Delhi District Court
Sh. Suresh Gupta vs Sh. Rakesh Malhotra on 22 November, 2018
IN THE COURT OF NAVEEN K. KASHYAP, COMMERCIAL
CIVIL JUDGE-CUM-ADDITIONAL RENT CONTROLLER
(WEST), TIS HAZARI COURTS, DELHI.
(This petition falls under the category of "Senior Citizen
matter" pending in this court)
RC No. 5479/16
Sh. Suresh Gupta
S/O Late Sh. Suraj Bhan
R/O A-8/45, Shera Wali Kothi,
Rana Pratap Bagh, Delhi.
.......Petitioner
VERSUS
Sh. Rakesh Malhotra
S/O Ram Lal,
R/O A-8/45, Second floor,
Shera Wali Kothi,
Rana Pratap Bagh, Delhi.
.......Respondent
Date of Institution : 30.05.2015
Date of Judgment : 22.11.2018.
Decision : Petiton Dismissed U/S 14(1) (f)
as well as (j) of DRC Act.
FINAL JUDGMENT
THE FACTS:
1. By filing the present petition, original petitioner Sh. Suresh Gupta is seeking eviction of respondent Sh. Rakesh Malhotra in respect One room, kitchen, latrine, bathroom and half terrance on the second floor of the property bearing No. A-8/45, Shera Wali Kothi, Rana Pratap Bagh, Delhi as shown in color red in the site plan attached with petition (hereinafter referred to RC No. 5479/16 Sh. Suresh Gupta Vs. Sh. Rakesh Malhotra Page 1 of 11 as suit premises) under Section 14(1) (f) & (j) of Delhi Rent Control Act, 1958(in short "DRC Act").
2. The facts in brief, as narrated in the petition, are that the suit property was let out to the respondent for residential purposes on oral agreement in December, 1991 at a monthly rent of Rs. 1,611/- per month excluding electricity and water charges. The suit premises is residential property.
2.1. It is further alleged by petitioner that in order to cause harassment to petitioner earlier also in the year 1998 the respondent raised illegal construction by boring a motor pump in the suit premises.
2.2. It is further alleged by petitioner that the respondent unauthorisedly and illegally raised structure in a portion which had not been let out to the respondent and using the same as a room. That the respondent had changed the structure of bathroom including the change in the latrine sheet etc. Which had caused seepage in the first floor and ground floor of the suit property. That the respondent is not allowing the petitioner to visit or enter the tenanted portion to inspect the tenanted portion, therefore, the site plan prepared is not on scale. That the presmises was let out to the respondent for residential purposes but he had caused or permitted to be caused substantial damage to the tenanted premises. 2.3 That the respondent without permission had installed the water tank on the roof of the second floor and from the said tank water is leaking every time which also caused seepage on all the floors. Furhter, it is alleged that respondent has placed heavy flower pots etc. on whole of the roof of the first floor due RC No. 5479/16 Sh. Suresh Gupta Vs. Sh. Rakesh Malhotra Page 2 of 11 to which the premises has become unsafe and unfit for human habitation and required bonafide by the landlord/ petitioner for repair, which cannot be carried out without the premises being vacated.
2.3. The petitioner even issued a notice dated 01.03.2014 to the respondent but no reply had been received. 2.4. It is further alleged that the petitioner had filed petitioner U/S 14 (1)(a) of DRC Act against the respondent which had already been decreed and the respondent had been given the benefit of first default. Accordingly, the petitioner prayed that a decree of eviction be passed in favour of petitioner and against the respondents.
3. Written statement dated 02.11.20151 was filed by the respondent. In the WS the respondent raised the objection that the present suit has been filed by the petitioner just to harass the respondent . On merit it is denied by the respondent that he has unauthorisedly or illegally raised structure in portion, which had not been let out to the respondent and using the same as a room. It is further denied that the respondent had changed the structure of bathroom, including the changing the latrine sheet etc. which has also caused seepage in the ground and first floor of the property. It is further denied that the respondent is not allowing the petitioner to visit or enter the suit tenanted portion of the suit property. The other contents of the plaint were denied by the respondent and it is prayed that the suit of the petitioner be dismsised .
