further provides that amount so deducted or recoverable in any year shall not exceed one half of the rent payable by the tenant for that year and if any such repair is not covered by the said amount in the opinion of the controller and the tenant agrees to bear the excess cost himself, the controller may permit the tenant to make such repairs.
10. According to this Section 44 DRC Act it is obligatory on the part of the landlord to keep the tenanted premises in a good and tenantable condition and if the landlord fails to repair the tenanted premises even after the service of the notice, the tenant may approach the Controller for permission to carry out the repairs and the Controller may allow the tenant to carry out the repairs at his own cost and adjust the amount towards rent not exceeding one month's rent of the premises or if the construction is of such nature which requires additional expenses then the Controller may pass an order in writing and permit the tenant to make such repairs at his own cost as may be specified in the order itself and it shall thereafter be lawful for the tenant to make such repairs himself and to deduct the cost thereof which shall in no case exceed the amount so specified, from the rent or otherwise recover it from the landlord. It further provides that amount so deducted or recoverable in any year shall not exceed one half of the rent payable by the tenant for that year and if any such repair is not covered by the said amount in the opinion of the controller and the tenant agrees to bear the excess cost himself, the controller may permit the tenant to make such repairs.
11. The first ingredient is as to whether there exist relationship of landlord and tenant in between the parties. This fact is not disputed. But, Ld counsel for respondent has simultaneously raised issue with respect to the jurisdiction and as such the same is being discussed herein.
It is argued by Ld counsel for respondent that the rate of rent is more than Rs.3500/- per month and as such the provision of Delhi Rent Control Act are not applicable to the present petition. This fact goes to the root of the proceedings as the court of Ld. Rent Controller would only be competent to pass an order if the court has the jurisdiction to decide the controversy in between the parties. Since the relationship is not disputed and the only fact which is relevant to the jurisdiction of the court is the rate of rent. It is argued by Ld counsel for respondent that the rate of rent is more than Rs.3500/- per month and as such the petition is not maintainable before this court. As far as the evidence is concerned, it is admitted fact that initially the rate of rent was Rs.3000/- per month. The respondent in his cross examination has admitted that he has never served any notice for enhancement of rent under the provision of Delhi Rent Control Act. Prima facie, therefore rate of rent would be Rs.3000/- and it can only be enhanced u/s 6 A Read with Section 8 DRC Act, which reads as under:-
The combined reading of Section 6A r/w Section 8 of DRC Act suggest that rent can be enhanced after the expiry of three years provided the landlord, with the intention to increase the rent has issued a notice in writing to the respondent thereby showing his intention to increase the rent and that too after expiry of one month, of service of such notice, the rent stands enhanced automatically.
Since no notice for enhancement of rent was issued by the respondent. Therefore, as far as the proceedings are concerned it is prima facie clear that rate of rent is Rs.3000/- per month and as such the court has the jurisdiction to entertain the present petition. Ld counsel for respondent has argued that the petitioner herein had himself enhanced the rent in terms of the rent agreement which was entered into in between the parties at the time of inception of tenancy and as such now the respondent cannot resile from the payment of enhanced rent. The court is of the opinion that no agreement can be entered against the law and if any such agreement exists, the same would be by Section 23 of Indian Contract Act and once, the law i.e DRC Act stipulates that how and in what circumstances the rate of rent can be enhanced legally than the rent has to be increased only in accordance with law and not by separate agreement in between the parties. If the rate of rent is more than Rs.3500/- the provisions of Delhi Rent Control Act would not be applicable in between the parties and the court of ARC would not be having any jurisdiction to decide this matter. The parties may entered into any sort of agreement, but the court is of the opinion that if initially the provision of Delhi Rent Control Act are applicable to any proceedings or to any parties then the rent can only be increased u/s 6 A read with Section 8 of DRC Act and not by separate individual agreement. Therefore, since the rate of rent is Rs.3000/- per month and it has never been enhanced legally. the court of Additional Rent Controller has the jurisdiction to entertain the present petition as the rate of rent initially was / is Rs.3,000/- per month. It is also argued by Ld counsel for respondent that a civil suit is pending where similar issue has been framed and the Ld Civil court has to give its findings with respect to the rate of rent. The court is of the opinion that the domain of the court of Rent Controller is altogether different and as such it is restricting itself to its own domain and is giving findings only on the basis of the pleadings which have come before this court. The court is not referring any opinion with respect to the proceedings before Ld. Civil court as law has to take its own course. With these observations, it is held that there is relationship of landlord and tenant and this court of ARC has the jurisdiction to dispose of the present petition.
