Delhi District Court
Sh. Adesh Kumar Gupta vs Sh. Om Prakash (Now Deceased) on 22 March, 2021
IN THE COURT OF SH. AJAY NAGAR,
ADDITIONAL RENT CONTROLLER-2 (CENTRAL),
TIS HAZARI COURTS, DELHI.
CNR No.DLCT03-000019-2015
E No. 80/15
ARC No. 77128/16
1. Sh. Adesh Kumar Gupta
S/o Sh. Azadi Mal
R/o 1095, Gandhi Gali,
Fatehpuri, Delhi-110006.
2. Smt. Babita Gupta
W/o Sh. Adesh Kumar Gupta
R/o 1095, Gandhi Gali,
Fatehpuri, Delhi-110006. ... petitionerss
VERSUS
1. Sh. Om Prakash (Now deceased)
R/o Mpl No. XII/3328
Old 4482-85, Aryapura,
Subzi Mandi,
Delhi-110007.
Also at:
31, Pragatisheel Apartment
Plot No. 39, Sector-9
Rohini, Delhi-110085.
I) Sh. Rampal (son of the deceased)
S/o Late Sh. Om Prakash
R/o Flat-31, Pragatisheel Apartment
Plot No.39, Sector-9
Rohini, Delhi-110085.
2. Smt. Usha Sahni
W/o Sh. Ashok Kumar
R/o Mpl no.XII/3328
ARC No.77128/16 Adesh Kumar Gupta Vs Om Prakash 1
Old 4482-85, Aryapura,
Subzi Mandi, Delhi-110007. .... Respondents
Date of Filing: 26.03.2015
Date of Judgment: 22.03.2021
JUDGMENT
1. Brief facts of the present case are that on 26.03.2015, the petitioners filed the present petition Under Section 14 (1) (b) and (j) of the Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act") praying to this court to pass an order for eviction in favour of the petitioners and against the respondents in respect of the property bearing MPL No. 3328 consisting of one room, Verandah, latrine and open courtyard on ground floor of part of the abovementioned property bearing no. (New 3328-31), (old) 4482-85, consistng of Ground Floor and 1st Floor along with terrace roof rights upto sky) constructed on piece of land measuring 155.51 sq. mtrs. approx. situated at Aryapura, Subzi Mandi (Ward No. XII), Delhi-110007 as shown in red color in the site plan in annexed petition (hereinafter referred to as "tenanted premises").
2. It is inter-alia averred by the petitioners that petitioners are the joint owners of the the property bearing MPL no. XII/3328, Old 4482-85, Aryapura, Subzi Mandi, Delhi-110007 having purchased the same vide registered sale deed dated 08.01.2010. That the respondent no.1 Sh. Om Prakash is the ARC No.77128/16 Adesh Kumar Gupta Vs Om Prakash 2 tenant in the tenanted premises. That the respondent no.1 has vacated the tenanted premises and sublet the same to the respondent no.2 without seeking permission in writing from the petitioners. That the petitioners came to know about the subletting in February, 2010. That the respondent no.2 has occupied the tenanted premises and has also made substantial structural changes as per own admission in her written statement in para 3 on merits in the suit for injunction filed by the plaintiff. That the respondent no.1 is the recorded tenant of the premises and has illegally given the possession of the tenanted premises to the respondent no.2 on 03.03.2009 by claiming himself to the owner of the suit property.
Lastly, it is prayed by the petitioners that an eviction order may be passed.
3. Written Statement was not filed by the respondents in response to petition filed by the petitioners U/S 14 (1)(a)(b) of D.R.C Act, 1958 despite ample opportunity and the defence was struck off by the Ld. Predecessor o this court and even appeal against such order was dismissed.
4. Thereafter, the petitioners examined Sh. Adesh Kumar, as PW1, PW2 Sh. Parveen Kumar Rana, PW3 Sh. Rajender Singh, PW4 Ms. Simmi Chaudhary and they relied upon several documents. They were cross examined by Ld. Counsel for respondent no.2. Thereafter, PE was closed.
