Delhi District Court
Prem Nath Gera vs Sh. Manohar Lal Sole Proprietor on 13 April, 2009
11
IN THE COURT OF MS. NAVITA KUMARI: ADDL. RENT CONTROLLER: WEST DELHI
E-380/08/97
Prem Nath Gera,
S/o Sh. Tehl Ram,
R/o 25C/40, Punjabi Bagh,
New Delhi.
..............Petitioner
Vs.
Sh. Manohar Lal sole proprietor
Metro Light and Tent House,
6, West Avenue Road,
Punjabi Bagh,
New Delhi.
............Respondent
EVICTION PETITION U/SEC.14(1)(a)(c)(d)(j) & (k) OF DELHI RENT CONTROL ACT, 1958
JUDGMENT:-
1 Present eviction petition was filed U/Sec.14(1)(a)(c)(d)(j) & (k) of Delhi Rent Control Act, 1958 by the petitioner Sh. Prem Nath Gera on 10.12.1997. The brief facts of the case as narrated in the petition are that the petitioner is the landlord of the premises bearing Road no. 49, Punjabi Bagh, New Delhi and the respondent was inducted as tenant in the year 1970/71 with respect to one drawing room-cum-dinning room which has been partitioned by a 7 feet high wall with Tarakota of two feet width at the top of the wall along with one kitchen in the above said property. The kitchen was subsequently surrendered by the respondent, after the marriage of Narinder Kumar 22 Gera, at the request of his father Inderjeet Rai Gera who was collecting rent and acting as the landlord who has since died. The premises are residential and were let out to the respondent for residential purpose. The monthly rent is Rs.800/- per month and the respondent is in arrears of rent w.e.f 01.04.1997 and a legal demand notice was served upon him but despite that neither he paid the rent and the arrears nor tendered the same. The respondent has changed the user of the premises as he is using it as store for his business goods without the written or oral consent of the landlord. By the change of the user he has violated the Master Plan and the Zonal Plan and is liable to evict U/Sec.14(1)(k) of the Act. The respondent has caused substantial damage approximately of Rs.20,000/- by damaging the floors, electrical installations and windowpanes and is liable to pay for the same or in the alternative to eviction.
2. In Written Statement the respondent has submitted that by compromise dated 18.10.1996 the rent is being received by the petitioner. However the respondent has denied that the premises were let out for residential purpose. He has submitted that the premises were taken for godown purpose and from the date of inception of the tenancy the same had been used for the same purpose only. The rate of rent of Rs.800/- per month has been admitted by the respondent in his WS. But he has denied that he is in arrears of rent w.e.f 01.04.1997. He has denied the service of any legal demand notice and has submitted that in the previous litigation, a compromise was effected on 18.10.1996 and rent was duly paid and cleared up to 31.10.1996 and respondent has been regularly giving cheques to the petitioner at the enhanced rent of Rs.800/- per month w.e.f 01.11.1996. He has further submitted that sometimes the petitioner used to issue receipts and sometimes he used to just put off by saying that since the cheques were payee's account, so it would not make any difference even if the rent receipts are not issued. He has submitted that the last rent receipt issued by the petitioner is dated 25.06.1997 showing the rent for the period 01.06.1997 to 30.06.1997. He has further submitted that after 33 June, 1997 the petitioner has received the following cheques:-
(i) Cheque no. 590831 for July 1997 Rs.800/-
(ii) Cheque no. 590839 for August & September 1997 Rs.1600/-
(iii) Cheque no. 590845 for October 1997 Rs.800/-
(iv) Cheque no. 992608 for November 1997 Rs.800/-
(v) Cheque no. 992618 for December 1997 Rs.800/-
(vi) Cheque no. 992629 for January 1998 Rs.800/-
He has further submitted that since the petitioner was not issuing the receipts and was also not getting the cheques encashed, the respondent wrote a letter dated 23.10.1998 for requesting the petitioner to get the cheques duly encashed and to send proper rent receipts. He has further submitted that neither the petitioner complied with the request of the respondent nor returned the cheques kept with him. He has further submitted that there has not been any misuser of the premises because premises were taken on rent for storage purpose only. He has further submitted that the land on which the premises is situate is free-hold land and therefore, Sec.14(1)(k) of DRC Act does not apply. He has further submitted that no damages have ever been caused to the premises in question or to the alleged electrical installation or to the windowpanes and the allegations in this regard are totally false, vexatious and malafide.
