Delhi District Court
Mrs. Joban Kaur Puri vs Mrs. Sheila Gujral on 5 July, 2014
E No. 04/12 1 05.07.2014
IN THE COURT OF Ms. KIRAN GUPTA, SENIOR CIVIL JUDGECUM
RENT CONTROLLER, NEW DELHI DISTRICT, PATIALA HOUSE
COURTS, NEW DELHI
E No. 04/12
Unique ID No. 02403C0018052012
Mrs. Joban Kaur Puri
D/o. Late Dr. A S Duggal
W/o. Mr. Umang Kumar Puri
R/o. 43B, Khan Market,
New Delhi 110 003 ....Petitioner
Versus
1. Mrs. Sheila Gujral
W/o. Late Sh. V K Gujral
43 A, Khan Market, Ground floor,
New Delhi 110 003
2.Mr. Vishal Gujral
S/o. Late Sh. V K Gujral
43 A, Khan Market, Ground floor,
New Delhi 110 003
3.Mr. Rohit Gujral
S/o. Late Sh V K Gujral
1304, Jor Bagh Market
New Delhi 110 003
...... Respondents
Date of institution : 17.02.2006
Date of final arguments : 03.05.2014
Date of judgment : 05.07.2014
JUDGMENT:
1 Present petition is under section 14 (1) (b)(c) (j) & (k) of the Delhi Rent Control Act (hereinafter referred as the Act), for Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 1of 37 E No. 04/12 2 05.07.2014 recovery of possession of shop bearing no. 43 A, Ground Floor, Khan Market, New Delhi as shown red in the site plan filed along with the petition (hereinafter referred as tenanted premises).
2 Brief facts of the case as stated in the amended petition are that:
Petitioner is the landlord of the abovesaid tenanted premises which was let out to Sh. V K Gujral on 05.06.1979 by her father vide lease agreement dt. 05.06.1979 duly registered as document 2556 Addl. Book no. 1 Vol 4127 at pages 174 to 152 on 12.06.1979 for the specific purpose as showroom and office only for the monthly rent @ Rs. 800/ per month exclusive of house tax and electricity. After death of Shri V.K. Gujral, tenanted premises has been inherited by his legal heirs i.e the respondents. It is alleged that respondents have sublet, assigned and / or parted with possession of the tenanted premises to Twinkle Art Gallery (TAG) and also to Capital Refrigeration Corporation without oral or written consent of petitioner or her predecessor in interest. It is further alleged that respondent has carried out unauthorised additions, alterations in the tenanted premises without obtaining oral or written consent of petitioner or her predecessor in interest. It is stated that Capital Refrigeration Corporation was never the tenant of petitioner or her predecessor , late Sh. A S Duggal. The premises is misused by the respondent, contrary to the terms of the lease and the said misuse has caused substantial damage to the premises. Part of the premises is being used for the business of sales, service and hiring of Air conditions through a Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 2of 37 E No. 04/12 3 05.07.2014 concern namely M/s. Capital Refrigeration Corporation. This misuse is a public nuisance, and has caused substantial damage to the property and detrimental to her interest. There is some manufacturing business going on in the premises, welding and some motors have been installed which cause a lot of vibration and are damaging the property. Also there was no water or sanitary connection in the premises when the same were let out, however, AC's are constantly being washed, all of which is a misuse and is causing damage to the property and a heavy nuisance to the public in Khan Market. Installation and servicing of car AC's are also being done from the said premises which are creating further nuisance as it results in a lot of cars being parked around the premises causing further nuisance to the general public. The respondents were called to stop the misuse vide notice dt. 01.06.2005 but the respondents have failed to do so. In their reply dt. 05.07.2005 they have stated that these actions do not amount to misuse.
2.1 It is further stated that respondents did not obtain the consent in writing from the petitioner or her predecessor in interest for such misuser. After the commencement of the tenancy , respondent caused substantial damage to the premises by making many additions and alterations in the premises including unauthorized encroachment of veranda, unauthorized constructions of two walls in the corridor, unauthorized covering of the veranda, unauthorized removal of wooden front door, unauthorized putting up of shutter between the walls enclosing the veranda, unauthorized making of big holes in the weight bearing walls of old construction to build unauthorized loft and Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 3of 37 E No. 04/12 4 05.07.2014 also for other purposes as shown yellow in the site plan. It is further alleged that the respondents have even covered the front veranda thereby causing substantial damage to the tenanted premises. It is alleged that despite the service of the legal notice, the respondents have not discontinued the misuser , hence the present petition.
3. In the written statement filed by the respondents, it is stated that the petitioner has no locus standi to file the present petition in as much as she has failed to establish her ownership in respect of the tenanted premises. The petitioner, upon the death of Dr. A.S. Duggal, who was the owner of the premises in question, represented to the respondents that she is the sole and lawful owner and beneficiary of premises in question and upon her representation only, the respondents paid rent to her regularly. However, the respondents deny that she is the actual owner or beneficiary or successor of late Dr. A.S. Duggal. The respondents reliably understand that there are other legal heirs of late Dr. A.S. Duggal. The petitioner is also not the owner of the premises in the records of L&DO, NDMC, DDA or the other concerned authorities.
3.1 The respondents have been paying rent to the petitioner only in good faith as after the death of Dr. A.S. Duggal the petitioner represented that she is the sole beneficiary of the deceased. The petitioner in the year 1987 had filed two petitions against the respondents under section 14(1) (b) and 14 (1) (a) (c) & (j). That in 1987 when the she had filed the said two petitions the property in question was not mutated in her name nor did she had a clear title to the Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 4of 37 E No. 04/12 5 05.07.2014 property in question. Even at the time of filing of the present petition, the property in question is not mutated in her name nor is she a recorded owner in the records of L&DO and the other concerned authorities.
3.2 It is stated that the premises is used for commercial purpose and the same was let out for commercial user only and the said user has not been converted in any manner by the respondents. Since the inception of the tenancy till date, the premises is being used only for commercial purposes. The premises was used by late V.K. Gujral for running his business and after the death of Shri V.K. Gujral the said business has been carried on by his legal heirs being the respondents. That the respondents are also carrying on their business of selling art products from the tenanted premises and the same is within the terms and conditions of the lease deed and is in no way contrary to any of the condition of the lease deed or of any of the authorities.