ARC No.77128/16 Adesh Kumar Gupta Vs Om Prakash 3
5. I have heard the arguments advanced. I have also carefully gone through the testimonies of the witnesses, documents, case law relied upon and material on record.
LANDLORDSHIP AND SUBLETTING 14(1)(b):-
6. Perusal of petition shows that the petitioners have claimed to be landlord and owner of the tenanted premises on the basis of Registered Sale deed dated 08.01.2010 Ex.PW1/1.
On the other hand, the respondents have not filed written statement on record. It is pertinent to mention here that summons were issued to both the respondents but since none appeared on behalf of respondent no.1, he was proceeded ex- parte on 05.11.2015. Respondent no.2 although made appearance before the court but did not file the written statement despite ample opportunity. Ultimately, the defence of respondent no.2 was struck off by the court. Respondent no.2 preferred appeal against such order but the same was dismissed by Ld. RCT. As such, there is no written statement filed on record either by the respondent no.1 or respondent no.2.
7. Record further shows that petitioner no.1 Sh. Adesh Kumar Gupta examined himself to prove his case and relied upon several documents, i.e., sale deed Ex.PW1/2, legal notice Ex.PW1/3 later on marked as Mark B, certified copy of suit filed by plaintiff Ex.PW1/4, certified copy of written statement ARC No.77128/16 Adesh Kumar Gupta Vs Om Prakash 4 Ex.PW1/5 and certified copy of survey report along with rent receipts marked as Mark A.
8. Record also shows that PW3 produced sale deed along with site plan dated 06.01.2021 Ex.PW2/1 executed by Mohd. Vaqar. PW3 produced sale deed executed by Ms. Shakeena Bi in favour of Mohd. Vaqar Ahmed Ex.PW1/3. PW4 from NDMC produced record Ex.PW1/R3.
9. Record also shows that all the witnesses and petitioner no.1 were cross examined by the Ld. Counsel for the respondent no.2. Perusal of petition shows that the petitioners have claimed to be landlord and owner of the tenanted premises by virtue of sale deed Ex.PW1/1. On the other hand, no written statement has filed by the respondent for the reasons as mentioned earlier. As such, the respondents could not controvert the averments made by the petitioners in the petition. Moreover, the petitioners have placed on record sale deed Ex.PW1/1 executed by Smt. Sakina Bi in favour of Mohd. Waqar Ahmed.
10. Even Ex.PW1/R3 Tax Assessment Forms filed with M.C.D have been placed on record which show that Smt. Sahim Bi has been shown as owner/tax payer and such form is dated 01.04.1972. Moreover, respondent no.1 Sh. Om Prakash has been shown as tenant in premises which is tenanted premises ARC No.77128/16 Adesh Kumar Gupta Vs Om Prakash 5 in the present petition. Even the name of other tenants have been shown in different portion of property.
11. I have also gone through the other documents placed on record by the petitioners such as PW1/4 copy of plaint in suit for permanent injunction, Ex.PW1/5 written statement filed by respondent no.1 herein in aforementioned suit, Ex.PW1/7 slum application disposed of by Ld. Authority concerned.
12. Perusal of such record shows that respondents herein raised pleas in the aforemntioned proceedings that respondent no.1 herein became owner of the tenanted premises by way of adverse possession. But in the present petition, no such pleas were raised by the respondents as the written statement was not filed by the respondents.
13. As far as cross examination of petitioner no.1 is concerned, Nothing concrete has come in the cross examination which disprove the case of petitioners in respect of their land-lordship. Perusal of record and exhaustive discussion as earlier, manifestly shows that there exists the relationship of landlord-tenant between the parties.
14. As such, it is proved on record that Respondent No.1 is a tenant in the tenanted premises. Furthermore, it is undisputed fact that Respondent No.2 is in possession of the tenanted premises. It is not the case of Respondents that legal ARC No.77128/16 Adesh Kumar Gupta Vs Om Prakash 6 possession of the tenanted premises is still with the Respondent No. 1. Perusal of record manifestly shows that Respondent No.2 is in exclusive physical possession of the tenanted premises and legal possession is also with Respondent No.2. Even in the suit before the Ld. Civil Court concerned and before the Slum Authority concerned, the respondents have admitted the exclusive physical possession and legal possession of the Respondent No.2 qua tenanted premises.
