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Delhi District Court

Raj Kumar vs Rajesh Jain on 29 January, 2013

In the Court of Sh. Rakesh Kumar­II: Additional Rent Controller 
      of East Delhi District at Karkardooma Courts, Delhi.

Eviction Petition No.E­207/08
Unique I.D. No.02402C0561402008

In the matter of :­
Raj Kumar
S/o late Sh. Phool Singh,
R/o A­138, Vikas Marg, 
Shakarpur, Delhi­110092.                       .....Petitioner 

        Versus

Rajesh Jain 
C/o Wool Store,
A­138, Vikas Marg, 
Shakarpur, Delhi­110092.                       .....Respondent

Date of institution           : 30.07.2008 
Date on which arguments heard : 29.01.2013
Date of decision              : 29.01.2013


      Application for Eviction of Tenant under Section 14(1) (j) & 
     Section 6 A of the DRC Act of The Delhi Rent Control Act, 1958

JUDGMENT 

1. This is a petition for the recovery of possession of a shop situated at the ground floor in the property bearing no. A­138, Vikas Marg, Shakarpur, Delhi­92 (hereinafter referred to as 'the premises') as shown in colour red in the site plan attached, made E­207/08 Raj Kumar v. Rajesh Jain Page 1 of 8 by the landlord Raj Kumar against the tenant Rajesh Jain on the grounds mentioned in clause (j) of the proviso of sub­section (1) of Section 14 and Section 6A of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the DRC Act').

2. The facts of the case are that the respondent is a tenant with respect to the shop situated at the ground floor in premises A­138, Vikas Marg, Shakarpur, Delhi at a monthly rent of Rs. 1000/­ per month and the petitioner is the co­owner and co­ landlord of the property in question. It is stated that the respondent has carried out material alteration in the tenanted shop by changing the basic structure of the shop by increasing the shutter of the shop towards the main road side without the consent of the landlord and the respondent was asked to remove the alteration but of no use and it is prayed to pass an eviction order.

3. On notice, the respondent appeared and filed the detailed written statement taking many preliminary objections as regards locus standi, cause of action etc. In reply on merits, it is submitted that the petitioner is neither a landlord nor the owner of the tenanted premises and Smt. Kripi Devi is the owner/landlady who had let out the same to the respondent and she also issued the rent receipts. It is submitted that no alterations has been carried out with respect to the tenanted premises and the shutter has not been increased towards the E­207/08 Raj Kumar v. Rajesh Jain Page 2 of 8 main road side. All other allegations of the eviction petition are denied and disputed by the respondent and prayed for dismissal of eviction petition.

4. The petitioner filed the replication to the written statement wherein he denied the contents raised by the respondent in her written statement and reiterated the averments made in the present eviction application.

5. I have heard counsels for the parties and gone through the material available on record carefully.

6. For getting an eviction order on the grounds under Section 14 (1) (j) DRC Act, the petitioner is required to be proved that :­ i. the tenant had made the construction, ii. the construction was without consent of the landlord; and iii. the said construction has materially effected the premises and further the construction which had been carried out by the tenant as aforesaid did materially alter the premises.

7. To prove his case, the petitioner appeared in the witness box as P­1 who deposed that he is the co­owner/co­landlord of the premises after the death of Sh. Phool Singh and the respondent is his tenant with respect to the shop in question and the respondent has carried out the material alteration in the tenanted premises by changing the basic structure of the same and by increasing the shutter of the tenanted shop towards the main road without the consent of the co­landlord and he was E­207/08 Raj Kumar v. Rajesh Jain Page 3 of 8 asked to remove the alteration but of no use. He deposed that legal notices regarding the alteration were given on 09.01.08 and 01.02.08 through speed post as well as UPC but till date the respondent has done nothing and he exhibited the photographs Ex.PW1/1 and EX.PW1/2, notice dated 01.02.08 Ex.PW1/3, Upc Ex.PW1/4, postal receipt Ex.PW1/5, another notice dated 09.01.08 Ex.PW1/6, UPC Ex.PW1/6A, postal receipt Ex.PW1/6B and site­ plan is Ex.PW1/7.