3.3 The petitioner has not disclosed in the entire petition filed by her as to and in what manner the respondents have used or dealt with the premises contrary to any conditions imposed on the landlord by the Government or the DDA or the MCD. The premises is not used in any manner which is contrary to any condition imposed on the landlord as all the requirements of law and the conditions of the concerned authorities have been complied with. The NDMC or the concerned authorities on their own have never raised any objection to the user of the premises by the respondents and even after the Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 5of 37 E No. 04/12 6 05.07.2014 complaints made by the petitioner the authorities have not found anything contrary to law and have infact found everything in tact and in order as per the rules and regulations of the NDMC and the other authorities.
3.4 The respondent at no point of time had sublet, assigned, parted with the possession of the premises. Since the respondents have not sublet, assigned, parted with the possession of the premises, the question of obtaining any consent from the landlord or the petitioner who claims to the sole beneficiary of the landlord does not and cannot arise. The premises was never let out or sublet to any M/s. Twinkle Art Gallery at any point of time. Neither the respondents have allowed anyone to carry on the business from the premises in question. The premises in question has all along been used within the terms and conditions of lease and as per the provisions of law by the respondents and there has never been any subletting, parting with possession or assignment of any part of the premises at any point of time. Whatever business has or is being carried out in the premises is in partnership between the respondents only either on commission basis or otherwise.
3.5 Ever since the inception of the tenancy, M/s. Capital Refrigeration Corporation is in existence and even the father of the respondents who had initially entered into the lease deed with Dr. A.S. Duggal carried on his business from the premises in question under the name and style of M/s. Capital Refrigeration Corporation and ever since the inception of the tenancy the rent has been paid by late Shri Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 6of 37 E No. 04/12 7 05.07.2014 V.K. Gujral and the same was accepted without any objection or any demur by Dr. A.S. Duggal and after the death of Dr. A.S. Duggal by the present petitioner. Even after the dismissal of the earlier applications filed by the petitioner she has been accepting the rent paid by M/s. Capital Refrigeration Corporation which has all along been the business firm of late Shri V.K. Gujral, during his life time and upon his death of his heirs and legal representatives namely the respondents. M/s. Capital Refrigeration Corporation is a partnership concern of the respondents and said concern is working since the inception of the tenancy. There are no outsiders involved as partner or otherwise in the said M/s. Capital Refrigeration Corporation.
3.6 The application as filed by the petitioner is barred by the principles of resjudicata. The petitioner had earlier also filed two applications on similar grounds and under same sections. The application no. E143/87 was filed by the petitioner under Section 14 (1) (a) (c) (j) of the Delhi Rent Control Act and the said application was dismissed by the Ld. ARC on 25/04/1995. The petitioner had also filed an application under Section 14 (1) (b) of the Delhi Rent Control Act being application no. E389/89 and the said application was also dismissed by the Ld. ARC on 18/04/1995. The petitioner has never filed any appeal against the said orders of dismissal and accordingly the said orders of dismissal have attained finality.
3.7 There is no change of user of any kind by the respondents and the premises is being used by the respondents only for the purpose for which it was let out i.e for commercial purposes. There is Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 7of 37 E No. 04/12 8 05.07.2014 no cause of action to file the present petition because no part of the premises is being misused in any manner nor the shop is put to any use contrary to the agreed user as between late Dr. A.S. Duggal and late V.K. Gujral. No part of the premises has been sublet, assigned and possession parted with.
3.8 The premises is still used for commercial purposes and the respondents carry on their business from the said premises of selling air conditioners and parts and accessories of air conditioners and electrical stabilizers, cooking range, washing machines etc. and also of art products and handicrafts. No installation or servicing of Car and Air conditioners is done in the tenanted premises, hence the question of any sort of nuisance does not and cannot arise. The said business is being carried on by the respondents since the very inception of the tenancy and after the death of Sh. V.K. Gujral his son Vishal Gujral i.e respondent no.2 also started his business of art products and handicrafts and is doing the same in the premises in question. The petitioner had full knowledge of the same and never objected to the same as the said business is within the terms and conditions of the lease deed as entered between Dr. A.S. Duggal and Shri V.K. Gujral.
3.9 Respondents have not caused any substantial damage to the premises and the premises stands in same condition as it was let out although the respondents have from time to time got the premises white washed and repaired but the construction of the premises has not been changed or altered in any manner. No unauthorised construction has been raised at the tenanted premises. There is no Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 8of 37 E No. 04/12 9 05.07.2014 unauthorised covering of the veranda or removal of wooden front door by the respondents. It is stated that even if the respondents have removed the door and installed shutter for security and safety the same is not addition, alteration or damage to the tenanted premises. It is stated that no two walls have been constructed by respondents in the corridors. The premises is in the same condition / position as it was at the time of inception of the tenancy and no alteration and addition of any nature has been carried out in the tenanted premises. It is stated that the loft has been in existence long before and ever since the tenancy commenced.
3.10 It is stated that the monthly rent of the tenanted premises is Rs. 880/ and not Rs. 800/. It is stated that as per clause 4 (3) of the lease deed dated 05.06.1979 "the rent includes the property and/or house tax and is payable by the lessor and any rise in the rate of house tax or property tax or any new tax will also be paid by the lessor". It is stated that the site plan filed along with the petition is not the correct site plan as the portion shown in yellow in the site plan are not the additions or alteration made by the respondent. The same existed even when the premises was let out to the respondents and till date it is in the same position. It is further stated that the rent was always deposited by the respondents as the partners of M/s. Capital Refrigeration Corporation only. The rent was deposited in the bank account of the petitioner and even by filing the petition u/s. 27 DRC Act.