12. Now, coming to the second aspect i.e the petitioner has served notice upon the respondent, which fact is denied by the respondent. The petitioner in his evidence has stated that he has served legal notice upon the respondent which is Ex.PW1/3 by registered post Ex. PW1/4 and certificate of posting which is Ex. PW1/5. The respondent has cross examined the petitioner on this aspect and he in cross examination has admitted as correct that before filing the present petition he has not given any notice to the respondent. The petitioner throughout has been suggesting that he has served legal notice upon the respondent. But in cross examination he himself has deposed that he has not served legal notice upon the respondent before filing of the petition. The respondent in his evidence has deposed that he has never received any notice for any repair or renewal / rectification of any defect. In cross examination, he submits that legal notice was not received by him. He also denied the suggestion that legal notice was delivered to him by registered post or by UPC. Admittedly, there is no AD card filed by the petitioner on the court file. He has also not obtained any certificate from the postal authority so as to prove on record the fact that notice has been served upon the respondent. No doubt, respondent is residing at first floor and the petitioner is residing on the ground floor. Ld counsel for respondent has argued that there may be manipulation by the petitioner as the petitioner is residing on the ground floor and he himself might have received that notice as AD card has not been filed on court file. The law with respect to service of legal notice by the addressee is well settled.
In this regard reference can be made to Shashi Kumar vs. Dharam Pal Sharma, 1981 (1) RCJ 345, wherein, it was held that the acknowledgment receipt bearing the signature of some person other than the addressee himself does not in itself rebut the presumption of fact under section 114(f) and the presumption of law raised under section 27 of the General Clauses Act. In such a case mere denial of service by the tenant would not suffice. In (1998) 3 ICC 183 (Cal), the service of notice to quit was effected by registered post and acknowledgment returned with signature purporting to be that of the defendant. It was held that plaintiff is entitled to the presumption arising from fact of service (despatch) of notice by registered post and notice must be held to have been duly served on the defendant. In AIR 1918 PC 102, it was held that if a letter properly directed containing a notice to quit is proved to have been put into the post office, it is presumed that the letter has reached its destination at the proper time according to the regular course of business of the post office and was received by the person to whom it was addressed. That presumption would apply with still greater force to letters which the sender has taken the precaution to register and is not rebutted by the fact that a receipt for the letter is produced signed on behalf of the addressee by some person other than the addressee himself. In (1992) 1 Cur LJ 391 (DB) (Delhi), it was held that where the notice under section 106 was addressed at the proper address it could not be said that it was not served upon the tenant only because the acknowledgment card was signed by somebody else on behalf of the tenant and not by the tenant himself. In (1970) 2 MLJ 535, a registered notice with acknowledgment due was sent to the defendant-tenant named Usanarani Bose and the acknowledgment form was received back with the endorsement of acceptance purporting to be over the signature of S. Bose, the husband of the defendant. It was held that the notice must be presumed to have been duly delivered to the addressee through the person purporting to sign the endorsement, as the addressee's authorised representative. In AIR 1958 All 369, it was held that where the notice u/s 106 was received by somebody who signed on behalf of the addressee- tenant, it is the duty of the tenant to prove that the person who signed was neither his servant nor an agent nor a member of his family. In the absence of proof on this point the presumption which arose under section 114, Evidence Act in the case of a registered letter delivered at the house would stand un-rebutted. In AIR 1972 Pat 292, wherein, it was held that where notice is properly addressed and sent by registered post, it would be presumed that the service of the notice has been legally effected. The mere fact that the physical delivery of notice was made to a person other than the addressee would not be of any consequence and would not affect the presumption of proper service.
But the court is of the opinion that to draw a presumption in these circumstances would not be of avail as the petitioner admittedly is residing at the ground floor and it was the duty of the petitioner to serve legal notice upon the petitioner and once the AD card not received back by him, he should have approached the postal authorities to supply the requisite information to him to the effect as to the registered AD letter has been received by the addressee and if so on which date and by whom and this fact gets support when the petitioner himself admits that he has not given any notice to the respondent before filing of the present petition. This fact of getting information from postal authorities becomes more relevant when the petitioner is aware that the respondent may play fraud upon him by refusing and manipulating with postman / postal authorities. Therefore, it is held that respondent has been able to prove that there was no legal notice served upon him before filing of the petition.
