Delhi District Court
W/O Shri S.N. Gupta vs M/S Modern Trading Co. M55 on 30 July, 2012
1
IN THE COURT OF Ms. VEENA RANI : ADDITIONAL RENT
CONTROLLER: NEW DELHI DISTRICT : PATIALA HOUSE COURTS,
NEW DELHI
Eviction Petition No:88/09/88
Smt. Lalita Gupta
W/o Shri S.N. Gupta,
R/o 56A/1, Friends Colony, New Delhi .....Petitioner
Versus
1. M/s Modern Trading Co. M55, Connaught
Circus, New Delhi.
2. Sh. L.B. Mulchandani (Since deceased)
S/o Late Sh. B.L. Mulchandani.
3. Sh. R.B. Mulchandani S/o Late Sh. B.L. Mulchandani.
M55, Connaught Circus, New Delhi.
4. Sh. A.B. Mulchandani S/o Late Sh. B.L. Mulchandani.
M55, Connaught Circus, New Delhi.
5. Sh. N.B. Mulchandani S/o Late Sh. B.L. Mulchandani.
(Since deceased) now represented by his
heirs:
(A) Mrs. Suman Mulchandani W/o Late Sh.N.B. Mulchandani
(B) Mr. Dinesh Mulchandani S/o Late Sh.N.B. Mulchandani
E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs
2
Both R/o M108, Greater Kailash Part1, New Delhi48
(C) Mrs. Bhavana Nanda W/o Sh. Hiten nanda
(D/o Late Late Sh.M .B. Mulchandani)
R/o 302, Lajpat Nagar, Jalandhar144001.
6. M/s Modern Trading Co.(Delhi) Pvt. Ltd.
M55, Connaught Circus, New Delhi. .....Respondents
PETITION UNDER SECTION 14 (1)(j) OF DELHI RENT CONTROL
ACT, 1958
DATE OF INSTITUTION
:1941988
DATE OF FINAL ARGUMENT
:02032012
DATE OF FINAL JUDGMENT
:30072012
JUDGMENT
1. Petitioner has filed the present eviction petition against the respondents for the eviction of the respondents from the property bearing shop No:55, M Block Connaught Circus, New Delhi110001. It is averred that the aforesaid premises was let out to the tenant M/s Modern Trading Company @ Rs.400/ per month excluding electricity charges. E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 3
2. It is averred that eviction of tenant is sought on the ground that tenant/respondent No:1 has illegally sublet, assigned or otherwise parted with possession of the tenanted premises to respondent No:6 without the written consent of the petitioner after 961952. it is stated that this fact has come to the knowledge of the petitioner in or about April, 1984 and a suit has been filed on the said cause of action. It is further averred that unauthorized structural additions and alterations are being made by the respondents without obtaining the consent in writing of the petitioner landlady. It is alleged that respondents No:2 to 5 made certain unauthorized additions/structural alterations in the tenancy premises in September, 1984. It is submitted that a notices dt.1741984 & 1291984 were issued to the respondents. It is stated that a petition for eviction under section 14(1)(b) & (j) bearing No:85/1985 was filed and which was pending in the court of Sh.M.L. Mehta, ARC, Delhi at the time of filing of the present eviction petition.