4. In the replication filed by the petitioner, she while Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 9of 37 E No. 04/12 10 05.07.2014 denying the allegations levelled in the reply has reiterated the facts as stated in the petition. It is stated that the petitioner has been accepted as the owner and legal heir of Dr. A.S. Duggal, her father, the original landlord and owner. After the death of her father, the petitioner is the sole and lawful owner and beneficiary of tenanted premises. She has filed the copy of the mutation certificates in her name. It is stated that after satisfying themselves of the ownership and rights of the petitioner in the tenanted premises, Late Shri V.K. Gujral, the tenant, started tendering the rent to her.
4.1 On 18/7/2000, the NDMC in its survey found that the premises were sublet. As a consequence of the subletting the Rateable Value of the tenanted premises, was changed to 1,70,700/ and the petitioner was faced with the absurd situation that the rent received was Rs. 800 (880) and the tax payable on this shop was Rs. 34140/ per annum. Further, an electricity bill dated 28/12/06 in the name of Everest Refrigeration at 43A, Khan Market was delivered to the petitioner. Since neither the petitioner, nor her late father have ever given the tenanted premises on rent to any Everest Refrigeration, the petitioner filed an RTI in the NDMC requesting the details of the electrical connection in name of Everest Refrigeration at the tenanted premises. The petitioner also informed the NDMC that she had never issued a no objection for the electrical connection in the name of the Everest Refrigeration. On the basis of the aforesaid letter, the NDMC issued a disconnection notice to Everest Refrigeration Corporation on 27/12/06.
Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 10of 37 E No. 04/12 11 05.07.2014 4.2 In response to the above notice, the Respondent no.2 vide
his letter dated 4/1/07 alleged that the 'no objection' was given by the father of the petitioner. However to the best of the petitioner's knowledge no such 'no objection' was ever given and nor has the Respondent no.2 produced the same or filed the same before the NDMC. In these circumstances, it is submitted that it is clear that the Respondent or Mr. V.K. Gujral, has sublet, parted with possession and or assigned the premises to Everest Refrigeration as far back in the 1970's.
4.3 It is submitted that the respondents had sublet, assigned, parted with the possession of the premises to Twinkle Art Gallery (TAG) and Capital Refrigeration Company and has relied upon the copy of the Agreement with Mr. Harvinder Madan, proprietor of TAG. She has further relied upon the copy of telephone bill dated 8/3/02 in the name of TAGP Harvinder Madan, the old as well as present business card of TAG, which shows that TAG is now operating from 51B, Khan Market, copies of Bills received from TAG for various framing jobs and picture frames. She has denied that whatever business has or is being carried out in the tenanted premises is in partnership between the respondents only either on commission basis or otherwise.
4.4 It is stated that the earlier petitions were dismissed due to non prosecution as the petitioner was then a resident of the United States of America and could not pursue the litigation in Delhi due to lack of finances and time. It is stated that the subletting, parting with Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 11of 37 E No. 04/12 12 05.07.2014 possession and assigning of the premises to Capital Refrigeration and Mr. Harvinder Madan/TAG was subsequent in time and the misuse of the premises continued despite notice. Moreover the unauthorized structural changes were also added upon by the respondent. It is denied that the petition is barred by the principles of resjudicata.
5 Petitioner in order to support her contentions has examined herself as PW 1 and has tendered her evidence by way of affidavit Ex. A/A and relied upon following documents:
a) Letter of Government of India dt.04.02.1987, NDMC letter dt.
03.03.94, Bill no. 23 A/78 and receipt dt. 13.09.92, receipt dt. 28.01.2013 and 18.01.2008 of NDMC as PW 1 (colly)
b) The site plan of the tenanted premises as mark A.
c) The registered lease agreement dated 5.06.1979 as Ex. PW 2.
d) MTNL telephone bill dt. 08.03.2002 in the name of M/s. Twinkle Art Gallery showing the address of tenanted premises as Ex. PW 3.
e) The Government Survey report of the year 200001 Showing M/s. Twinkle Art Gallery as tenant as mark B. f )Business card, cash memo no. 999 dt.. Nil and cash memo dt. 25.10.2000 of M/s. Twinkle Art Gallery as Ex. PW 4
g) NDMC electricity and water bill dt. 28.12.2006 as Ex. PW 5
h) Copy of agreement dt. 07.10.1998 between the respondents and M/s. Twinkle Art Gallery as mark C
i) The photographs of the tenanted premises as mark D.
j) Copies of the applications u/s. 27 DRC Act filed by M/s. Capital Refrigeration Corporation as mark E and F. Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 12of 37 E No. 04/12 13 05.07.2014
k) The NDMC Electricity and water bill and other NDMC documents pertaining to M/s. Everest Refrigeration corporation as Ex. PW 7 (colly).
l) The demand notice of house tax by NDMC as Ex. PW /8 (colly)
m) The Copy of application for supply of electricity to NDMC as mark G.
n) The Copy of certificate of electrical department of NDMC as mark H.
o) Copy of receipt dt. 31.10.91 as mark I
p) Copy of NDMC sanctioned letter dt. 09.10.91 is mark J
q) Copy of NDMC show cause notice dt. 19.03.2007 is mark K,
r) Copy of NDMC letter dt. 08.12.2006 is mark L
s) Property tax bill dt. 23.11.2007 as Ex. PW 6.
6 Respondents in order to support their contentions have examined Vishal Gujral as RW 1, Sh. Suresh Kumar Saini, Architect Valuer as RW 2, Sh. Mahavir, Clerical Assistant in House Tax Department, NDMC as RW 3, Sh. R.P. Anand, Assistant Engineer (Misuse), NDMC as RW4 , Sh. Chander Pal, Junior Engineer, Electrical Commercial, NDMC as RW 5, Sant Ram, Meter Inspector, NDMC as RW 6 and Layak Ram LDC in NDMC as RW 7.