3. In the replication to the WS, the petitioner denied almost all the averments of the respondent and reiterated the contents of his petition.
4. After completion of the pleadings the Predecessor Court vide orders dated 24.07.02 directed the respondent U/Sec.15(1) of DRC Act to pay or deposit the arrears of rent at the rate of Rs.800/- per month w.e.f. 01.07.1997 till the end of the month immediately 44 proceeding the date on which the deposit was made, within one month and to continue to pay or deposit the rent at the same rate by 15th of each succeeding month.
5. During the pendency of the petition the petitioner Prem Nath Gera expired on 03.04.99 and his L.R.s i.e. his son Anil Gera and his widow Ms. Raj Gera were brought on record vide orders dated 22.02.00. The respondent also expired during the pendency of the petition and his L.R.s were also brought on record vide orders dated 18.03.08 by allowing the application U/O.22 R.4 CPC.
6. In petitioner's evidence PW1 Anil Gera was examined as one and the only witness while in RE, respondent examined himself as RW1 and Sh. Shiv Kumar as RW2.
7. I have heard the arguments from both the sides at length and perused the record.
During the final arguments, the counsel for petitioner, who is also L.R. No.1 of the petitioner submitted that he is not pressing for the petition U/Sec.14(1)(d) and U/Sec.14(1)(k) of DRC Act and therefore, the present petition is dismissed U/Sec.14(1)(d)&(k) of DRC Act as not pressed for. And my findings in the present case U/Sec.14(a),(c) & (j) of DRC Act are as follows:
Sec.14(1)(a) of DRC Act
8. To prove the case U/Sec.14(1)(a) of DRC Act, the petitioner is required to prove the following ingredients:-
(i) that there is relationship of landlord and tenant between the parties;
(ii) rate of rent;
(iii)that there are arrears of legally recoverable rent;
(iv) that a valid legal demand notice was duly served upon the respondent; and 55
(v) that the respondent has neither paid nor tendered the entire arrears of legally recoverable rent within two months of date of receiving of legal demand notice.
9. Now let us examine if the petitioner has been able to prove the above said five ingredients of Sec. 14(1)(a) of DRC Act.
That there is relationship of landlord and tenant between the parties
10. The relationship of landlord and tenant between the parties is not disputed and hence the same stands proved.
Rate of rent
11. The monthly rent of Rs.800/- is also admitted.
That there are arrears of legally recoverable rent
12. It has been mentioned in the petition as well as Replication that the respondent is in arrears of rent w.e.f. 01.04.1997 till the date of filing of petition. But in the legal notice Ex.PW1/6 as well as affidavit in evidence, it has been stated that the respondent is in arrears of rent w.e.f. 01.07.1997. The counsel for petitioner, who is also one of the L.R.s of petitioner, has submitted that due to typographical error the date has been mentioned as 01.04.1997 in the petition and Replication. But the counsel for the respondent has argued that since it has not been pleaded by the petitioner in the pleadings that rent is due w.e.f. 01.07.1997, so he cannot be permitted to prove it by leading evidence as anything which is not averred, cannot be proved. But here I differ 66 from the view point of the counsel for respondent because it could not be said that the petitioner has not pleaded that the rent is due from July, 1997. Even if it is presumed for the sake of arguments that the default, as pleaded in the petition, is w.e.f. 01.04.1997, then the period of July, 1997 onwards is very much covered under the same. The petitioner has not led evidence on any new fact which is not pleaded. By mentioning default date as 01.07.1997 in his evidence, he has not led evidence on the point which is altogether new and beyond the pleadings. The counsel for petitioner has submitted that the pleadings are only hand tools for delivering justice and the administration of justice should not be let hampered on account of defective/deficient pleadings. To fortify this view point, he has relied upon the following judgments:-
(i) Keshav Metal Works Vs. Jitender Kumar Verma, 1994(1) AD (Delhi) 81.
(ii) Kailash Chandra Vs. Vinod & Anr., AIR 1994 NOC 267 (MP)
(iii) Narinder Nath Vs. Lt. Col. Jaswant Singh, AIR 1994 P & H 111
(iv) Ram Swarup Gupta Vs. Bishun Narain Inter College, AIR 1987 SC 1242 It has been held in these cases that it is well known that pleadings in our country are not to be construed so strictly or mechanically. The purpose of pleadings is to ensure that the other side is not caught un-awared. It is held in Ram Swarup Gupta Vs. Bishan Narain Inter College , AIR 1987 SC 1242, "The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings 77 however, should receive a liberal construction.