3. The respondents No:2 to 6 have filed their written statement on 14071988 in which it is stated by the respondents ground u/s 14(i)(f) of DRC Act for eviction of respondents on the ground of alleged damages to the suit premises was available to the petitioner and also an eviction petition No:85/1985 was filed by the petitioner and which was pending in E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 4 the court of Sh.M.L. Mehta, ARC, Delhi, therefore, the present petition of the petitioner is not maintainable under order 2 rule 2 CPC and liable to be dismissed with cost. It is submitted that after issuance of legal notice dt.1131984 and 1791984 the petitioner has filed a suit for perpetual injunction against the respondents on the same allegations which was pending in the court of Sh. Zile Singh Lohat, the then SJ, 1st Class, Delhi which was filed in the year 1984 and all these facts show that the petitioner was aware of the alleged damages being made the basis of the present suit. It is stated that M/s Modern Trading Company is not in existence and therefore, the petition of the petitioner is bad for misjoinder of parties. It is submitted that M/s Modern Trading Company was taken over by M/s Modern Trading Company (Delhi) P. Ltd w.e.f. 191965 and M/s Modern Trading Company (Delhi) P. Ltd is in legal occupation of the tenanted premises. It is denied by the respondents that they have caused any damage to the suit property or done structural changes in the tenanted premises as alleged by the petitioner. It is stated that it is in the knowledge of the petitioner that respondents have been using the tenancy premises for commercial purposes for running a show room. It is submitted that respondents have only done the beautification work and repair work in the tenanted premises. It is stated the renovating the shop in no way have caused or will cause any damage to the suit E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 5 property.
4. Petitioner filed reply to the objections raised by the respondents and reiterated its averments made in the present eviction petition. It is stated by the petitioner that the ground for the present eviction petition is entirely different than the one in Eviction case No:85/1985 of this court and cause of action for filing the present petition has arisen to the petitioner subsequent to the filing of the previous petition for eviction filed by the petitioner. It is submitted that causing of substantial damage to the tenanted premises is a continuing cause of action. The petitioner has reiterated that respondents have caused substantial damage to the tenancy premises.
5. Petitioner examined her husband Sh. Sat Narain Gupta as PW1. The photocopy of the GPA in favour of PW1 executed by the petitioner is Ex. PW1/1. Original GPA was seen and returned by the court. PW1 deposed that petitioner is the owner of shop No:55, M Block, Connaught Circus and respondent is a tenant in respect of the shop. He deposed that initially monthly rent was Rs.400/ and it was increased as per provisions of Section 6 A of the RC Act. PW1 deposed that site plan was got prepared by him and suit premises is shown in red colour in it. The site E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 6 plan is Ex. PW1/2. It is deposed by PW1 that respondent No:1 has illegally sublet , assign and parted with the possession of the premises with respondent No:6 without his consent and permission. PW1 further deposed that respondents No:1 to 5 have coarched or permitted to be coarched substantial damage to the tenanted premises as they have closed the activities in the shop and they have removed the doors, ventilators and have installed collapsible iron gate. It is deposed by PW1 that respondents created an illegal entrance in the premises by the hawker and other people who used the place for urinasation as a result of which there is a foul smell. He further deposed that family of the hawker also used to cook food in the varandah outside the premises. PW1 deposed that even the electric connection was disconnected but now probably the electric connection has been obtained. During his examination in chief PW1 further deposed that due to the negligence the premises had been damaged. PW1 deposed that vehicles are parked by people in front of the door because the shop is closed which caused nuisance to the neighborhood. It is stated by PW1 that New Delhi Traders Association wrote letter in this regard to the Medical officer of Health and a copy of the same was sent to petitioner, which is Ex. PW1/3. It is deposed by PW1 that the respondents No:1 to 5 besides damaging his property have depreciated its value substantially. PW1 further deposed that he got E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 7 inspected the premises from Sh. Phool Chand Goe, Architect and report given by said Architect is Ex. PW1/4 and site plan prepared by Architect is Ex. Pw1/5.
During his cross examination by the respondents , PW1 has stated that a compromise was arrived between him and respondents No:1 to 5, a copy of which is Ex. PW1/6. PW1 further stated that he does not recall the exact date when the respondent No:1 sub let the premises to respondent No:6 but the same was prior to 1985 for which he had got issued a legal notice. It is further stated by PW1 that subsequently as per the terms and conditions of compromise deed Ex. PW1/6, he agreed to locate the office of the respondent No:6 in suit premises. In his cross examination PW1 deposed that respondent No:2 to 5 are the partners of the defendant No:1 and he know that respondent No:6 is only a private limited company but he does not know who are the shareholder, directors of the said company. PW1 stated that shop has been closed since some time in 1986 by the respondents. PW1 further stated that after 1986, for some time the respondent sub let the premises to Weigan and Leigh , this fact he has brought on record on the earlier instance also pending before this court. During his cross examination PW1 stated that he does not know in whose possession the premises presently or whether it is respondent No:1 to 6 or Wigan and Leigh as of today. PW1 further E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 8 deposed that the value of his property has been diminished as the premises are lying locked and the hawkers with their families cook their foods and ease them self out side the gate of the shop in the varandah. PW1 deposed that they have also removed the wooden doors and the windows.