8. To disprove the case of the petitioner, Rajesh Jain appeared in the witness box as RW1/X who deposed that he is tenant in one shop under the tenancy of Smt. Kirpi Devi since July 1997 and she used to issue the rent receipts to him and he has not carried out any alteration in the tenanted shop and still the tenanted shop is in actual structure. He deposed that the petitioner has no concern with the tenanted shop and he is neither the owner nor landlord nor any rent agreement has ever been made or executed between the petitioner and him nor is the petitioner an authorized person to file the present petition and he is depositing the monthly rent to MCD w.e.f. March 2005. The respondent relied upon the rent receipt Ex.RW1/A, reply dated 25.02.08 to the legal notice dated 09.01.08 Ex.RW1/B, postal receipt Ex.RW1/C, reply to legal notice dated 01.02.08 Ex.RW1/D, postal receipt Ex.RW1/E and UPC Ex.RW1/F.

9. This witness was cross examined at length but nothing E­207/08 Raj Kumar v. Rajesh Jain Page 4 of 8 fruitful came out for the petitioner.

10. So far as the relationship of landlord and tenant is concerned, the respondent has admitted in his reply to legal notice dated 25.02.08 in para 2 that the petitioner is his landlord.

11. On appreciation of evidence brought on record by the opposite parties and from the pleadings of the parties, it is clear that the petitioner has failed to prove that the respondent has made any construction in the shop in question. The petitioner is not aware about the exact date of inception of tenancy as the same was not let out by him. The petitioner has also not specified as to what was the original structure of the premises before the construction as the measurement of the property is not given. As per the settled law, the petitioner has to established his case to the effect that the construction raised over by the respondent has materially affected or altered the tenanted premises so that the court may determine the nature, character, construction and the extent to which the alteration/addition had been carried out in the structure of the tenanted premises. In the present case, the petitioner has not assessed or elaborated the exact nature of substantial damage to the premises which in my opinion does not attract the provisions of Section 14(1) (j) of the DRC Act against the respondent/tenant.

12. I am citing with the case law of Suraj Prakash Choppra Raj Kumar v. Baijnath Dhawan & Anr. 2003 (2) RCT (Rent) 83 E­207/08 Raj Kumar v. Rajesh Jain Page 5 of 8 wherein the proposition of law with regard to Section 14 (1) (j) of DRC Act was summarised and the main points for consideration were held as under:­ "(i) The onus to proving that the tenant has caused substantial damage to the demised premises is upon the landlord.

(ii) Landlord has to prove it by cogent evidence and whenever necessary, expert witnesses should be examined.

(iii) An eviction order under clause (i) could be passed if 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.

(iv) 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 utilization aspect of the building.

(v) A temporary alteration or addition which can be easily repaired without causing damage to the structure is not substantial damage to the tenancy premises."

13. In the entire petition, the petitioner has failed to prove the substantial damage to the demise premises and no expert witness has been examined to prove the damage. It is also not proved on record as to what addition or alteration has been carried out by the respondent which had brought about material impairment in the value and utility of the premises. The main ground of the petitioner is that the respondent has changed the basic structure of the shop by increasing the shutter towards the main road side. Hon'ble Supreme Court in Om Pal v. Anand E­207/08 Raj Kumar v. Rajesh Jain Page 6 of 8 Swaroop (dead) by LRs 1998 (2) RCJ 612 (SC) has held that "it is not every construction or alteration that would result in material impairment to the value or the utility of the building. The construction must not only be one affecting or diminishing the value or utility of the building but such impairment must be of a material nature i.e. of a substantial and significant nature."

14. Hon'ble Mr. Justice P.K. Bahri in Asha Dass & Ors. v. Dunlop India Ltd. 36 (1998) DLT 100 Delhi has held that"­ "administrative waste or equitable waste which are made by the tenant for making the premises more comfortable for his own use which do not cause any structural change or damage to the premises are always permissible."

15. The construction of chabutara, closing a veranda, raising any wall without digging foundation would not amount to structural change of a substantial character and reference can be made to Brijender Nath Bhargava v. Harsh Vardhan (1998) SCC

454.

16. The petitioner has failed to prove any date, month and year of the construction and also failed to prove the substantial damages. Even otherwise, if the tenant has not committed acts as are likely to impair materially either the value of the rented building or the utility of the said building, no order of eviction can be passed. In my opinion, increasing the shutter towards the main road is not the material impairment in the value and utility of premises and it is not a substantial damage.

17. In the light of above discussion, I am of the opinion that the petitioner has failed to prove the essential ingredients for getting an order under Section 14(1) (j) the DRC Act. The petition for recovery of possession under clause (j) of the proviso to sub­ section (1) of section 14 and Section 6A of the DRC Act is dismissed.

Announced in the open court (Rakesh Kumar­II) on 29.01.2013 Additional Rent Controller (East) Karkardooma Courts, Delhi.