No pedantic approach should be adopted to defeat justice on hair splitting technicalities.
Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis, on form, instead the substance of the pleadings should be considered. Whenever, the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings."
13. In the present case, it is not the case of the respondent that he was being misled in any manner by wrong mentioning of the date of default. Therefore, in view of the above said case laws, instead of hypertechnical and pedantic approach, liberal construction 88 should be given to the pleadings of the parties. The counsel for respondent, on the other hand, has argued that decree cannot be passed in favour of petitioner because the petition does not disclose any cause of action due to the repetitive mentioning of date of default as 01.04.1997 whereas it is admitted fact that rent upto June, 97 had been paid to the petitioner. To fortify his view point he has relied upon Hari Mohan Mehra Vs. Rameshwar Dayal, AIR 1980 Delhi 291. In this case the Hon. High Court has held, "(A) Delhi Rent Control Act (59 of 1958), Sec.14(1) Proviso sub-cl.(a) - Notice of demand for arrears of rent - Requirements of.
A demand must come from the proper quarter, that means that it must come from the landlord or his counsel. The second requirement is that a demand must be a demand for a definite sum alleged to be due on account of arrears of rent from the tenant to the landlord. The period for which the rent has fallen due must be stated. It is true that no particular form of demand is prescribed. But it is obvious that if an omnibus demand is made for a lump sum without particularizing the amount due to the landlord and the amount received from the tenant, it cannot be said to be a proper demand. There can be no ejectment unless there is a legal 99 liability to pay and a legal liability to pay is to start with demand. A demand which fails in either of these two matters is not a demand which creates a legal liability to pay. The landlord must serve a proper notice of demand."
But I am of the view point that instead of helping the respondent, this authority is going to support the case of the petitioner. In the present case, it is not at all in dispute that the Legal Notice Ex.PW1/6 was not issued by the petitioner or that no specific demand was raised in the legal notice or that the specific period for which rent was due, was not mentioned in the notice. The notice in this case has already fulfilled the requirements mentioned in the above said case-law. If at all there is any discrepancy/deficiency, that is in the petition/Replication regarding the date of default and not at all in the legal notice and hence the above said case-law is of no use for the respondent in this case.
14. Thus, in view of the above said discussion, it is held that due to typographical or other mistake regarding date i.e. 01.04.1997, neither the respondent was being misled or being taken by surprise nor the date i.e. 01.07.1997 in the affidavit and legal notice is any new fact which is not pleaded in the petition as the same is already covered under the period mentioned in the petition. So by adopting the cardinal principle of liberal construction of the pleadings, the contention of the respondent that petition is without any cause of action, is rejected.
15. Now coming to the point of arrears of legally recoverable rent, it is deposed by PW-1 Sh. Anil Gera that the respondent had paid rent up to 30.06.1997 and failed to make payment of rent thereafter. In WS, the respondent has stated that after June, 1997, the 1010 petitioner has received the following cheques:-
(i) Cheque no. 590831 for July, 1997 - Rs.800/-
(ii) Cheque no. 590839 for August & September, 1997 - Rs.1,600/-
(iii) Cheque no. 590845 for October, 1997 - Rs.800/-
(iv) Cheque no. 992608 for November, 1997 - Rs.800/-
(v) Cheque no. 992618 for December, 1997 - Rs.800/-
(vi) Cheque no. 992629 for January, 1998 - Rs.800/-
He has further stated that since the petitioner was not getting the same encashed, the respondent wrote a letter dated 23.01.1998 and requested the petitioner to get the cheques encashed. But the petitioner, in his Replication, denied all the above said cheques except the two cheques mentioned at serial no. (v) & (vi) and further submitted that even out of these two cheques, one was unsigned and on the other, the name of petitioner is wrongly mentioned. In evidence, the PW1 has reiterated the same and has exhibited these two cheques as Ex. PW1/11 and Ex.PW1/12. But these cheques are not relevant for the present case as these pertain to the subsequent period of filing of petition.