6.1 RW 1 has tendered his evidence by way of affidavit Ex. R1 and relied upon the following documents:
a)Power of attorney as Ex. RW 1/1,
b)Partnership deed of the respondents as Ex. RW 1/2,
c)Site plan of suit property as Ex. RW 1/3, Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 13of 37 E No. 04/12 14 05.07.2014
d)Photographs of the tenanted premises as Ex. RW 1/4 to Ex. RW 1/13
e)Order of NDMC dt. 31.07.2007 as mark A, f )Order dt. 25.04.1995 in eviction petition bearing E No. 143/87 and order dt. 18.04.1995 in eviction petition bearing E No. 389/89 are Ex. PW 7/R1 and Ex. PW 8/R2 respectively.
g)Copy of NDMC notice dt. 18.10.2004 is mark B.
h)Copy of receipt dt. 15.04.2005 and 04.07.2005 issued by NDMC House Tax Department is mark C and D respectively.
i)Copy of reply dt. 05.07.2005 to the legal notice sent by petitioner is Ex RW1/14 and AD card is Ex RW1/15.
6.2 RW2 has proved the site plan of the tenanted premises as Ex. RW 1/3. RW 3 has proved the notice dated 18.10.2004 for attachment of rent issued by NDMC as RW 3/1. RW4 Sh. R.P. Anand, Assistant Engineer (Misuse), NDMC proved the copy of the response of NDMC to the report no. 85 in writ petition (civil) no. 4677 of 85 titled M.C. Mehta v. Union of India filed in Supreme Court of India as Ex. RW 4/1. RW 5 Sh Chander Pal, Junior Engineer , NDMC produced the electricity connection record in respect of tenanted premises no. 43A, Khan Market, New Delhi and deposed that the electricity connection in the tenanted premises is in the name of M/s. Everest Refrigeration since 1975. He placed on record the attested copy of K number register report as Ex. RW5/1. RW 6 Sh Sant Ram produced the record of meter k no. 69829 for the period from 10.12.2009 to 07.02.2013 in the name of M/s. Everest Refrigeration Corporation Ex. RW 6/2. He further deposed that records prior to the year 1990 have been destroyed vide Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 14of 37 E No. 04/12 15 05.07.2014 order Ex. RW 6/1. RW 7 is Layak Ram.
6.3 PE was closed on 14.09.2011 and RE was closed vide order dt. 31.01.2014.
7 It is argued by Ld. counsel for the petitioner that the portion of the tenanted premises has been let out by the respondents to Twinkle Art Gallery as is evident from the document mark C and Ex. PW 4, which have been duly proved, hence the decree be passed in favour of petitioner. It is further argued that from the bare perusal of mark C it is evident that Twinkle Art Gallery was inducted as sub tenant under the colour of Agency which is further evident from the clever drafting of the deed. It is further argued that the respondents have use the premises for the purpose other than which it was let out and has further caused substantial damage to the premises and made alterations without the consent of petitioner.
8 Per contra, it is argued by Ld counsel for respondent that mark C cannot be relied upon as it has neither been proved in evidence nor any witness i.e the actual writer of the said agreement has been examined by the petitioner. Further, even the daughter of Mr. Harvinder Madan from whom the petitioner has allegedly obtained the said agreement has been examined. It is further argued that mark C is merely a photocopy and cannot be relied upon. The said document cannot be relied upon in view of Section 91, 94, 102 , 104 and 106 of Indian Evidence Act. It is further argued that the said document mark C was not filed along with the petition or the Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 15of 37 E No. 04/12 16 05.07.2014 amended petition but at the stage of evidence along with the affidavit of PW 1. It is further argued that even for the sake of argument, if, the contents of the said document are perused, the same is merely an agreement between a principal and an agent and by no stretch of imagination can be considered as an agreement by way of which sub tenancy has been created. Further, the possession is still with the respondent and also remained with him at the time when the said agreement, if any, existed. Further, from the perusal of the said document, it is evident that the possession of the entire premises was retained and in actual possession of the respondent. It is further argued that even the site plan is merely the photocopy and the same has not been proved by the petitioner. It is further argued that no reliance can be placed on Ex. PW 4 ie the visiting card and the bills as the same are unsigned and unstamped . Further, the third bill which is of the year 2000 is in the name of the husband of petitioner, purportedly from whom she is living in judicial separation since 1994. It is further argued that there is no subletting by the respondents in favour of Twinkle Art Gallery. The respondents are working in the partnership firm under the name of Capital Refrigeration since the inception of tenancy, hence no question , if any arises in respect of sub tenancy in favour of Capital Refrigeration. It is submitted that with the passage of time, respondents have also started selling Art products in the tenanted premises under the name of Capital Art Gallery and the same cannot be termed as creation of sub tenancy. It is submitted that the premises was let out for commercial purposes and is being used for the said purpose till date and there has been no change in the user of the premises till date as the same is being used for commercial Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 16of 37 E No. 04/12 17 05.07.2014 purposes. It is submitted that the respondents have not made any alteration or additions in the tenanted premises as alleged by the petitioner and the premises is in the same condition as it was let out. However, the respondents have carried out certain renovation which is of a temporary nature without affecting the building, which has added to the value of the property and is in no way detrimental to the structure, nor the same has caused any damage to the property / tenanted premises. Both the parties have relied upon certain judgments in support of their contentions.
9 The present petition has been filed u/s. 14 (1) (b) (c) (j) and (k) of the Act. The foremost thing which is required to be considered in every eviction petition is the relationship of landlord and tenant between the parties. There is no denial of the fact that respondents are the tenants in the tenanted premises. The respondents have stated that they are paying rent to the petitioner as she represented herself to be the legal heir of Sh A S Duggal, without admitting her as the landlord. The respondents cannot be allowed to take this plea at this stage, when admittedly they are paying rent to the petitioner since the date when it was demanded by her from them and that they are also filing the petition for deposit of rent u/s. 27 DRC Act against her. Under the Act, landlord means a person who for the time being is receiving, or is entitled to receive the rent. The landlord is not supposed to prove absolute ownership. She is only to prove that she is something more than tenant and is /was collecting rent not for someone else but for herself. Admittedly, the respondents are paying rent to the petitioner after the death of Sh. A S Duggal. Now the Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 17of 37 E No. 04/12 18 05.07.2014 respondents cannot be allowed to dispute the relationship with the petitioner when they are admittedly paying rent to her, without any challenge or otherwise in this respect. Further, it is not the plea of respondents that petitioner is receiving rent on behalf of someone else and not for herself. In the present petition the question of title is not to be decided and the only question which is for consideration is whether there is relationship of landlord and tenant between the petitioner and the respondents, which has been sufficiently established by the petitioner. Hence, there is relationship of landlord and tenant between the petitioner and respondents. Since the present eviction petition has been filed under various provisions of the rent Act, all of them shall be discussed separately as follows.