In his further cross examination PW1 stated that he has an office in the same building as that of the respondent and his office is at first floor. He further stated that hawkers who visit the suit property obstruct the ingress and egress to his office as the steps are next to the suit property and he has made the complaints in this regard to the respondents as well as to the police. PW1 deposed that he used to pass through the suit property when the classes being conducted by Wigan & Leigh. During his cross PW1 stated that he is not sure whether door and ventilator is in the suit premises as on today and at the time of when Wigan and Leigh was in possession. He further stated that the collapsible shelter open sidewhose and installed at the place where the door originally was and strucks the passage. PW1 denied the suggestion that respondents have informed him that said collapsible shutter is for security reason. PW1 stated that he can not admit or deny the suggestion that the collapsible shutter in the addition to the wooden door as he is not sure. PW1 further stated that the people can enter through the space of the ventilater which E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 9 are at point A and B and C to D in the site plan Ex. PW1/5 and he has seen the people passing through there. PW1 denied that suit premises is in perfect condition. During his cross examination, PW1 further stated that the premises were pained when classes of Wigan and Leigh were held in the premises. PW1 voluntarily deposed that Wigan & Leigh attempted to make alterations in the premises. PW12 further deposed that they scraped the floor and also made alterations on floor and put up a new floor in the premises without his permission and consent.
6. Respondents have examined Sh. R.B. Mulchandani son of late Sh. B.L. Mulchandani and filed his evidence by way of affidavit in which he has reaffirmed the averments made by the respondents in their objections.
During his cross examination RW1 Sh. R.B. Mulchandani stated that shop in question was let out before 1950 to the respondent No:1, who is a partnership firm, and paid rent to the petitioner till 1965. RW1 denied the suggestion that respondent No:6 was never a tenant in respect of the premises. He further denied that any damage has been caused to the tenanted shops or that show window, ventilators and doors have been removed from the premises. RW1 admitted that NDMC has issued notice to the respondent and the plaintiff in respect of the tenanted shop but he denied that said notice was regarding the damages for the suit property. E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 10 RW1 voluntarily deposed that said notice was regarding unauthorized construction. RW1 admitted that when the premises was let out the wood work, ventilators and doors were in existence and they are still in existence today. RW1 deposed that shutters were removed about two years ago. He again said that shutters were replaced and not removed about two years ago when the renovation was carried out in August, 2001. RW1 also denied that the wood work, show windows etc were removed prior to filing of the eviction petition. RW1 further denied that he removed the ventilators due to which unauthorized persons could enter into it which causes nuisance. Dw1 stated that an agreement was entered into with Wigan and Leigh College India Ltd in the year 1996, copy of which is is Mark DA. RW1 denied the suggestion that Architect Mr. Phool Chand visited the suit property on 3111992 and inspected the premises and prepared the report which is Ex. PW1/4. RW1 further denied the suggestion that he has not made renovation in the property but have caused damage to the suit property. RW1 also denied that the utility and value of the property has diminished due to damage (alleged) caused by him. RW1 deposed that suit property remained closed from 19801984. RW1 admitted the suggestion that suit property was closed at the time of filing of the present eviction. RW1 voluntarily stated that shop in question remain closed uptill 1987 till the filing of eviction petition as E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 11 they had started renovation in 1984 and as the petitioner had obtained injunction order from the civil court consequently the renovation could not be made. RW1 further denied the suggestion that the said injunction order was in respect of unauthorized construction and nor renovation.