16. It is settled law that when the petitioner alleges non-payment of rent U/Sec.14(1)(a) of DRC Act, the onus lies on the respondent/tenant to prove that he has paid the rent. It has been held is Sukhanand Vs. IVth Addl. Distrcit Judge, Bulendshahar & Ors., 1994(2) AIRCJ 27 that the onus to show payment of rent lies on a tenant and the oral testimony of the tenant in regard to the payment of rent claiming discharge of the liability in this regard cannot be deemed to be worth reliance at all. In the present case, the respondent's stand is that he had given cheques to the petitioner for the period starting from July, 1997 to January, 1998. But he has not filed any documentary proof to substantiate his averment. Though he has admitted in his 1111 cross-examination that he has proof viz. counterfoils of the cheque book, but no reason given for not bringing the same on record. Thus the respondent has failed to discharge the onus to show the payment of rent as alleged by him. Moreover he has admitted in his cross- examination that he had replied the legal notice of petitioner Ex.PW1/6 vide his communication dated 23.01.98 which is Ex.PW1/10. In the legal notice Ex.PW1/6, the petitioner has specifically stated that the respondent has not paid rent w.e.f. July, 1997. But despite that the respondent has not mentioned even an iota regarding rent for the month of July, 1997 in his letter Ex.PW1/10. He has specifically mentioned in this letter that he had handed over to petitioner the three cheques towards rent for August & September, October and November, 1997. But he is totally silent about any payment of rent for the month of July, 1997. Since this letter was sent as reply to legal notice, so from its silence on the point of rent for July, 1997, it stands proved that the rent for the month of July, 1997 had remained unpaid. Thus on the basis of above said analysis, it stands proved that the respondent was in arrears of rent at the time of issuance of legal notice Ex. PW1/6.
That a valid legal demand notice was duly served upon the respondent
17. It has been argued by the counsel for respondent that the monthly tenancy was not corresponding with the English calender month. He has further argued that the petitioner has failed to prove that the rent was payable in advance before the 7th of English calender month. He has argued that though in the Replication, the petitioner has said that there was Rent Agreement but no such Rent Agreement has been brought on record and thus it has not been proved that rent was to be paid in advance and hence the legal demand notice is pre-matured. But I do not agree with his view point. The PW1 has categorically stated in his affidavit in evidence that no agreement in writing was executed at the time of letting out the premises. Though in para 14 & 19 of the Replication, it has been stated that there is rent agreement between the parties, 1212 but it has not been stated that there was any written agreement. As per Sec.26 of DRC Act, the rent is required to be paid on monthly basis. It is also the own admission of the respondent in his cross-examination that he was making payment of the rent on monthly basis. Thus it stands proved that the rent was to be paid on monthly basis though not in advance. The PW1 has deposed that respondent is in arrears of rent w.e.f. 01.07.1997. The legal demand notice is dated 13.09.07 and thus it cannot be said that the notice is pre-matured.
18. PW1 has deposed that the respondent has failed to pay or tender the rent to petitioner Sh. Prem Nath Gera from the month of July, 1997 onwards and a legal notice dated 13.09.1997 i.e. Ex.PW1/6 was issued by petitioner through his advocate Mr. M. L. Khanna and the same was sent vide postal receipt Ex.PW1/7 and UPC receipt Ex.PW1/8. He has further deposed that the said legal notice was served upon the respondent and AD card to this effect is Ex.PW1/9. Though the respondent has denied the receipt of legal notice in his WS but he has categorically admitted the receipt of said notice Ex.PW1/6 in his cross-examination. So the service of legal demand notice stands proved That despite the service of the legal demand notice, the respondent has neither paid nor tendered the entire arrears of legally recoverable rent
19. PW1 has deposed that despite the receipt of legal demand notice Ex.PW1/6, the respondent has failed to pay or tender the whole of the arrears of rent within two months. As stated earlier, the respondent has admitted in his cross-examination that he had replied to petitioner's legal notice vide his letter dated 23.01.1998 which is Ex.PW1/10, and this letter is silent about the rent for the month of July, 1997. It has 1313 been stated by the respondent in this letter that he had handed over the following three cheques personally to the petitioner:
(a) cheque dated 17.09.97 for Rs.1600/- towards rent for August and September, 1997.
(b) cheque dated ______ for Rs.800/- towards rent for October, 1997.
(c) cheque dated 10.11.1997 for Rs..800/- towards rent for November, 1997.
20. The respondent had sent two more cheques along with the abovesaid letter towards rent from December, 1997 and January, 1998. Thus it is clear from this letter that the respondent has not paid rent for the month of July, 1997. No other evidence has been produced by the respondent to show the payment of rent for the month of July, 1997. Thus it stands proved that the respondent has not paid the rent for the month of July, 1997 and thus accordingly it stands proved that he has neither paid nor tendered the "entire" arrears of legally recoverable rent within two months of receipt of legal notice.
