Delhi District Court
M/S Angira Devi Hans Raj Gupta ... vs Hari Dass on 3 December, 2007
IN THE COURT OF SH ANIL KUMAR SISODIA; ARC/DELHI
Case No:- E-946/06
M/s ANGIRA DEVI HANS RAJ GUPTA CHARITABLE TRUST
through
(1)Sh. Mohinder Kumar Gupta &
(2)Smt. Kirti Seth
its trustees
16-B, Jungpura, New Delhi ..... PETITIONERS
Versus
HARI DASS
s/o Sh Daulat Ram,
r/o 4005, Raghu Ganj,
Chawri Bazar, Delhi ..... RESPONDENTS
Eviction petition u/s:- 14 (1) (a), (b), (c) & (j) of Delhi Rent Control Act, 1958
DATE OF INSTITUTION: 29.10.1997
DATE OF ORDER : 03/12/2007
J U D G E M E N T:
1. The present petition has been filed by the petitioner, a charitable trust u/s 14 (1) (a), (b), (c) & (j) DRC Act for eviction of the respondent.
The facts of the case, as set-out in the eviction petition, are that originally Smt Angira Devi was the owner/landlady of the premises and she filed an application u/s 19 of Slum Areas (Improvement & Clearance) Act before the Competent Authority Slums and during the pendency of the said 1 application she died on 23-03-1995. She had bequeathed the property in dispute to the petitioner Trust vide Will and thereby the petitioner Trust became the owner/landlord of the premises. The present petitioner was substituted in place of original owner Smt. Angira Devi and the requisite permission was obtained. It has further been submitted that respondent is a tenant in respect of a flat in property no. 4005, Raghu Ganj, Chawri Bazar, Delhi comprising four rooms, terrace in front of three rooms, veranda with jali, dining veranda, kitchen, store bath, WC, passage and balcony as shown in red colour in the site plan annexed with the petition. The respondent is a tenant at a monthly rent of Rs. 47.75 paisa and Rs. 9.08 paisa as house tax totalling Rs. 56.83 paisa per English calender month. The flat is provided with electricity, water and sanitary fittings. It has further been averred in the petition that tenant /respondent is a habitual defaulter in payment of rent and has not paid arrears of rent for the last more than three years ending 31st July, 1997 despite notice of demand dated 08-08-97 till today despite lapse of stipulated period of two months. The total rent legally recoverable for a period of 38 months comes to Rs. 2159.54 paisa. It has further been averred that respondent has caused or permitted to be caused substantial damage to the property by making unauthorized changes here and there in the property. He has also made holes, additions/alterations and laid pipes under the staircase of the 2 building which have endangered the building of the petitioner, which building is a complex of tenants. The respondent was let out the tenanted premises for residential purposes and part of it is being used for commercial purposes and the same has been sublet by the respondent to others. The respondent despite notice dated 08-08-97, has not withdrawn the misuse of the part of premises for commercial use.
2. The respondent was served with the summons of the petition and he has contested the case by filing written statement. In the WS, the respondent has raised preliminary objections that there is no privity of contract between the parties and petitioner has no locus standi for filing the present petition. There is no relationship of landlord and tenant between the parties. The petition has been filed solely to put illegal pressure on the respondent. The petitioner is vague, false and ill-motivated and does not contain complete facts.
On merits, the respondent has denied the relationship of landlord and tenant between the parties and respondent is not a tenant under the petitioner. It has also been stated that premises are residential-cum-non-residential and there is no subtenant in the premises. It has also been stated that house tax is not payable by the respondent to the actual landlord. The respondent has 3 not done anything to the premises which can be said to be a substantial damage. The respondent has also denied that there is any Will of Smt Angira Devi and prayer has been made for dismissal of the petition.
3. The petitioner has filed replication to the Written Statement filed by the respondent wherein the contents of the written statement has been denied and the contents of the eviction petition have been reiterated and re-affirmed.
4. During the course of trial, an order u/s 15 (1) DRC Act was passed in favour of petitioner and against the respondent directing the respondent to pay or deposit the arrears of rent w.e.f. 24-03-95 @ Rs. 56.83 paisa and respondent was further directed to deposit the future rent at the same rate.
5. In support of his case, the petitioner has examined Sh K L Pandey as PW1 and PE was closed.
6. The respondent expired during the course of the proceedings and his son Sudarshan Khanna was impleaded as respondent vide order dated 02-07- 2002. The respondent, in support of his case, has examined RW1 Sudarshan Khanna and Mahesh Aggarwal as RW2.
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7. I have heard counsel for petitioner Sh J L Jain and counsel for respondent Sh P D Gupta at length and have perused the record carefully. I have also gone through the written arguments filed on behalf of the petitioner .