7. I have heard the counsel for the parties and perused the record carefully.
8. Sh. Sat Narain Gupta the husband of the petitionerlandlord holds the power of attorney on behalf of the petitioner and has been examined as PW1. The entire case of the petitionerherein is hinged upon the nuisance as created by the hawkers and the passers by. A lot of inconvenience is also stated to be caused due to the congestion etc. created by the public and the vehicles being parked in front of the premises. The portion of the premises being roughly used(as urinal) by the public / hawkers etc. has resulted in a foul smell in the area. According to the petitionerherein the said acts have caused the depreciation of the value of the property. The damage is said to have been caused due to the removing of the doors and the ventilators. The damage is also said to have been caused due to installation of the collapsible iron gate.
E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 12
9. The Ex. PW1/3 is the letter received by the petitioner and Ex. PW1/4 is the report prepared by Sh. Phool Chand Goel, Architect.
10. The questions that arise from the arguments are:
a. Whether the present petition under S.14(1)(j) is barred due to the reason of it being filed after the dismissal of a previous petition under S.14(1)(j).
b. Whether the mere closure of the shop by the respondent No.6 would amount to substantial damage to the premises and whether the nuisance being created due to the purported neglect on part of the respondents No.1 to 5 would be covered under S.14(1)(j) of the DRC Act.
11. Whether the present petition under S.14(1)(j) is barred due to the reason of it being filed after the dismissal of a previous petition under S. 14(1)(j) No. The observations of the Supreme Court in Hope Plantations Ltd. Vs. Taluk Land Board (1999) 5 SCC 590 in para 26 :
"26. It is settled law that the principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 13 estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are "cause of action estoppel" and "issue estoppel". These two terms are of common law origin. ...Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice."
12. The previous petition was based on the possession been imparted to third parties and the present petition is based on the substantial damage to the premises. The two causes of action are thus distinct.
13. Whether the mere closure of the shop by the respondent No.6 would amount to substantial damage to the premises and whether the nuisance being created due to the purported neglect on part of the respondents No.1 to 5 would be covered under S.14(1)(j) of the DRC Act E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 14
- No. The petitionerlandlord has tried to make out a case under S.14(1)(j) of the DRC Act,1958 by contending that the respondenttenant has permitted to be caused substantial damage to the premises and has therefore caused the diminishing of the value of the premises by grossly neglecting it. According to S.14(1)(j):
S. 14(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 any court or Controller in favor 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 the 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 pre mises.
S.14(10) No order for the recovery of possession of any premises shall be made on the ground specified in clause (j) of the proviso to subsection (1), if the tenant, within such time as may be specified in this behalf by the Controller, carries out repairs to the damage caused to the satisfaction of the Controller or pays to the landlord such amount by way of E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 15 compensation as the Controller may direct.
14. Babu Manmohan Das Shah & Ors vs Bishun Das on 1967 AIR 643, 1967 SCR (1) 836 :
"Without attempting to lay down any general definition as to what material alterations mean, as such a question would depend on the facts and circumstances of each case, the alterations in the present case must mean material alterations as the construction carried out by the respondent had the effect of altering the form and structure of the accommodation. The 'expression' material alterations in its ordinary meaning would mean important alterations', such as those which materially or substantially change the front or the structure of the premises. It may be that such alterations in a given case might not cause damage to the premises or its value or might not amount to an unreasonable use of the leased premises or constitute a change in the purpose of the lease."
15. The question of causing substantial damage came in the judgments reported in 1979(1) RCR Pg. 407 where the lowering of the floor of the house was held to be causing substantial damage within the meaning of Sec. 14(10) of the DRC Act. Another relevant judgment is 21(1982) DLT 1. In this case one heavy big size cooler has been fixed on the ventilator on the East E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 16 side door by cutting holes in the wall, One wash basin has been fixed by cutting holes in the southern wall. The wooden show almirahs have also been fixed on the walls by cutting holes in the walls. The previous Dochhati has now been extended to the whole of the shop by cutting further four holes in the 5" thick western partition wall and eastern wall by fixing two more karries in the said holes. The stability of the partition wall had weakened. The court held that substantial damage has been caused."