21. From the above said discussion, it is clear that the petitioner has been able to prove all the ingredients of Sec.14(1)(a) of DRC Act.
Sec.14(1)(c) of DRC Act
22. It has been alleged in the petition that the tenanted premises were let out to the respondent for residence and at the time of letting out, the tenanted premises included one kitchen also which was surrendered by the respondent at the request of father of Sh. Inderjit Rai Gera who used to collect rent and that the respondent has changed the user of the premises as he is using it as store for his business goods without the written or oral consent of the landlord. But the same has been vehemently denied by respondent in his WS. He has denied the letting out of any kitchen to him. He has 1414 stated that the same was a small room and not a kitchen, which was surrendered by the respondent at the request of landlord. He has submitted that the premises were taken for godown purposes and are being used for the said purpose since the inception of the tenancy. In replication the petitioner has denied the averments of the respondent and has submitted that the premises were let out for residential purposes and the respondent had stayed there with family for a few months and thereafter started misusing it as store.
23. For proving the case U/Sec.14(1)(c) of DRC Act, the petitioner is required to prove the following ingredients:-
(i) Purpose of letting;
(ii) That the respondent has used the premises for another purpose;
(iii) That the tenant has not obtained the consent of the landlord. Purpose of letting
24. For proving the case U/Sec.14(1)(c) of DRC Act, first of all the petitioner was required to prove that the premises were let out for residential purposes only. It has been argued by counsel for respondent that in replication, petitioner has mentioned about the Rent Agreement which could have been the best piece of evidence to prove the purpose of letting, but the petitioner has not produced the same and therefore an adverse inference should be drawn against him. But I do not concur with his view point as the petitioner has not stated in his replication that any "written" Rent Agreement was executed between the parties. The PW1 has deposed and stated categorically in his affidavit in evidence that the premises were let out to respondent on 25.09.1977 for residential purposes but no agreement in writing was executed at that time. The 1515 counsel for petitioner has argued that the purpose of letting being residential, is evident from the fact that the respondent had resided along with his family in the suit premises for a few months immediately after taking the same on rent but later on shifted his residence and converted the same into a godown. But the respondent/RW1 has deposed in his affidavit in evidence that he along with his family was already residing in his own house no. 120, IV Storey, Raghubir Nagar, Delhi, in the year 1977 when the premises were let out to him. In his cross-examination he has produced a receipt of Rs.10,000/- in the name of his wife i.e. Ex.RW1/PA, according to which the wife of respondent had paid Rs.10,000/- as full and final settlement in respect of premises bearing no. 120 (Top Floor), DDA, Najafgarh Road, New Delhi. The counsel for petitioner has argued that this document could not be considered as proved because the respondent/RW1 has categorically admitted that it does not bear his signatures. Though the counsel for petitioner has force in his contention, but even if the document is considered to be proved only for the sake of arguments, yet the same is of no help for respondent because it was executed on 06.11.1981 and thus from no point of angle, it can prove that in 1977, the respondent was residing at 120, DDA, Najafgarh Road, New Delhi. The respondent has admitted in his cross-examination that apart from this document i.e. receipt, he does not have any other proof that he was residing at the said address. The respondent/RW1 has also categorically admitted in his cross-examination that he has no document to show that the premises were taken on rent for commercial purposes. Thus there is no direct evidence from either side to prove the purpose of letting and therefore the counsel for petitioner has argued that in these circumstances the purpose of letting can be inferred from the nature of construction, the locality wherein the tenanted premises situates and other surrounding circumstances. To fortify his view point, he has placed reliance upon the following judgments:- 1616
(i) 1974 Rajdhani Law Reporter 63 (ii) 1986 (1) AIRCJ 126 (iii) 38 (1989) DLT 233 (iv) 59 (1995) DLT 707
In Agan Lal Vs. Kapuri Devi, 1974 Raj Law Reporter 63, the Hon'ble Court has held, "Proof of purpose of letting. If there is no direct proof of purpose (residential) of letting, then the same may be judged from the consistent use, nature of construction, locality or area and other surrounding circumstances."
In Trilok Chand Tuteja Vs. Jamna Dass Chugh, 1986 (1) AIRCJ 126 the Hon'ble High Court of Delhi has held that when there is no written note or lease regarding the purpose of letting, then the same can be inferred from the nature of building, design, location and the dominant use of the same.