Section 14 (1) (b) 10 Under section 14 (1) (b) of the Act, the landlord is entitled for the order of eviction, if, the tenant has sublet , assigned or otherwise parted with possession of the whole or any part of the premises without obtaining the consent in writing of the landlord. Thus the provision has three facets, firstly subletting, secondly assignment and thirdly parted with possession. In case of subletting, there has to be transfer of interest in favour of the sub tenant for valuable consideration ie rent and the right to possession against the tenant . In assignment, the tenant has to divest himself of all the rights that he has as a tenant. While the expression parting with possession postulates parting with legal possession i.e giving possession to persons other than those to whom possession has been assigned by Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 18of 37 E No. 04/12 19 05.07.2014 the lease.
10.1 In Narayan Ratan v. India Mill Stores 1977 RCR, it was held by Hon'ble M.P. High Court that:
"the question whether there is unlawful subletting is, in most cases, a matter of inference to be drawn from the facts of each cases. The initial onus of proving unlawful subletting, in the first instance lies upon the plaintiff. Subtenancy can hardly be proved by direct evidence. All that the plaintiff can do is to place on record certain circumstances from which an inference has to be drawn. When such circumstances are proved, prima facie, the burden placed on the plaintiff is discharged, and the onus shifts on the defendant not to prove any negative fact but establish a positive aspect about the capacity in which the alleged subtenant is occupying the premises and that he has not parted with the whole or a part of the tenanted accommodation. It follows that the pleading of the defendant must be clear and explicit as the facts, in which a third person has been inducted into the whole or any part of the premises are within his knowledge. The defendant must, therefore, specifically plead all the facts necessary to disprove the inference of subletting".
10.2 In Sohan Lal Vs. Sripal & Ors. , 48 (1992) DLT 65, it was held that:
"in sub letting there should exist the relationship of landlord and tenant as between the tenant and his sub tenant and the instance of letting or the tenancy must be found namely the transfer of an interest in the estate, demand of rent and the right to possession against the tenant in respect of the premises sublet. In assignment the tenant has to divest himself of all the rights that he has as a tenant. The expression parting with possession undoubtedly postulates parting with legal possession. Parting with possession means giving possession to persons other than those to whom possession has been assigned by the lease and the parting Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 19of 37 E No. 04/12 20 05.07.2014 with possession must have been by the tenant. The mere user by other person is not parting with possession so long as the tenant retains the legal possession himself. In other words, there must be vesting of the possession by the tenant in other person by divesting himself not only of physical possession but also of right to possession. The divestment or abandonment of right to possession is necessary in order to invoke the clause of parting with possession."
10.3 In Shri Gurdial Singh Vs. Shri Brij Kishore & Ors 1970 RCJ1001 it has been held that:
"what is to be seen in each case is whether the tenant has totally effaced himself and whether the possession of the third person is exclusively in his own right and to the ouster of the lessee. Though a person may be absent from the premises at a time yet if he has an intention to return to them, it may fairly be said that he is still actually in possession and , therefore, entitled to be protected. If a lessee retains legal possession at all times he does not commit a breach of the covenant against parting with the possession by allowing other people to use the premises. A covenant against the parting with the possession is not broken by sharing the possession with another. It is quite possible in law that a man can permit anyone to occupy and at the same time remain in possession, where the tenant remained in control of each of the companies and the facts shows that he was really and easily carrying on the business of others at his own premises which remained his from first to last, then he cannot be said to have parted with possession. The mere act of letting other persons into the possession by the tenant and permit them to use the premises for their own purpose is not , so long as he retains the legal possession himself, a breach of the covenant."
10.4 In Stening Vs. Abraham (1931) 1 CR 470 it was observed that:
"a lessee cannot be said to part with the Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 20of 37 E No. 04/12 21 05.07.2014 possession of any part of the premises unless his agreement with the licensee wholly ousts him from the legal possession of that part. If there is anything in the nature of a right to concurrent user, there is no parting with possession. Retention of a key may be negative indicium but nothing short of a complete exclusion of the grantor or licensor from the legal possession for all purposes amounts to parting with possession. The fact that the agreement is in form of a licence is immaterial as a licence may give the licensee so exclusive a right to the legal possession to a part with possession. It is not the law that no sooner does any as to amount person other than a lessor occupy a premises it must be held that the tenant has parted with the possession of the demised premises . To my mind it is all a question of fact."
10.5 In Shalimar Tar Products Ltd. Vs. H C Sharma, (1998) 1 SCC 70 the Apex Court had noted that:
"to constitute a subletting, there must be a parting of legal possession ie possession with the right to include and also right to exclude other and whether in a particular case, there was sub letting or not was a question of fact. To establish this ground, the landlord must show that the tenant has completely divested himself from the suit premises and has lost control over it;
10.6 In Jagan Nath vs Chander Bhan & Ors, (1988) 3 SCC 57, having interpreted the provisions of clause (b) of proviso to sub section (1) of section 14 of Act 59 of 1958 it has been held by the Hon'ble Supreme Court as follows:
"The parting with possession must be by the tenant. Parting with possession means giving possession to persons other than those to whom possession had been given by the lease. User by other person is not parting with possession so long as the tenant retains the legal possession himself. There must be vesting of possession by the tenant in another person by divesting himself not only Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 21of 37 E No. 04/12 22 05.07.2014 of physical possession but also of the right to possession.