16. In Shri Ghansham Sharma vs (F) Shri Ghansham Sharma 6 December, 2001 it was held that any construction by which the structure of the premises is altered amounts to substantial damage to the premises. Any structure which impairs the rights of the landlord amounts to substantial damage to the premises. Any structure which weakens the wall or puts additional load on the wall amounts to substantial damage to the premises. In that case too the mezzanine was constructed and it was held that the same amounted to the changing of the structure of the premises. Where structure of the premises are changed which are detrimental to the interests of landlord it amounts to substantial damage within the meaning of Sec. 14(1) (j) read with Section14 (10) of the DRC Act.
17. In Waryam Singh v. Baldev Singh, 2002 (2) Rent Law Reporter 694, the tenant was let out a shop with Verandah. He covered the Verandah E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 17 by constructing walls on the two sides and fixing rolling shutters in the front. He removed the original door, increased the area of the shop by covering the Verandah. The Supreme Court observed that the Alterations would increase the value and utility of the shop and in the absence of any proof of material impairment in the value or utility eviction order could not be passed.
18. In Dewan Chand v. Babu Ram, (1980) 2 RCJ 615, the tenant had removed rafters of the shop from the wall and placed a lintel thereon. He had also constructed two walls on the two sides of the Verandah and had fixed a door on the outer wall of the two sides. It was found as a matter of fact that the changes had caused cracks on the wall of the first floor, the Supreme Court held that the changes had impaired materially the value and utility of the shop.
19. In Gurbachan Singh v. Shivalak Rubber Industries, . In that case a number of shops had been let out to the tenants. Along with the shops there were some open spaces also. The tenants removed the roofs of the shops, the partition walls and the doors, they then laid a new roof merging the Verandah with the shops closing the doors and opening new doors and windows. The tenants also enclosed the open spaces. Result of all the alterations was that the premises was converted altogether into a new and different shape. On these facts it was held that the tenant had committed an act which impaired value and utility of the premises and that the impairment of value or utility E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 18 must be judged from the point of view of the landlord and no one else.
20. In Kartar Singh v. Kesr Singh and Anr.,(1980)2 RCJ 1, alteration was that a partition wall between two rooms had been demolished turning the two shops into one. The tenant had also made an opening in the partition walls of the rooms behind the front room. The tenant had removed the "Chukhats" and "Takhtas" of four doors and included the Verandah in the front room and fixed a shutter on one of the doors in Verandah and a tin door on the other. It was held in the case that this amounted to additions and alterations which impaired the value and utility of the building.
21. In Narain Singh v. Bakson Laboratories, 1981CLJ (Civil) 414, the tenant had enclosed the Verandah on the front and back side of the building and had opened a door by breaking the wall of the room. It was held that this diminished the value of the premises. The Hon'ble Judges in Waryam Singh (supra), however, found themselves unable to accept the said proposition and observed that it was not every additions and alterations which could be said to materially impair the value or utility.
22. In Om Prakash v. Amar Singh, , a temporary partition wall of 6 feet height was put up in a big hall. This partition was made without digging any foundation on the floor and the partition did not touch the ceiling. The tenant had also extended the preexisting tinshed on the open land by constructing E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 19 a wall of mud and enclosing the wall with bamboo tatters. It was held that before a landlord could get a decree it must be established that (i) the tenant had made the construction; (ii) the construction was without consent of the landlord; and (iii) the said construction has materially affected premises and further that the construction which had been carried out by the tenant as aforesaid, did materially alter the premises and, therefore, ground of eviction had been made out.