8. At the outset, it may be mentioned that in the WS, respondent had denied the relationship of landlord and tenant between the parties and it was stated that respondent is not a tenant under the petitioner. The relationship of landlord and tenant between the parties is a basic ingredient for filing any petition under DRC Act and hence this issue is taken up at the outset.
In the petition, the petitioner has stated that original landlord was Smt Angira Devi and before her death she had executed a Will and the property in dispute was bequeathed to the petitioner trust. Counsel for petitioner has argued that petitioner has proved the certified copy of the Trust deed as Ex. AW1/2 and the copy of resolution as Ex. AW1/3. PW1 has also proved the certified copy of the death of Smt Angira Devi as Ex. AW1/5 and the certified copy of the Will as Ex. AW1/8. He has also argued that RW1 in his examination-in-chief by way of affidavit Ex. RW1/1 has admitted that premises in question was taken by Sh Hari Dass (deceased respondent) from Smt. Angira Devi. It has been argued that once the respondent have accepted 5 Smt. Angira Devi as landlord and owner of the premises, they are estopped from challenging the title of the petitioner who succeeded the property after her death. Counsel for respondent, on the other hand, has argued that petitioner has failed to prove the Will in accordance with law and no attesting witness of the Will or the Trust deed has been examined by the petitioner and hence it cannot be said that petitioner has become the landlord/owner of the property.
9. At the outset, it may be mentioned that petition under DRC Act is not a title suit and the ownership of the property is not required to be proved in absolute terms. In Plastichemicals Company Vs. Ashit Chadha & Anrs., 114 (2004), Delhi Law Times, 408 (DHC) where the ownership of premises was claimed on basis of Will and the same was denied by the tenant, it was held that once landlord is able to show that there is testament in his favour, landlord is deemed to have discharged his burden of ownership, vis-a-vis Rent Control Act. Where landlord is able to prove testament made in his favour by previous owner which at best could be challenged by heirs of that owner and not be tenant, the objection as to maintainability of eviction petition was held to be frivolous. In the present case, it is not the case of the respondent that some person other than the petitioner has claimed the ownership of the 6 property or had demanded the rent. The respondent has also failed to show that Will executed by Smt. Angira Devi was challenged or disputed by any of her legal heirs or that there is any dispute pending in any court of law with regard to authenticity of the said Will. The respondent being a tenant under Smt Angira Devi cannot challenge the authenticity of the Will and raise objections with regard to the succession of the petitioner with respect to the suit property. The petitioner has duly proved the certified copy of the Will as Ex. AW1/8. Hence, the petitioner, in my considered opinion, has been successful in establishing that it has succeeded the property owned by Smt Angira Devi by virtue of the Will Ex. AW1/8. Hence, the respondent is estopped from denying the title of the petitioner. Accordingly, it is held that petitioner is the landlord and owner qua the respondent.
10. After having determined the relationship between the parties, the findings on the various grounds for eviction raised in the eviction petition are discussed as under:-
U/s 14 (1) (a) DRC Act
11. The necessary ingredients required to be proved by the petitioner in order to succeed u/s 14 (1) (a) DRC Act are:- (1) that the tenant is in arrears of rent (2) the petitioner has demanded the rent from the tenant by legal demand 7 notice (3) the tenant has failed to pay or tender the entire arrears of rent within 60 days of the service of legal demand notice.
12. PW1 has deposed in his examination in chief that respondent were in arrears of rent and notice was got served on the respondent for demanding the arrears of rent and various other breaches through their lawyer Sh J L Jain. Copy of the legal notice has been proved as Ex. AW1/9, the UPC has been proved as Ex. AW1/10 and the postal receipt has been proved as Ex. AW1/11. It has also been stated that rent for three years period ending 31/07/97 was claimed through the notice but the respondent failed to pay or tender the same. The witness has also proved the counterfoil of the rent receipt as Ex. AW1/6 and the permission granted by the Competent Authority, Slums as Ex. AW1/7. In the cross-examination, PW1 has testified that respondent had paid the last rent in 1992 and Ex. PW1/PR1 was admitted to be counterfoil of the last rent receipt. RW1 on the other hand, in his examination in chief has remained silent about the payment of rent to the landlord. The affidavit of RW1 is also silent on the aspect that to whom the rent has been paid and when it was lastly paid. Even in the cross-examination of PW1, there is no suggestion to PW1 that rent has been paid up to date or that rent was deposited in the Court after receipt of legal demand notice Ex. 8 AW1/9. There is also no suggestion to the witness that legal notice Ex. AW1/9 was never received by the respondent. Thus, in view of the evidence available on record, I am of the considered opinion that petitioner has successfully established his case u/s 14 (1) (a) DRC Act. U/s 14 (1) (b) DRC Act
13. In the eviction petition, the petitioner has claimed that respondent has sublet the property to others and the premises are occupied by unlawful subtenants. This fact has been denied by the respondent in his WS. Perusal of petition itself shows that pleadings in this regard are vague as neither the name of the subtenant has been given nor it has been mentioned that whether single subtenant or there are more than one subtenant occupying the premises. The petition is also silent on the aspect whether entire premises has been sublet or only a portion has been sublet. The site plan exhibited by the petitioner is also devoid of these details.