10.7 In Hazari Lal and Ram Babu V. Shri Gian Ram 1972 RCR 74 it was held that:
"9..........Clause (b) to the proviso to subsection (1) of Section 14 of the Rent Act uses three expressions, namely, "sublet", "assigned and otherwise parted with the possession " of the whole or any part of the premises without obtaining the consent in writing of the landlord. These three expressions deal with three different concepts and apply to different circumstances. In subletting there should exist the relationship of landlord and tenant as between the tenant and his subtenant and all the incidents of letting or tenancy have to be found, namely, the transfer of an interest in the estate, payment of rent and the right of possession against the tenant in respect of the premises sublet. In assignment, the tenant has to divest himself of all the rights that he has as a tenant. The expression "parted with the possession" undoubtedly postulates as has been held in the cases mentioned above the parting with legal possession. As we understand it, the lease has given parting with possession means giving possession to persons other than those whom possession has been given in lease and "the parting with possession" must have been by the tenant. The mere user by the other persons 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 also of the right to possession. So long as the tenant retains the right to claim possession from his guest who does not pay him any rent or other consideration, it would not be possible to say that the tenant has parted with possession even though for the duration of his stay, the guest has been given the exclusive use of the whole or a part of the tenancy premises. If the tenant has a right to disturb the possession of his guest at any time, he can be said to have parted with the possession of the tenancy premises. The mere fact that the tenant himself is not in physical possession of the tenancy premises for any period of Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 22of 37 E No. 04/12 23 05.07.2014 time would not amount to parting with the possession so long as, during his absence, the tenant has a right to return to the premises and be in possession thereof. A more privilege or licence to use the whole or a part of the demised premises which privilege or licence can be terminated at the sweet will and pleasure of the tenant at any time would not amount to "parting with possession ." The divestment or abandonment of the right to possession is necessary in order to invoke the clause of parting with possession".
10.8 Thus the onus to prove subletting is on the landlord. If the landlord prima facie shows that the occupant who was in exclusive possession of the premises was let out for valuable consideration, it would then be for the tenant to rebut the evidence. Thus, in the case of subletting, the onus lying on the landlord would stand discharged by adducing prima facie proof of the fact that the alleged subtenant was in exclusive possession of the premises or, to borrow the language of Section 105 of the Transfer of Property Act, was holding right to enjoy such property. A presumption of subletting may then be raised and would amount to proof unless rebutted [(reliance placed on Krishnawati v. Hans Raj [(1974) 1 SCC 289] reiterating the view taken in Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh [(1968) 2 SCR 548].
11 Now coming to the aspect as to whether the tenanted premises have been sublet, assigned or parted with possession by the respondents as alleged by the petitioner. Petitioner in the petition has alleged that the respondents have sublet the tenanted premises to Everest Refrigeration, Twinkle Art Gallery and also to Capital Refrigeration Ltd. Thus according to the petitioner, the respondents Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 23of 37 E No. 04/12 24 05.07.2014 have sublet the tenanted premises to these three firms.
12 In order to prove subletting, assignment and parting with possession in favour of Everest Refrigeration, petitioner has relied upon the electricity bill in the name of Everest Refrigeration bearing the address of the tenanted premises. During arguments the counsel for respondents relied upon the testimony of RW 5 and submitted that since the connection in the name of Everest Refrigeration is since 1975, even prior to tenancy in favour of respondents or their predecessor in interest, hence no case of subletting is made out on this count. RW 5 has deposed that the electricity connection in respect of the tenanted premises is in the name of M/s. Everest Refrigeration since 1975. There is no dispute to the fact that the electricity connection in the tenanted premises is in the name of M/s. Everest Refrigeration. Admittedly, the predecessor in interest of the respondents was inducted as tenant in the premises vide lease deed dt. 05.06.1979. PW 1 during her cross examination deposed that she does not know whether prior to the execution of the lease dt. 05.06.1979, the premises had electricity connection in the name of M/s. Everest Refrigeration. No other evidence, except the electricity bill has been brought on record by petitioner to show that the premises have been sublet by the respondents to Everest Refrigeration when admittedly the respondents or their predecessor in interest was inducted as tenanted vide registered lease agreement dt. 05.06.1979. In the absence of any cogent evidence, it cannot be said that the respondents have sublet , assigned or parted with possession in favour of Everest Refrigeration, hence the plea of petitioner in this regard is dismissed.
Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 24of 37 E No. 04/12 25 05.07.2014 13 Now coming to the aspect as to whether the respondents
have sub let the tenanted premises in favour of M/s. Capital Refrigeration. The respondents have stated that M/s. Capital Refrigeration is being run in the tenanted premises since beginning . Earlier the business was run by Sh. V K Gujral and after his death, the same is being run by his son. PW 1 during her cross examination admitted that the Refrigeration work was done by Mr. V K Gujral and after death of Mr. V K Gujral, the work of refrigeration continued in the tenanted premises. She further admitted that after the demise of Mr. V K Gujral, the refrigeration business continued to be carried in the shop by his son. She admitted that M/s. Capital Refrigeration was being run by Mr. V K Gujral and after his demise, the same is being run by Mr. Vishal Gujral, his son. From these admissions, it is evident that the business in the name of M/s. Capital Refrigeration was being run from the beginning and there has been no subletting by respondents. PW 1 has admitted that M/s. Capital Refrigeration was being run by Mr. V K Gujral and after his demise by his legal heirs, hence there is no question of subletting by the respondents in favour of M/s. Capital Refrigeration. The plea of petitioner on this count is also dismissed accordingly.
14 Now what has to be determined is whether the tenanted premises have been sub let by the respondents to Twinkle Art Gallery or not. PW 1 during her cross examination has admitted that respondents are still in possession of the tenanted premises and the business of M/s. Capital Refrigeration along with Capital Art Gallery is still being run in the tenanted premises.
Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 25of 37 E No. 04/12 26 05.07.2014 14.1 Petitioner in order to show that the respondents have sub
let the premises to Twinkle Art Gallary has placed on record three documents ie visiting cards, cash memo Ex. PW 4 (colly) and one agreement mark C. Except these three documents no other document has been placed on record by petitioner. All these documents have been challenged by the respondents and it is argued by Ld. counsel for respondents that mark C cannot be relied upon as it is merely a photocopy and further no other witness except the petitioner herself has been examined to prove the authenticity of the said document. As regards the visiting card and cash memos are concerned, it is argued that the same are forged and fabricated. Let the said arguments be analyzed in view of the documents relied upon by the petitioner.