In Anil Kumar Jawhar & Anr. Vs. Atlas Cycle Industries, 28, (1989) DLT 233, it has been held, "It is well settled that in the absence of any written agreement, the nature of the building, the locality and the dominant use to which the building can be put are the relevant guidelines for deciding the question as to the purpose for 1717 which the building was let out."
In Jagmohan Singh Wadhera Vs. K. M. Bhatnagar, 59 (1995) DLT 707, the Hon'ble High Court of Delhi has held that where there is no covenant as to user of the premises and the question is also to what use was contemplated, the Court will infer the use contemplated from description of the premises and surrounding circumstances at the time of letting.
25. In the present case, the respondent has categorically admitted that Punjabi Bagh is a residential area. The tenanted premises are also situated at Punjabi Bagh and thus it is evident that the locality is residential. So far as the nature of construction and design of the premises is concerned, the PW1 has deposed that one drawing-cum-dining room, which was partitioned by a wall along with a kitchen as shown in site plan Ex.PW1/1, was let out to the respondent in 1977. Though the respondent as denied the letting out of kitchen but submitted that one small room was also let out initially which was later on surrendered at the request of the landlord. But the respondent/RW1, in his cross-examination, has admitted the site plan Ex.PW1/1 to be correct. As per this site plan there is one kitchen adjacent to the living and dining room apart from the bed rooms, WC, veranda, etc. Thus, the design of the building indicates the premises to be residential. So far as the dominant use of the building of which the tenanted premises is a part, is concerned, the counsel for respondent has argued that the PW1 has admitted in his cross-examination that another portion of the building is being used for commercial activity. But it seems that he has failed to pay attention to the next line where the PW1 has stated that the eviction petition has already been filed against that tenant also who is using the premises for commercial use. The RW1, on the other hand, has admitted in his cross-examination that the brother of the petitioner was residing adjacent to the tenanted premises in the same 1818 building and that one Mr. G. N. Dutt was also residing in the rear portion of the said building. The RW2 has also admitted in his cross-examination that certain persons are residing in the property where the tenanted premises are situated. Thus, even from the predominant use and surrounding circumstances, the premises appears to be residential. But counsel for respondent has argued that in para 10 of the petition, there is no mention of any 'water facility' or 'sanitation' and thus no inference of residential purpose could not drawn as there can be no residential accommodation without any water and sanitation facility. However, the counsel for petitioner has argued that there was no mention of water and sanitation in para 10 of petition as the kitchen, wherein there was water facility, had already been surrendered and the user of bathroom and W.C, which was common, too had come to an end when the respondent shifted his residence and started misusing the tenanted premises as a godown. He has further argued that in the pleadings, the respondent has not raised the said aspect of water and sanitation but now for the first time during the final arguments, the said aspect has been stressed by the counsel for respondent and had the same being raised in the WS, the same would have been responded accordingly. He has also argued that due to the absence in pleadings the respondent is incapacitated to raise the said aspect in evidence and now. And I agree to his contention as the same has not been pleaded in WS and in the absence of pleading, no evidence can be led/looked into. Even no suggestion regarding non availability of bathroom/toilet was put to PW1. The only suggestion was regarding having water and electricity supply to the tenanted premises "at present". The next contention of respondent's counsel is that there can be no residential premises without a kitchen also. But the counsel for petitioner has argued that the premises were held to be let out for residential purposes even without lavatory, bathroom or kitchen by Hon. High Court of Delhi in Jiwan Lal Seth Vs. P. N. Nagpal, (15) 1979 DLT 330 and in Dr. B. K. Dawesar Vs. K. K. Sapra, 121 (2005) DLT 147. Even otherwise, the respondent, in his cross-examination, has admitted the site plan Ex.PW1/1 to be correct and there is kitchen in this site plan to which the respondent has alleged to be a 1919 small room in his WS. Above all the respondent has admitted in his cross-examination the service of Legal Notice Ex.PW1/6. It has been categorically averred in this notice that originally one drawing-cum-dining hall with kitchen was let out to respondent for residential purpose who resided there and later on shifted the residence and perverted the user to store for storing the trade goods despite the protest and opposition of landlord. The responded/RW1 has again admitted in his cross-examination that he had replied the said legal notice vide his communication dated 23.01.1998 which is Ex.PW1/10, bearing his signatures at point A. But in this entire letter i.e. Ex.PW1/10, there is no even a whisper about denial of purpose of letting or change of user. It has been held in Kallu Ram Vs. Sita Ram, 1980 Rajdhani Law Reporter (note) 44, "Sec.114(f) of Evidence Act - If plaintiff before filing suit makes serious assertions in a notice to defendant, then defendant must not remain silent by ignoring to reply. If he does so then adverse inference may be raised against him."