14. In order to prove his case u/s 14 (1) (b) DRC Act, PW1 in his affidavit Ex. P1 has stated that property is residential one but the respondent and his family has shifted from the suit property and the same is not being used by the respondent or any other member of his family but the same is used by some 9 other person who is doing his business from the suit property and he is having the keys of the premises and opens and closes them.
In the cross-examination, PW1 has admitted that site plan Ex. AW1/1 does not show the floor on which the suit premises is situated and the stairs shown at point A in the site plan were shown in his hand in the site plan and the writing at point B of AW1/1 is in the handwriting of the counsel. In the cross-examination, he has testified that name of the subtenant is Ram Dass and the petitioner came to know this from the market only. Sh Ram Dass does the business of hardware in the tenanted flat and he is around 30 years of age and he is doing the business for the last about 10 years. Apart from the statement of the witness, there is no other material available on record to show that suit premises has been sublet, assigned or parted away by the respondent to the alleged subtenant.
15. Once, the petitioner was aware that Ram Dass was doing the business of hardware in the said flat, he could have proved the occupation of the subtenant by various other modes but that has not been done. Not only this, even the name of the subtenant does not find mention in the eviction petition. The petitioner has also failed to show that subtenant is in exclusive possession of the suit property or part thereof. It is well settled that mere 10 occupation is not sufficient to infer either sub-tenancy or parting with the possession. Subletting means the transfer of exclusive right to enjoy the property in favour of third party and the said right must be in lieu of payment of some compensation or rent and parting off of legal possession means possession with the right to exclude others (see M/s Delhi Stationers and Printers Vs. Rajinder Kumar AIR 1990 SC 1208). Similarly, the word "assignment" means transfer or making over to another of the whole of any property, real or personal, in possession or in action, or of any estate or right therein (see Gopal Saran Vs. Satyanarain AIR 1989 SC 1141). The expression "parting with possession" means giving possession to persons other than those to whom possession had been given by lease and the parting with possession must have been by the tenant; user by the other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words, there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but of the right of possession and so long as the tenant retains the right to possession, there is no parting with possession in terms of section 14(1)(b) of the Act. (see Jagan Nath ( deceased) through L.R.'s v/s Chander Bhan & ors. AIR 1988 SC 1362)
16. In the present case, neither the petitioner has been able to prove the 11 occupation of the alleged subtenant nor he has been able to show that alleged subtenant is in exclusive possession of the suit property or part thereof by divesting the original tenant.
17. Thus, in view of the aforesaid discussion, I am of the considered opinion that petitioner has failed to establish its case u/s 14 (1) (b) DRC Act. U/s 14 (1) (c) DRC Act
18. The petitioner, in his eviction petition has pleaded that respondent was let out the premises for residential purposes only but a part of it is being used for commercial purposes. The respondent, in his WS had taken the stand that premises was let out for residential-cum-commercial purposes. In order to establish the case u/s 14 (1) (c) DRC Act it is necessary for the petitioner to establish the purpose for which the premises was let out. The petitioner has examined PW1 who in his examination in chief reiterated the stand taken in the petition but again there are no specific depositions with regard to purpose of letting nor any material has been placed on record to show that premises was let out for residential purposes only. Cross- examination of PW1 shows that he has admitted that he does not know the terms of tenancy between the parties in the present case. He also does not 12 know the year of initial letting of the flat to the respondent and he has never seen the anything in writing about the terms of tenancy in his office. He also does not know who let out the property to the respondent and the purpose of the same. The witness is even unable to say if the property was give for composite purpose for business and residence. The rent receipt filed by the petitioner Ex. PW1/6 does not mention the purpose of letting. In the absence of any material on record to show that purpose of letting was purely residential, it cannot be said that user of the premises has been changed by the respondent if a part of the premises is being used for commercial purposes.
19. The onus of proving the purpose of letting was upon the petitioner. However, perusal of the testimony of PW1, as noted above, does not inspire confidence that purpose of letting was residential only.
20. Not only this, even if for the sake of arguments it is assumed that the premises was let out for residential purpose and a part of the premises is being used for commercial purposes, the petitioner does not ipso facto becomes entitled for eviction u/s 14 (1) (c) DRC Act. The change of purposes contemplated by Clause (c) is change from user of one kind to another 13 involving public nuisance or damage to the premises or which is otherwise detrimental to the interests of the landlord. A change of user which does not involve any such element will not amount to breach of Clause (c). The petitioner in his evidence has not at all deposed that the change of user has caused public nuisance or damage to the premises or how the change of user is detrimental to his interests. Thus, in my considered opinion, the petitioner has failed to prove his case u/s 14 (1) (c) DRC Act.