23. In Brijendra Nath Bhargava v. Harsh Wardhan, , the tenant had put up a "Dochatti" for storing the goods on the roof of the cabin with a wooden staircase from inside the cabin to go to the balcony. It was held that such construction should not only impair the value and utility of the building but may not also be of material nature.
24. In Om Pal v. Anand Swarup, (1938) 4 SCC 545, the Supreme Court observed that every construction or alteration does not impair the value and utility of the building and that the construction must be of material nature which should substantially diminish the value of building either from commercial and monetary point of view or from utilisation aspect of building. It was further held that the construction of Chabutra, almirah, opening of window, closing of a Verandah, replacing of leaking roof, placing partition in a room or making minor alterations for convenient use of accommodation would not materially alter the building. E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 20
25. In Savitri Devi v. U.S. Bajpai and Anr., AIR 1956 Nagpur 60, the tenant has raised temporary shed which did not alter or demolish any part of the house except a portion of the front wall. So far as the erection of temporary shed was concerned it was observed that it could not be said to be an act of waste. It was further observed that if the damage done is not significant and could be easily repaired such an act would not entitle the landlord to the grant of permission to terminate the tenancy unless it is likely to impair materially the value or the utility of the building.
26. In Moti Ram Banarsi Dass v. Shiv Dayal Trust, 1984 (2) RCR 421, Himachal Pradesh High Court held that the landlord could only succeed if he was able to prove by cogent evidence that the construction of three Parchattis by the tenant was held to have materially impaired the value and utility of the building.
27. The Hon'ble Punjab and Haryana High Court in Madan Lal Saggi and Anr. v. British Motor Car Company, 1984 (2) RCR572, held that where the landlord did not give the date of making of additions and alterations by the tenant the landlord's application must fail. In the said case the tenant had covered the Verandah into rooms but character of the building remained commercial. It was held that the tenant was not liable to be ejected. There should be structural alterations which change the nature and character of building to bring the act of tenant within the mischief of the statute it was E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 21 held:
28. The Hon'ble Punjab and Haryana High Court again in Mrs. K. Atma Ram and Anr. v. Kanwar Mohinder Singh, 1976 RCJ 336, held that onus of proving the ground of eviction was upon the landlord and that unauthorised construction, a hutment of temporary nature in contravention of the Capital of Punjab (Development and Regulation) Act, 1952 does not give rise to an inference mat the value and utility of the main building had been impaired.
29. The Hon'ble Punjab and Haryana High Court again in Gurmit Singh v. Smt. Kirpal Kaur, 1992 (2) RLR 271, held that false ceiling of temporary nature does not in any way impair the value and utility of the premises. It was held that replacement of roof and staircase was not material alterations in the tenancy premises.
30. In Vipin Kumar v. Roshan Lal Anand and Ors., , it was held by the Supreme Court that the impairment of the value or utility of the building is from the point of view of the landlord and not of the tenant. The acts of the tenant must be such that construction of the wall had materially impaired the value or utility of the demised premises. Whether the value and utility had materially been impaired is an inferential fact to be deduced from proved facts. In the said case the tenant without the consent of the landlord had E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 22 constructed walls and put up doors herein, which had stopped the flow of air and light. He had removed the doors. The Supreme Court held that the value and utility of the premises has been materially affected. It was further observed by the Supreme Court that "In determining the question the Court must address itself to the nature, character of the constructions and the extent to which they make changes in the front and the structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant". In considering that language it was held that putting up a door to the Verandah is not a material alteration.
31. Analysis of the case law cited on behalf of both the parties, as noticed above proposition of law was summarized in Suraj Prakash Chopra Raj Kumar vs Baij Nath Dhawan And Anr. (2003 IIIAD Delhi
705) (103 (2003) DLT 645) 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;
E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 23
(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;
(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;
E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 24
(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.