And the same has been held in Metropolis Travels and Resorts (I) Pvt. Ltd Vs. Sumit Kalra & Anr., 98 (2002) DLT 573 (DB).
Similarly in the present case also adverse inference is drawn against the respondent as in his reply to legal notice, he has remained silent and not refuted the averments of notice regarding purpose of letting being residential and his change of user.
26. Thus, in view of the above said discussion, the purpose of letting, on the basis of nature 2020 of construction, design, locality, predominant use and surrounding circumstances, is held to residential.
That the tenant has used the premises for other purpose
27. Admittedly the respondent has been using the tenanted premises for storing his business goods. As the purpose of letting has already been held residential, so it stands proved that the respondent has used the premises for a purpose other than for which they were let out.
That the tenant has not obtained the consent of the landlord
28. Admittedly the premises were let out in 1977 and therefore as per sub-clause (i) of Sec.14(1)(c) of DRC Act, the tenant was required to obtain the consent in writing of the landlord for change of user. The PW1 has deposed in affidavit in evidence that the suit premises had been let out for residential purposes but the respondent converted the same into godown and used the same for the purpose of storing of tent material, etc., without the written consent of the landlord. Neither the PW1 has been cross-examined on the point of written consent nor it is the case of the respondent that he ever obtained written consent of the petitioner for change of user and thus it stands proved that the respondent has not obtained the consent in writing of the landlord as required under sub-clause (i) of Sec.14(1)(c) of DRC Act.
29. Thus, the petitioner has proved all the ingredients of Sec.14(1)(c) of DRC Act. The counsel for respondent has argued that it is petitioner's own case that respondent resided in the suit property only for a few months immediately after letting it out in 1977, which means that the 2121 ground U/Sec.14(1)(c) was available with petitioner even at the time of earlier eviction petitions filed in 1991 and 1992, which was later on compromised, but the petitioner omitted to sue on this ground and therefore this ground is not available U/O 2 R. 2 CPC. But I do not agree to his view point as what is barred U/O 2 R. 2 CPC is the relinquished part of the claim of the same cause of action. Admittedly, the earlier eviction petitions were not filed U/Sec.14(1)(c) of DRC Act. The ground U/Sec.14(1)(c) is based on separate cause of action and provision of Order 2 R. 2 CPC is not attracted in the present case. The Hon'ble Supreme Court has also held in Kewal Singh Vs. Smt. Lajwanti, 1980(1) AIRCJ 167, "A perusal of O.2 R.2 would clearly reveal that this provision applies to cases where a plaintiff omits to sue a portion of the cause of action on which the suit is based either by relinquishing the cause of action or by omitting a part of it. The provision has, therefore, no application to cases where the plaintiff basis his suit on separate and distinct, causes of action and chooses to relinquish one or the other of them. In such cases, it is always open to the plaintiff to file a fresh suit on the basis of a distinct cause of action which he may have relinquished.
Sec.14(1)(e), 14(1)(f) and 14A are based on three distinct causes of action and if any of these is given up, O.2 R.2 CPC, is inapplicable."
2222Hence it is held that the petition U/Sec.14(1)(c) of DRC Act is not barred by O.2 R.2 of CPC.
30. As per section 14(5) of DRC Act, no application for recovery of possession of any premises can lie U/Sec.14(1)(c) of DRC Act unless the landlord has given to the tenant a notice requiring him to stop the misuse of the premises. The service of said legal notice Ex.PW1/6 has been duly admitted by the respondent in his cross-examination. Neither the respondent has refuted the change of user in his reply Ex.PW1/10 nor stopped the misuser within one month of date of service of notice. The respondent/RW1 has stated in his affidavit that the premises have been used even today for storing materials of tent house. This Court is of considered view that placing and removing tent house materials in a residential colony and residential premises where the family is residing, amounts to nuisance and is otherwise also detrimental to the interest of the landlord and therefore eviction order is passed U/Sec.14(1)(c) in favour of petitioner and against the respondent in respect to one drawing room-cum-dinning room which has been partitioned by a 7 feet high wall with Tarakota of two feet width at the top of the wall along with one kitchen of the premises bearing Road no. 49, Punjabi Bagh, New Delhi as shown in site plan Ex.PW1/1.