14.2 PW 1 in her affidavit Ex. PW A/A, in para 5 has stated that as per the Government Survey report, M/s. Twinkle Art Gallery is the tenant in the tenanted premises and she has relied upon the business card, cash memo and agreement dt. 07.10.1998 to show that the premises have been sublet to M/s. Twinkle Art Gallery. The Survey report of the Government is mark B. In the report in the column "tenants name", it is stated Capital Refrigeration Corporation and Art N Glass Gallery. In the said report it is no where written Twinkle Art Gallery. It is simply written Art N Glass Gallery. Respondents have taken the plea that in addition to the work of refrigeration, they are also running an Art Gallery under the name and style of Capital Art Gallery. From the said survey report, it is not proved or can be comprehended that any firm by the name of Twinkle Art Gallery is functioning in the premises. Further, no official who has prepared the Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 26of 37 E No. 04/12 27 05.07.2014 said report has been examined by the petitioner.
14.3 Now coming to mark C ie the agreement. The said document is between one Mr. Harvinder Madan and Sheila Gujral ie one of the respondents. Respondents have denied execution of any such document. Admittedly, the said document is merely a photocopy. Petitioner in order to prove the said document has examined herself. She during her cross examination deposed that the said document Mark C came into her possession from the daughter of Sh. Harvinder Madan. She has asked for the same from her. The petitioner has neither examined the purported author of the mark C i.e Harvinder Madan nor the source i.e his daughter from whom she had allegedly received the said document. The petitioner is neither the author of the said document, nor the said document was prepared in her presence.
14.3 (a) In Madholal Sindhu Vs. Asian Assu. Co. Ltd. (1945) 56 Bom. LR. 147 it has been held that:
"a document could not be admitted in evidence without calling the signatory or the writer thereof, if what was sought to be proved was the contents of that document."
14.3(b) In Mobarik Ali Vs. State of Bombay (1957) 61 Bom. LR, 58 at p. 6667, SC the Supreme Court of India held that :
"proof of the authorship of a document is proof of a fact, like that of any other fact, and the evidence relating thereto may be direct or circumstantial . It was further observed that proof of the handwriting of the contents, or of the signature, by one of the modes provided in Section 45 and 47 of the Evidence Act was not the only mode, and that a document may also be proved by the internal evidence Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 27of 37 E No. 04/12 28 05.07.2014 afforded by the contents of the document itself. The last mode of proof would be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the court.
14.3(c) In H. Siddiqui (Dead) by Lrs. Vs. A. Ramalingam (2011) 4 SCC 240, it was held that :
"the provision U/s. 65(a) of Indian Evidence Act permits the parties to adduce secondary evidence, yet such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the nonproduction of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It has been further held that mere admission of a document in evidence does not amount to its proof. Therefore, it is the obligation of the court to decide the question of admissibility of a document in secondary evidence before making endorsement thereon."
14.3(d) J. Yashod Vs. K. Shobha Rani (2007) 5 SCC 730 it has been held that :
"It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasized the exceptions to the rule requiring primary evidence are designed to provide relief in case where a party is genuinely unable to produce the original through no fault of that party."
Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 28of 37 E No. 04/12 29 05.07.2014 14.4 In the present case, the petitioner has filed the mark C at the stage of evidence. The said document does not form the part of pleadings. Further, mark C is merely a photocopy which according to petitioner has been received by her from the daughter of one of the signatory to the said agreement ie. Sh Harvinder Madan. The document mark C cannot be relied upon as the same has not been proved by the petitioner as she has neither called any of the signatory or the writer thereof or the purported link in the chain of correspondence to prove the authenticity and the veracity of the said document. Further, there is no averment that the photocopy mark C is the true copy of the original document. Further, no liberty has been taken at any stage to lead secondary evidence in respect of mark C. Petitioner has not lead any foundational evidence that mark C is in fact a true copy of the original. Hence, no reliance can be placed on the said document and it cannot be admitted in evidence.
14.5 Now coming to the cash memos Ex. PW /4, one is undated while the other is dated 25.10.2000 in the name of one Umang Puri. PW 1 during her cross examination deposed that in the year 2000 her husband went to the shop and purchased some goods as reflected in Ex. PW/4 . Thus the said bills were nor procured by the petitioner herself but were handed over to her by her husband. She has not examined her husband to prove that he had visited the shop and got received the bills in lieu of purchase of some articles. During arguments the counsel for respondents have relied upon the petition / affidavit filed by the petitioner in the eviction petition u/s. 14 (1) (e) Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 29of 37 E No. 04/12 30 05.07.2014 DRC Act, wherein she has stated that she is living separately from her husband since 1994. PW 1 during her cross examination admitted that in the photographs mark B there is no signage board of Twinkle Art Gallery. No other document or any other witness has been examined by the petitioner to prove her contention that the tenanted premises have been sub let by the respondents to Twinkle Art Gallery.
14.6 Thus from the documents relied upon by the petitioner it is not proved that premises have been sublet, assigned or partied with possession by respondent in favour of Twinkle Art Gallery. The document mark C cannot be relied upon and cash memos does not repose any confidence. Thus the petitioner has failed to discharge the initial onus of proving unlawful subletting , assignment or parting with the possession by the respondents in favour of Twinkle Art Gallery also. Hence on the basis of above discussion, petitioner has miserably failed to prove that the tenanted premises have been sublet, assigned or parted with possession by the respondents. The prayer of the petitioner for the relief under section 14 (1) (b) is accordingly dismissed.
Section 14(1) (c) 15 Under Section 14(1)(c) , the tenant is liable for eviction if he has used the premises for a purpose other than that for which they were let out without obtaining the consent of the landlord.