32. In G. Natrajan v. P. Thandavaryan, IX (1969) All India Rent Control Journal 733, Madras High Court observed that mere rendering of subjective opinion may not be of any avail unless such opinion is backed by expert evidence and that the landlord must prove by examining an expert witness that the act of the tenant amounts the building's utility being impaired or its value being diminished. In the present case the primary contention of the petitioner seems to be the nuisance in the area. In the name of the 'expert - evidence' as enunciated in Suraj Prakash Chopra the petitioner has not examined any architect, though a report has been exhibited as Ex. PW1/4 & Ex. PW1/5 prepared by an architect Sh. Phool Chand Goyal. During the cross of PW1 it was admitted by him that the report prepared by Sh. Phool E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 25 Chand Goyal only assessed the property from outside and that the said report does not take into account the interiors of the property. The said architect could not enter the premises as it was locked. In the report EX. PW1/4 the architect has observed that the hawkers and the other persons have answered the calls of nature in and around the premises resulting in bad smell resembling a slum condition. The entire frontage of the premises on both sides are blocked by parking of vehicle thereby blocking the passage and the corridors. This caused great hindrance to the visitors to the adjoining shop shops, premises and the offices. The report further states that substantial damage to the property was caused due to the removal of the ventilators and the windows. The electric wiring was also dislocated. Big holes in the side old walls were also made in order to fix the heavy round wooden beams.
33. An expert's opinion is a reasoned conclusion drawn from specialized knowledge based on facts which the expert has observed. What has happened here is that the petitionerlandlord has him exhibited the expert's report (without calling the expert) without having any technical knowledge of the same. As per the Indian Evidence Act only Sh. Phool Chand Goyal could have proved his report. Even if the report were to relied upon the same pertained to the outside conditions. The removal of the ventilator was related to the unauthorized ingress/ egress of the hawkers etc. The said report of the architect Sh. Phhol Chand Goyal was conducted at the instance of the Market Association due to the unhygienic conditions around E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 26 the premises in the area. The reasons were purely based on the health & hygiene. The association was more concerned with the stinking smell and the antisocial elements likely to be breaded in the said region. The structure of the premises and the substantial damage thereto was never an issue before the Market Association. The report was meant to be submitted so that the nuisance in the area could be curbed. The mandate of the said architect was limited to the health & hygiene issues. Moreover, the architect Sh. Phool Chand Goyal should have examined as a witness which would have given a fair opportunity to the respondenttenants to crossexamine him on the technical issues.
34. The PW1 has stated in during his cross that he was not sure whether the door and ventilator was there at the time when the Wigan & Leigh (institute) had taken the possession of the premises. The witness PW1 has also stated that alteration of the premises was merely attempted by Wigan & Leigh institute. Regarding the collapsible shutter a suggestion was put to PW1 that the same was put for the security reason. To that the reply of PW1 was that he could neither admit nor deny the said suggestion. It has also been stated by PW1 that the respondenttenant had the removed the windows and the wooden doors. However, in further crossexamination the witness PW1, who holds the power of Attorney in the present case, has admitted that his own office is situated on the first floor of the same building of the present premises and that the hawkers obstruct the ingress and the egress of the E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs 27 visitors who visit the office of PW1. As per the testimony of PW1 the complaint in regard to the hawkers etc. was made to the police.
35. The whole factspectrum (in view of the case laws discussed herein) would suggest that the petitionerlandlord (Power of Attorney) was more concerned about the nuisance in the area which effected the ingress and the egress to his own office situated in the first floor of the same building. Another ground was sought to be raised regarding the premises being left unoccupied for more than 10 years or so. However, the said ground is a distinct ground for eviction. As far as the real question of the substantial damage is concerned the petitioner has not been able to discharge the burden. Consequently the present petition fails and is accordingly dismissed.
File be consigned to record room.
Announced in the open court on
this 30th day of July, 2012 (VEENA RANI)
ADDITIONAL RENT CONTROLLER,
PATIALA HOUSE COURTS, NEW DELHI
E. P.No:88/09/88, Smt. Lalita Gupta Vs. M/s Modern Trading Co. & Anrs