15. As such, in view of discussion earlier, it can be held that the Respondent No.1 has parted with the possession of tenanted premises in favour of Respondent No.2. Although, the respondent no. 2 have placed on record electricity Bills but it can not be relied upon as the defence of the Respondent No.2 is already struck off. Moreover, these are of the year 2009 and 2013. Even propery tax Receipt Mark Z is of the year 2013- 2014. As such, these documents can not be relied upon. Moreover, these do not prove the ownership but merely the possession of the Respondent No.2.
16. Perusal of record shows that written statement has not been filed and it is not the case of the respondents that the consent in writing of the landlord was taken by the Respondent No.1 before parting with the possession. Perusal of record shows that both the Ld. Counsels have relied upon certain case laws in support of their case. In my considered view and the ARC No.77128/16 Adesh Kumar Gupta Vs Om Prakash 7 exhaustive reasons as mentioned earlier and well settled proposition of law, the case law filed by the respondent on 14(1)
(b) does not assist the respondent. As such all the ingredients of section-14(1)(b) of DRC Act are satisfied.
17. SEC. 14(1) (j) of D.R.C. ACT:-
Section 14(1)(j) is reproduced as under:-
"Section-14. Protection of tenant against eviction (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by court or any controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, make an order for recovery of possession of the premises on one or more of the following grounds only, namely:-
(j) that the tenant has, whether before or after the commencement of this Act, caused or permitted to be caused substantial damage to the premises."
18. It is well settled law that all the alterations and additions in the premises are not substantial damage and the duty is always on the landlord to prove that such alterations and additions have caused substantial damage to his premises. It is well settled that every damage is not substantial damage.
ARC No.77128/16 Adesh Kumar Gupta Vs Om Prakash 8 It is also well settled that 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 utilisation aspect of the building. It is also clear that every change, addition or alteration in the tenanted premises will not invite eviction of the tenant under Clause (j) and each case depends upon its own facts.
In my considered view, the petitioner have not been able to fulfil the requirements as formulated by the Hon'ble High Court of Delhi in case titled as Suraj Parkash Chopra Raj kumar vs Baij Nath Dhawan and Anr. 2003 III AD Delhi 705, 103 (2003) DLT 645.
19. It is well settled as discussed earlier that every damage to premises does not entitle the landlord to obtain the eviction order. There should be substantial damage to the premises. There should be material alteration in the premises. The onus to prove that the tenant has caused substantial damage to the property is on the landlord.
In the case titled as Shakuntla Devi Vs Avtar Singh 113 (2004) DLT 424, the Hon'ble Delhi High Court observed that:-
"6. Having analysed the reasonings of the courts below, I am of the view that the very fact that the tenant-respondent has punctured the weight- bearing walls of the premises in question and ARC No.77128/16 Adesh Kumar Gupta Vs Om Prakash 9 created additional space for himself by way of parchhati equivalent to the floor area, admits of increase of weight on the load-bearing walls and certainly can be said to have caused substantial damage to the premises in question. The tenant can not damage the walls, erect additional space and yet claim that no substantial damage has been caused to the premises in question. Structural change which brings about additional load on the existing load bearing walls, is substantial damage to the premises in question. It is not necessary that the walls must crumble under additional weight to bring the mischief of the tenant under Section 14(1)
(j) of the Act. Suffice to say in the facts and circumstances of the present case where the tenant has punctured holes into the walls created additional space by erecting a parchhati equivalent to the floor area of the room in question and is using the same for either storage of goods and/or residence purposes, would come within the mischief of Section 14(1)(j) of the Act. The tenant is not permitted to make any changes/alterations so as to increase load on the walls which are otherwise designed to hold the structure as was let out to the tenant".