U/s 14 (1) (j) DRC Act
21. In the eviction petition it has been stated by the petitioner that respondent has caused substantial damages to the premises. It has further been alleged that respondent has made holes, additions/alterations and lay pipes under the staircase of the building which has endangered the building of the petitioner which building is a complex of tenants. The respondent has denied these allegations in his WS. In order to prove this ground, PW1 in his examination in chief by way of affidavit has testified that respondent has made holes in the staircase and changes/additions and alterations in the suit premises without the consent of the landlord and he has caused substantial damage to the property effecting super-structure of the property.
22. Apart from this, the petitioner has not examined any other witness. 14 PW1 in his cross-examination has admitted that respondent has made holes for affixing the pipes of 6' diameter from ground floor to the second floor and these holes have not been shown in the site plan Ex. AW1/1 as the said holes are outside the area of property in dispute. The witness has further stated that holes made by the respondent are not in staircase but adjacent to the same from the adjoining chajja from where the respondent has taken the pipe of boring. These changes as mentioned at point A to A on the page three of affidavit of witness are outside the scope of premises shown in red colour in the site plan Ex. AW1/1.
23. However, in so far as the ground substantial damage is concerned, it is well-settled law that it is not each and every act which entitles landlord to seek eviction from the tenanted premises. It has been held in Charan Singh Vs. Ananthi 1966 (68) PLR 780 that the onus is upon landlord to prove that tenant has caused substantial damage to the premises. He has not only to prove that the tenant has caused damage to the property but also to prove that such act has caused substantial damage to the property. Further, Hon'ble High Court has summarized regarding law on substantial damage in case titled as Suraj Parkash Chopra Raj Kumar Vs. Baij Nath Dhawan and another wherein it has been observed:
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(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 the landlord;
(iv) The said construction has materially effected 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 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) DRC Act 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 vale 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 16 monetary point of view or from utilization aspect of the building;
(ix) A temporary alteration or addition which can be easily repaired without causing damage to the structure is not substantial damage to the tenancy premises;
(x) 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.
24. Thus, considering the law laid down by Hon'ble High Court and the Hon'ble Apex Court, it is apparent that petitioner/landlord must establish ground of substantial damage by leading cogent evidence in this regard. The petitioner has also failed to examine any expert witness like an architect who could have deposed regarding damage caused to the tenanted premises. There is also nothing on record to establish that the alleged damage has either impaired the value and utility of the building or cause any structural changes in the suit property. Hence, I am of the considered opinion that petitioner has failed to prove his case on the ground of substantial damage and thus not entitled to an order of eviction u/s 14 (1) (j) DRC Act.
25. Thus, in view of the aforesaid discussion, I am of the considered opinion that the petitioner has failed to establish his case u/s 14 (1) (b), (c) and 17
(j) DRC Act. Hence, the petition is dismissed on these grounds.
However, the petitioner has succeeded in establishing his case u/s 14 (1) (a) DRC Act. This is a case of first default. An order u/s 15 (1) DRC Act was passed by Ld. Predecessor of this Court vide order dated 07-08-2002 directing the respondent to deposit arrears of rent w.e.f. 24-03-1995 @ Rs. 56.83/- paisa per month and to further continue to deposit the monthly rent at the aforesaid rate. The report of the Nazir was called to ascertain if the respondent is entitled to the benefit u/s 14 (2) DRC Act or not. Perusal of the report of the Nazir shows that the respondent has complied with the order passed u/s 15 (1) DRC Act punctually and has deposited the rent in time. The rent has been paid up to 26-03-2008. Hence, I am of the considered opinion that respondent is entitled to the benefit u/s 14 (2) DRC Act. Accordingly, the benefit u/s 14 (2) DRC Act is extended to the respondent and no eviction order is being passed against him u/s 14 (1) (a) DRC Act. No orders as to cost. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT On 3rd December, 2007 (ANIL KUMAR SISODIA) Additional Rent Controller; Delhi 18 E-946/06 03-12-2007 Pre: None Vide my separate judgement announced in the open court today the petition u/s u/s 14 (1) (b), (c) and (j) of DRC Act is dismissed. The petition is allowed u/s 14 (1) (a) DRC Act. Since this is a case of first default and the respondent has complied with order passed u/s 15 (1) DRC Act, the benefit u/s 14 (2) DRC Act is extended to the respondent and no eviction order is being passed against him u/s 14 (1) (a) DRC Act. No orders as to cost. File be consigned to Record Room.
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