4. Thereafter, replication dated 23.11.2015 was filed by petitioner. In the replication, the petitioner denied the stand RC No. 5479/16 Sh. Suresh Gupta Vs. Sh. Rakesh Malhotra Page 3 of 11 taken by the respondents and reiterated his original stand taken in the petition.
5. Thereafter, evidence was led by both the parties. The petitioner examined himself as PW-1 and he tendered his evidence by way of affidavit Ex. PW-1/A . He deposed on the lines taken in his petition. Further, he proved various documents viz. Site plan as Ex. PW 1/1, photographs as Ex. PW 1/ 2 ( colly), Ex. PW 1/3 is legal notice, Ex. PW 1/ 4 is postal receipt and Ex. PW 1/5 is proof of service Petitioner /PW-1 was cross examined at length by the respondents' side.
6. Respondent examined himself as RW-1 by way of affidavit Ex. RW1/A. RW-1 deposed on the lines of defence taken in the WS and proved the document as Mark A and B. He was cross examined at length by Ld. Counsel for petitioner.
Further, ASI Manoj Raghav from P S Bharat Nagar was examined as RW-2 . He proved the summoned record i.e. local complaint register from 01.01.2014 to 01.01.2015. He proved the copy of complaint as Ex. DW 2/X . He was cross-examined by Ld. Counsel for the petitioner.
7. Arguments were heard in detail. Further, I have perused the record and gone through the case law relied by the parties.
U/S 14 (1) (j) OF DRC ACT:-
8. The dominant idea of section 14(1)(j) of Delhi Rent Control Act is that a check should be put upon the tenant's RC No. 5479/16 Sh. Suresh Gupta Vs. Sh. Rakesh Malhotra Page 4 of 11 negligent way of using the premises let out to him which might result in substantial damage to it. Of course, waste in a normal user of the premises is not covered by this clause.
9. Further in an application for recovery of possession under clause (j), the Controller has first to determine the question whether the tenant has caused or permitted to be caused substantial damage to the tenanted premises. It he returns a finding in favour of the tenant that is the end of the matter and he must dismiss the petition for eviction.
But if it is held that the tenant had caused for permitted to be caused substantial damage to the premises, the controller is not competent to immediately make an order for eviction because the provision contained in section 14 (10) mandates the controller to make an order directing the tenant either to carry out the repairers to the damage caused within a specified period or to pay the landlord such amount by way of compensation as he may direct.
Order of recovery of possession can be made only if the tenant fails to comply with this order.
10. Further it is not every act of waste on the part of the tenant which will entitle the landlord to obtain an order of eviction and what should be the nature and extent of the waste will depend upon the circumstances of each case.
12. In Om Prakash V. Amar Singh [(1987) 1 SCC 458], it was held that the essential element which needs consideration is as to whether the construction are substantial in nature and they alter the form, front and structure of the accommodation. It is not possible to give an exhaustive list of constructions which RC No. 5479/16 Sh. Suresh Gupta Vs. Sh. Rakesh Malhotra Page 5 of 11 constitute material alterations, as the determination of the question depends on the facts of each case.
Furthermore, no hard and fast definition of "substantial damage"
is possible. Each case depends upon its own facts. An alterations which diminishes the value may fall within the definition of "damage". Every material alteration may not necessarily amount to "damage". The word used is "damage"
and not "material alteration".
Thus ,broadly speaking ordinary wear and tear or even damage arising from the accepted use of building and not affecting materially its value and utility is not a substantial damage.
11. In fact,in the case under Section 14 (1) (j), the following propositions need to be kept in mind:
(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 the construction without the consent of landlord.
(iv) the said construction has material 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 extent to which they made 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 RC No. 5479/16 Sh. Suresh Gupta Vs. Sh. Rakesh Malhotra Page 6 of 11 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 of 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;
(ix) A temporary change, 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.
(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 the tenant.
x) whether the value and utility had materially been impaired is an inferential fact to be deduced from proved facts.
12. With this background, this court turns to the facts of the case in hand. At this stage, it would be appropriate to note that decision of each individual petition depends on the peculiar facts, circumstances and evidence placed on record in that RC No. 5479/16 Sh. Suresh Gupta Vs. Sh. Rakesh Malhotra Page 7 of 11 particular petition. Further as already noted above ,the burden of proof is on the petitioner to prove the ingredients of section 14 (1) (j) of DRC Act. Further it is pertinent to note that petition of present nature is to be decided on the basis of preponderance of probabilities.