13. Now, coming to the fact as to whether the landlord has neglected or failed to make necessary repair after receipt of such notice, in writing, in this regard.
Even otherwise once the court has already held that there is no service of legal notice upon the respondent before filing of the petition, this issue does not require much discussion. But such facts are quite material. The petitioner has not filed any report of the architect / expert so that it can be proved on record that there is damage to the suit property or by way of such damages, the same has become uninhabitable. One of the contention of Ld counsel for petitioner is that when he came back from Nepal on 25/8/04, he found that his kitchen was inundated by water and all the material in kitchen like atta, cereals, grains etc have been rotten as much as the said portion cannot be used as kitchen and the petitioner is using another room as kitchen now. The contention of Ld counsel for respondent on the other hand is that the petitioner is still continuing using the same as kitchen. Not only that he himself has made the kitchen repaired by installing slab, wash basin replaced, tiles fixed without his permission and polished the floor of the kitchen. He also got the tiles affixed on the walls of the kitchen and has also replaced WC. This fact is not disputed by the petitioner. Rather it is submitted that he has done it because the same was necessary as the kitchen has been damaged by the seepage of water. From this fact it is clear that petitioner has already done repair to make the kitchen habitable. It is already held that he has not served any notice upon the petitioner. He has not filed any report of the architect regarding inspection of the kitchen before and after its repair even if needed. He has not filed any report as to how the amount of Rs.15000/- is required and he only submits that an amount of Rs.15000/- is required for the repair rather he submits that he has spent Rs.10,000/- for repair of the roof of the kitchen and the respondent is liable to reimburse the same and an amount of Rs.30,000/- is required for raising the floor level of the tenanted premises. If the petitioner has already constructed or made the necessary repairs then the only question which requires consideration is reimbursing of the same by the respondent and in such circumstances the court is of the opinion that it is not the provision of DRC Act which would assist the petitioner in any manner rather he should have take appropriate remedy for recovery of such amount on the maintenance. No doubt, the question would remain again before the petitioner, as to whether he has done these repairs with the consent of the respondent / landlord or otherwise. But in any case that is not a fact in dispute before this court. But it is clear that the petitioner is taking the contradictory plea throughout. Sometimes he says that he has served legal notice upon the respondent & sometimes he denied it, sometimes he says that Rs.15000/- required to be spent on repairs and then he says that he has already spent Rs.10,000/- for repairing the roof of the kitchen, sometimes he says the roof is still required to be repaired and again submits that he has made some changes in the kitchen. Further the petitioner has not filed any estimate in the court as to what would be the expenses to be incurred of alleged repair and all of these facts goes to prove that petitioner has not come to the court with clean facts. Therefore, the court is of the opinion that the petitioner has failed to prove that the kitchen required any repair on the date of filing of the petition.
14. As far as the relief with respect to withholding of supply water amenity is concerned, the same is not required to be discussed in a petition u/s 44 DRC Act as it is admitted fact that the petitioner has already filed a petition u/s 45 DRC Act. The same is not being discussed much.
15. As far as the fact i.e the raising of ground floor level is concerned, the respondent has admitted in his evidence that the level of the floor is same as it was on the date of inception of tenancy. He also admitted in his cross examination that respondent has done no wrong with the floor level. It is admitted fact that the road level has been increased by the authorities as per their requirement and it is also not disputed even as on today the ground level of the tenanted premises is above to the road level. Apart from these facts, the court is of the opinion that no report of architect has been filed by the petitioner as to the how the ground floor level can be increased as if the ground level is ordered to be increased there would be damage to doors and windows, which have to be uplifted if the floor level is raised. The court is of the opinion that this would go to structural changes in the built-up portion and the tenant in the considered opinion of the court cannot compel the respondent / landlord to make alteration in floor level in such manner where it goes to the structural changes in his property.
16. Keeping in view the facts and circumstances discussed hereinabove, the court is of the opinion that petitioner has failed to prove his case u/s 44 DRC Act. Accordingly, the same is dismissed. No order as to cost. File be consigned to the record room.
(S. S. MALHOTRA)
ADDL. RENT CONTROLLER
ANNOUNCED IN OPEN COURT KKD COURTS,
DELHI.
ON 20.4.07