15.1 Ex. PW 2 is the agreement of lease dt. 05.06.1979. The said Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 30of 37 E No. 04/12 31 05.07.2014 document is an admitted document. In clause 1 of the said document it is clearly stipulated that the tenanted premises have been rented out to the lessee for use as showroom and office. It is not disputed that the tenanted premises was let out for the purpose of showroom and office. PW 1 during her cross examination admitted that the business of M/s. Capital Refrigeration was being run by Mr. V K Gujral and after his demise the same is being run by his son. She further deposed that presently the business of Capital Art Gallery is being run from the tenanted premises. Even from the photographs placed on record by both the parties, it is visible that the tenanted premises is being run for the purpose of running showroom and office. The petitioner in the entire petition or in her affidavit Ex. PW A/A has not categorically specified as to how the premises are being used by the respondent for the purpose other than that for which they were let out. In the absence of any cogent evidence and on the basis of above discussion, it is evident that the tenanted premises are being used for showroom and office purpose and not contrary to the purpose for which it was let out. Hence, the plea of petitioner for the relief U/s. 14 (1) (c) is accordingly dismissed.
Section 14(1) (j) & (k) 16 Under section 14 (1) (j) & (k), the tenant is liable for the order of eviction if he has caused or permitted to be caused substantial damage or dealt with the premises in a manner contrary to any condition imposed on the landlord by the government, DDA , MCD or any other authority .
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16.1 In Om Pal v. Anand Swarup, (1988) 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 utilization 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".
16.2 In Savitri Devi v. U.S. Bajpai and Another, AIR 1956 Nagpur 60, it has been held that :
"the tenant had 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.
16.3 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".
16.4 Punjab and Haryana High Court in Madan Lal Saggi and Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 32of 37 E No. 04/12 33 05.07.2014 Another v. British Motor Car Company, 1984(2) RCR 572, 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 Veranda 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 held.
16.5 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".
16.6 In Vipin Kumar v. Roshan Lal Anand and Others, (1993) 2 SCC 614, 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 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 Veranda is not a material alteration".
Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 33of 37 E No. 04/12 34 05.07.2014 17 Thus the onus of proving that the tenant has caused substantial damage to the demised premise is upon the landlord and he must prove that addition and alteration in the tenanted premises is carried out by the tenant without his consent. 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. 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. 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. A temporary alteration or addition which can be easily repaired without causing damage to the structure is not substantial damage to the tenancy premises. 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. 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.
18 PW 1 in her affidavit and her petition has alleged that the respondents have carried out unauthorized additions and alterations in the tenanted premises without obtaining her oral or written consent. She has deposed that the respondents have unauthorizedly encroached the veranda by covering it. They have unauthorizedly Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 34of 37 E No. 04/12 35 05.07.2014 made big holes in the weight bearing walls and built unauthorized loft. They have constructed two walls in the corridor. They have unauthorizedly removed wooden front door and have put up the shutter between the walls enclosing the veranda. In order to show the alleged unauthorized constructions, she has placed on record the site plan mark A. PW 1 during her cross examination admitted that the shop comprises of Veranda. The area of the shop is written in the lease agreement Ex. PW2. When she was put the specific question as to whether any permanent construction has been done in the premises from 1987 to 2006, she duly replied "no comments" but volunteered that there is a loft and certain structure had been put out side the shop which has been removed by NDMC. She further stated that by raising construction more space has been added on the side of the premises, but did not specifically deposed on which side and what sort of construction. She during her cross examination , further deposed that respondents have built a loft which is against the rules of NDMC and heavy machinery has been placed in the shop. She admitted that she has not received any notice from NDMC or DDA or any other authority in respect of unauthorized construction. She further deposed that NDMC has taken action for unauthorized construction and removed the unauthorized construction in the tenanted premises. She stated that she does not recall when she noticed the unauthorized construction being brought up on the tenanted premises. She admitted that the veranda of property no. 43 B is covered but the same has been done unauthorizedly by the tenant. She denied the suggestion that when the tenanted premises were leased out in the year 1979 the veranda was already covered. She admitted that she Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 35of 37 E No. 04/12 36 05.07.2014 owns a flat above tenanted premises and there is a covered veranda. At this stage, the counsel for respondents was critical about the fact that when the veranda of the flat above the tenanted premises is covered, it automatically means that the veranda which forms part of the tenanted premises is also covered. It is argued that the respondents have not covered the veranda but the roof of the veranda of the flat above the tenanted premises, is the roof to the veranda forming part of the tenanted premises.
19 Respondents have placed on record the site plan Ex. RW 1/3 and have further examined RW 2 Suresh Kumar Saini, Architect Valuer, who has also proved the site plan Ex. RW 1/3. Petitioner has merely placed on record the site plan mark A and has not examined any other independent witness to prove the same. The area of the tenanted premises is not disputed. From the photographs placed on record by both the parties, it cannot be said that the respondents have carried out any structural changes in the tenanted premises except that they have installed movable window showcases and shutters and further renovated the shop. The window showcases are only temporary structure which have not altered or demolished any part of the tenanted premises. Further putting up shutters for the purpose of security cannot be termed as material alteration. There is no denial of the fact that the veranda forms part of the tenanted premises. As per PW 1 the veranda of the flat above the tenanted premises is covered. No photographs have been placed on record by the petitioner to show that there is separate roof to the veranda of the tenanted premises than that of the flat above the tenanted premises. She has not even Joban Kaur Puri Vs. Sheila Gujral & Ors. Page 36of 37 E No. 04/12 37 05.07.2014 examined any other witness in this regard. Minor renovation which does not in any way impair the value and utility of the premises, cannot be termed as structural alteration or addition. Petitioner has failed to prove that the respondents have caused or permitted to be caused substantial damage to the tenanted premises or that they have dealt with the premises in a manner contrary to the condition imposed on her by the government or any other agency . The petition of the petitioner even fails on this count.
20 In the given facts and circumstances, on the basis of above discussion and in the absence of any cogent evident, the petition u/s. 14 (1) (b) (c) (j) and (k) filed by the petitioner against the respondents is hereby dismissed. No order as to costs.
File be consigned to record room.
ANNOUNCED IN OPEN ( KIRAN GUPTA )
COURT ON 05.07.2014 SCJCUMRENT CONTROLLER
PATIALA HOUSE COURTS:NEW DELHI
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