In the case titled as Suraj Parkash Sawhney Vs Bhagat Ram passed in S.A.O.No.328-D of 1964, the Hon'ble Punjab and Haryana High Court observed that:-
"Sub-Section (10)has been introduced as a corollary to clause (j) of the proviso to sub- section(1), and it is provided that in cases where the tenant caused a substantial damage to the demised premises the Controller may direct the tenant to carry out repairs to the damage caused to his (the Controller's) satisfaction or to pay such amount by way of compensation as the Controller may direct. The sub-section has been enacted to grant relief to the tenant causing substantial damage to the demised premises in case he is prepared to undo the damage caused by him. Sub-section (10), however, does not make it imperative for the Controller to give a choice to the tenant either to repair the damage or to pay the compensation. It would in my view, depend upon the ARC No.77128/16 Adesh Kumar Gupta Vs Om Prakash 10 circumstances of each case for the Controller to decide as to whether he should make an order calling upon the tenant to repair the damages or to pay an amount by way of compensation and to mould his directions accordingly. The Controller is vested with a discretion in the matter which must be exercised judicially looking to the facts of each case, and is for the Controller to decide as to what type of order contemplated by sub- section (10) should be made by him. In a case like the present if the order were not for the construction of the intervening wall but only for payment of a paltry com pensation of Rs.200/- which would, according to Mr. Hardy, be the cost of constructing the wall, there would always be a danger of the entire building falls down be cause of the demolition of the wall which was support ing roof. The payment of compensation in a case like the present wall hardly be the proper relief and as such the Additional Controller and Tribunal were in my opin ion fully justified in direct the tenant construct the inter vening wall in case he wanted to avoid his eviction in Appeal No.328-D of 1964 is consequently dismissed."
In the case titled as Suraj Parkash Chopra Raj kumar vs Baij Nath Dhawan and Anr. 2003 III AD Delhi 705, 103 (2003) DLT 645, the Hon'ble High Court of Delhi observed as under :-
"(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 his 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;
ARC No.77128/16 Adesh Kumar Gupta Vs Om Prakash 11
(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 utilisation 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; and
(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."
20. I have carefully gone through the pleadings of the parties keeping in view the guidelines and observations made by the Hon'ble Supreme Court and Hon'ble High Court.
CONCLUSION :-
21. Perusal of petition shows that the petitioners have claimed that Respondent No.2 has made substantial structural changes in the tenanted premises. Perusal of material on record clearly shows that petitioners have not been able to prove the parameters of 14(1)(j) of D.R.C. Act and also as formulated by the Hon'ble Superior Courts. Hence, the petition 14(1)(j) is dismissed.
ARC No.77128/16 Adesh Kumar Gupta Vs Om Prakash 12 CONCLUSION:-
22. In view of discussion as earlier, the petitioners have been able to satisfy all the ingredients of section-14(1)(b) of DRC Act. In consequence thereof, Petition is allowed u/section 14(1)(b) of DRC Act and an eviction order is passed in respect of the property bearing MPL No. 3328 consisting of one room, Verandah, latrine and open courtyard on ground floor of part of the abovementioned property bearing no. (New 3328-31), (old) 4482-85, consistng of Ground Floor and 1 st Floor along with terrace roof rights upto sky) constructed on piece of land measuring 155.51 sq. mtrs. approx. situated at Aryapura, Subzi Mandi (Ward No. XII), Delhi- 110007 as shown in red color in the site plan Ex.PW1/2 in annexed petition.
23. In view of discussion earlier, the petitioner have failed to satisfy the ingredients of section -14(1)(j) of DRC Act. Hence, the petition u/section 14(1)(j) of DRC Act is dismissed.
24. File be consigned to Record Room after due compliance.
Digitally
Announced in the open Court signed by
On 22nd March, 2021. AJAY AJAY NAGAR
Date:
(This judgment contains 13 pages) NAGAR 2021.03.22
16:21:39
+0530
(Ajay Nagar)
Additional Rent Controller-2,
Central District, THC, Delhi.
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