Section 14(1) (j) of DRC Act
31. It has been alleged in para 18(a) of the petition that the respondent has caused substantial damage approximately of Rs.20,000/- by damaging the floors, electrical installations and window pane. But the same has been denied by the respondent in his WS. In evidence the PW1 has deposed that due to the storage of tent house materials the floor of the tenanted premises has developed pits and electrical installations have also been badly damaged apart from the breakage of window panes and doors. The 2323 damage has been assessed to be Rs.20,000/- approximately by the petitioner. But the petitioner has not examined any expert or valuer to prove the alleged damage and its monetary assessment. It has been held by Hon'ble High of Madras in G. Natrajan Vs. P. Thandavarayan, 1969 RCR (Rent) 620 that mere rendering of subjective opinion may not be of any avail unless such opinion is backed by expert opinion. The counsel for respondent has argued that the mandate of Sec.14(1)(j) of DRC Act is that the damage has to be substantial damage and not mere wear and tear or minor damage. He has replied upon judgment of Delhi High Court in Suraj Prakash Chopra Raj Kumar Vs. Baij Nathi Dhawan & Anr., 103 (2003) DLT 645, wherein it has been held, "The ground under clause (j) makes a tenant liable to be evicted from the tenancy premises if it has caused "substantial damage" and not a mere damage."
It has been also held in this case that the onus of proving that the tenant has caused substantial damage to the demised premises, is upon the landlord and landlord must prove that addition and alteration in the tenancy premises is carried out by the tenant without the consent of landlord and the said construction has materially affected the tenancy premises and has materially altered the premises. Thus onus to prove that the tenant has caused substantial damage to the tenanted premise lies upon the landlord/petitioner. But the petitioner in the present case has failed to prove the substantial damage by cogent evidence. He has also failed to prove that the respondent has caused a damage of Rs.20,000/-. Though the alleged damage of electric installation, floor pits and breakage of windowpanes and doors, has not been proved by petitioner by cogent evidence, still even if it is presumed to be proved for the 2424 sake of arguments, this Court is of considered opinion that such damage is not a substantial damage as contemplated under Sec.14(1)(j) of DRC Act. For covering the case under Sec.14(1)(j), the damage should be "substantial" and not a mere damage. Since the petitioner has failed to prove any substantial damage which has materially affected and altered the tenanted premises, thereby lowering the value of the property, therefore the petition U/S14(I)(j) of DRC Act is dismissed.
32. Thus the net result of the above-said discussion is that the petition has been allowed U/Sec.14(1)(a) & (c) of DRC Act and is dismissed U/Sec.14(1)(j) of DRC Act. Eviction order is passed in favour of the L.R.s of the petitioner and against the L.R.s of the respondent U/Sec.14(1)(c) of DRC Act with respect to one drawing room-cum-dinning room which has been partitioned by a 7 feet high wall with Tarakota of two feet width at the top of the wall along with one kitchen of the premises bearing Road no. 49, Punjabi Bagh, New Delhi as shown in site plan EX.PW1/1. Though the petition U/Sec.14(1)(a) of DRC Act is also decided in favour of petitioner and against the respondent, however separate file be maintained to consider the entitlement of respondent for the benefit U/Sec.14(2) of DRC Act. Report of Naib Nazir be called for 25.04.09.
33. This file be consigned to Record Room.
(Announced in open Court on 13.04.09) (Navita Kumari) ARC(West), THC 2525 E-380/08/97 13.04.09 At 4.00 pm Present: Proxy Counsel Sh. Vijay Wadhwa for petitoner None for respondent.
Vide separate judgment, eviction order is passed in favour of the petitioner and against the respondent U/Sec.14(1)(c) of DRC Act with respect to one drawing room-cum- dinning room which has been partitioned by a 7 feet high wall with Tarakota of two feet width at the top of the wall along with one kitchen of the premises bearing Road no. 49, Punjabi Bagh, New Delhi. But the petition is dismissed U/Sec.14(1)(j) of DRC Act. The petition U/Sec.14(1)(a) of DRC Act is also decided in favour of petitioner and against the respondent. However separate file be maintained to consider the entitlement of respondent for the benefit U/Sec.14(2) of DRC Act. The Naib Nazir to report in separate file regarding deposit of rent, if any, on 21.04.09.
This file be consigned to Record Room.
(Navita Kumari) ARC/Delhi(West) 13.04.09 2626