13. Further ,before proceeding further, it is pertinent to note that respondents have not challeged the landlordship of petitioners or the subject matter jurisdiction of this court of Rent Controller.
14. In this case, opposite oral stands are taken by petitioner and respondent side.
15. It is deposed by the PW-1/ petitioner that respondent/ tenant has unauthorisedly and illegally raised structure in a portion which was not let out to the respondent and he is using the same as room. It is further deposed that he has changed the structure of bathroom including changing the latrine sheet etc., which has also caused seepage in the first floor and ground floor of the property. It is further deposed by PW-1 that respondent has installed a water tank on the roof of the second floor and water is leaking every time which has also caused seepage on all floors. It is further deposed that despite issuance of legal notice dated 01.03.2014 respondent has not replied to the same.
16. As already noted above initial onus of proof is upon the petitioner/landlord to prove that there is a substantial damage to the suit property by the tenant. In the present case, in the RC No. 5479/16 Sh. Suresh Gupta Vs. Sh. Rakesh Malhotra Page 8 of 11 considered view of this court the petitioner has failed to prove the essential ingredients of Section 14 (1) (j) of DRC Act itself. There is only a bald allegation without any substantive evidence on record to show that there is any seepage due to plumber work or water tank that too because of the negligence of respondent. Further, even if it is presumed for the sake argument that there is any such seepage etc., it is not proved, including by any expert evidence, that same has resulted in substantial damage to the suit property. Further, in his cross- examination RW-1/ respondent denied the suggestion that there is a overflow from the water tank installed by him. In fact the allegations made by the petitioner are vague and bald and it appears that there is a half hearted approach on the part of petitioner in proving his case. Further, it is a matter of record that suit property in question was constructed long back. Thus it is an old property subject to normal wear and tear. In fact it is admitted by PW-1 during his cross-examination that it is the plumber, who told him about the change of WC in the bathroom under the possession of respondent, which is the alleged source of seepage by the petitioner. But such plumber is not examined, as such it is nothing but a hearsay evidence . And no efforts are made despite opportunity to try to prove the same on record otherwise.
Further,the respondent/RW-1 categorically denied the suggestion that he built up a super structure over the property or constructed a room. In fact, it is deposed by RW-1 that there is a "peepal tree" grown in roof of the building, and respondent requested the petitioner to remove the same as same is reason for walls about to fall. But it is claimed that petitioner did not do anything.
RC No. 5479/16 Sh. Suresh Gupta Vs. Sh. Rakesh Malhotra Page 9 of 1117. From the above said discussion, it is held that the petitioner has failed to prove his case U/S 14 (1) (j) of DRC Act U/S 14 (1) (f) OF DRC ACT:-
18. As per Section 14 (1) (f) of DRC Act it is to be proved by the petitioner that the premises has become unsafe or unfit for human habitation and is required bonafide by the landlord for carrying out repairs which cannot be carried out without the premises being vacated.
19. It appears that in the present petition the petitioner has concentrated mostly on Section 14 (1) (j) of DRC Act. And infact sufficient evidence is not led at all to satisfy the conditions of Section 14 (1) (f) of DRC Act. On a bare reading of evidence of PW-1, who is the only witness and petitioner himself, it is clear that apart from bald allegation of construction and seepage, which are not believed by the court, as already discussed above, there are no evidence to satisfy the requirement of clause (f). Further, there is no evidence on record to prove that such alleged repair cannot be carried out without the premises being vacated. As such, it is held that petitioner failed to prove the requirement of section 14 (1) (f) of DRC Act also.
20. As a result, the present petition is dismissed. No order as to costs. File be consigned to Record Room.
Digitally signed by NAVEEN Announced in the open court KUMAR NAVEEN KUMAR KASHYAP on 22.11.2018 KASHYAP Date: 2018.11.24 16:09:10 +0530 (This judgment contains 11 pages). Naveen Kr. Kashyap) RC No. 5479/16 Sh. Suresh Gupta Vs. Sh. Rakesh Malhotra Page 10 of 11 Senior Civil Judgecum Rent Controller, North West District Courts, Delhi. RC No. 5479/16 Sh. Suresh Gupta Vs. Sh. Rakesh Malhotra Page 11 of 11