Delhi District Court
(Through Their Poa Holder Balvinder ... vs Gobind Lal (Since Deceased Through Lrs) on 12 December, 2018
-1-
IN THE COURT OF SH. AJAY NAGAR, COMMERCIAL CIVIL
JUDGE-CUM-ADDITIONAL RENT CONTROLLER (WEST),
TIS HAZARI COURTS, DELHI.
ARC No: 25272/2016
Sh. Balbir Singh Kohli (Now deceased)
S/o Late Sh. Lakhmir Singh Kohli,
R/o 2596, 2nd floor, Hudson Lane,
G.T.B. Nagar, Delhi-110009.
Through his Lrs
i) Ms. Charanjit Kaur Kohli
W/o Late Sh. Balbir Singh Kohli
R/o 2596, 2nd floor, Hudson Lane,
G.T.B. Nagar, Kingsway Camp,
Delhi-110009.
ii) Mrs. Jagmeet Kaur Budhiraja,
D/o Late Sh. Balbir Singh Kohli
W/o Sardar Amarpreet Singh Budhiraja,
C/o 2596, 2nd floor, Hudson Lane,
G.T.B. Nagar, Kingsway Camp,
Delhi-110009.
(Through their POA holder Balvinder Singh Kohli
& Jasvinder Singh Kohli)
iii) Sh. Balvinder Singh Kohli
S/o Late Sh. Balbir Singh Kohli
R/o 2596, 2nd floor, Hudson Lane,
G.T.B. Nagar, Kingsway Camp,
Delhi-110009.
iv) Sh. Jasvinder Singh Kohli
S/o Late Sh. Balbir Singh Kohli
R/o 2596, 2nd floor, Hudson Lane,
G.T.B. Nagar, Kingsway Camp,
Delhi-110009.
....Petitioners
ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs)
-2-
VERSUS
Sh. Gobind Lal (Now deceased)
Through his Lrs
i) Smt. Lalita
W/o Late Sh. Gobind Lal
Shop No. 4, M/s Kaka Standard Sweet,
28/1, Double Storey, Jail Road,
Ashok Nagar, Delhi-110018.
ii) Smt. Suman Verma (Now deceased)
W/o Late Sh. Raj Kumar Verma
D/o Late Smt. Chander Kanta
R/o B-93, 1st Floor, Ganesh Nagar,
P.O. Tilak Nagar, New Delhi-110018.
Through her Legal Heir
Ms. Niharika Verma
R/o B-93, 1st Floor, Ganesh Nagar,
P.O. Tilak Nagar, New Delhi-110018.
.... Respondents
Date of Filing : 22.12.2005
Date of Judgment : 12.12.2018
JUDGMENT
1. Brief facts of the present case are that on 22.12.2005, the petitioner filed a petition Under Section 14 (1) (a), (b),(c), (j) &
(k) of the Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act") praying to this court to pass an eviction order in favour of the petitioner and against respondent in respect of Shop No. 4 of property no.28/1, Ashok Nagar, Jail Road, Delhi as shown in red in the site plan annexed with the petition. (hereinafter referred to as "tenanted premises").
ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -3-
2. As per the claim of the petitioner the tenanted premises was given to Shri Kishan Lal and Sh. Shyam Lal vide written agreement dated 16.05.1984 for non-residential purposes and after their death, the present tenant was inducted. That initially the rate of rent was Rs.350/- p.m. but it was increased to Rs.511/- p.m. w.e.f. 30.12.1997. That the rent agreement was executed with the respondent's brother to run the sweet shop. That the tenant had lastly paid the rent for the tenancy upto 14.11.1998 vide receipt no.35 amounting to Rs.3,500/-. That the respondent has failed to pay the enhanced rate @ Rs.511/- p.m. as it was increased vide legal notice dated 30.12.1997 till date. He is in arrears of rent w.e.f. 15.11.1998 to 14.12.2005. That the petitioner sent a legal demand notice dated 30.12.1997 and 02.09.2005. That respondent has failed to pay or tender the arrears of rent. That the petitioner issued several legal notice to the respondent for demanding rent but he never paid the rent . However, in the month of September, 2005 the petitioner again sent a legal notice dated 02.09.2005 but the respondent sent the incomplete rent amount Rs.12,600/- vide pay order which was returned by the petitioner as the entire arrear of rent was not sent.
That the premises were sub-let by the respondent to one Sh. Ahmad Ali in the year 1999 for running the business of Shoes sales and after him it has further been sub-let to Sh. Charanjit Gandhi for running ready made garments business. That in year 2000, the respondent started running his business of readymade garments contrary to the agreement to run the sweet shop. That respondent has violated the terms of ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -4- agreement and inducted sub-tenants without the permission of the landlord.
That as per rent agreement dated 16.05.1984, tenanted premises was let out to run the sweet shop but on the contrary he started using the tenanted premises for running readymade garments.
That the respondent has damaged the entire flooring of the shop and also covered the sewer line by putting the permanent marble stones over the sewer line provided by the MCD and has misused the waterline by supplying water to the buyers. That the respondent has damaged the complete fabric of the shop by fixing 'bhatti' in the backroom.
That the respondent has also used the tenanted premises against the building by laws as he has extended his shop on road side on the MCD Lane and therefore violating the conditions imposed by the MCD. Lastly, the petitioner prays to the court to pass an eviction order against the respondent.
3. On the other hand, written statement was filed by the respondent inter-alia stating that there is no relationship of landlord and tenant between the parties. That no legal notice as alleged by the petitioner has been served. That Will has not been proved as per law. That petitioner is not the landlord of the respondent and the premises was let out by Smt. Prem Kaur who was receiving the rent and no intimation/death of Smt. Prem Kaur was given to the respondent and the respondent never attorned himself as tenant under the petition. That the respondent is the tenant in the tenanted premises and the ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -5- monthly rent of tenanted premises is Rs.350/- and the respondent has paid rent of the tenanted premises even after 30.12.1997 which was accepted by his landlady Smt. Prem Kaur against proper rent receipts. That no rent agreement was executed between the parties as alleged by petitioners. That the respondent tendered rent for the legally recoverable period to the petitioner on 07.11.2005 without prejudice to the rights but the same was not accepted by him. It is denied that the notice dated 02.09.2005 was received from the petitioner. That the petitioner sent carbon copy of the notice dated 17.08.2004 which was received on 04/05.09.2006 but the petitioner had no right to give such notice. Secondly, it was invalid and illegal. However, the respondent tendered rent on 07.11.2005 without prejudice to his rights and without admitting him as a landlord but the same was returned by him.
That the tenanted premises has been in exclusive occupation and possession of the respondent and it was never sub-let or parted with its possession to anyone including alleged Sh. Ahmad Ali or Sh. Charanjit Gandhi. That it is denied that the respondent sub-let the premises to the alleged Ahmad Ali in the year 1999 or Sh. Charanjit Gandhi and Sh. Sudhir Sharma and others for running the alleged business.
That it is denied that the tenanted premises was let out to him for running a sweet shop. That the tenanted premises was commercial and it was not for any specific purpose. That the respondent was let out for carrying on his business activity and it is being used for commercial purposes only.
It is denied by the respondent that he has damaged the ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -6- flooring of the shop or covered the sewer line as alleged or he has misused the water facility. That alleged grounds are not available to the petitioner as the same fall within the domain of the local authority. It is also denied that the respondent has damaged the complete fabric of the shop by fixing 'bhatti' in the back room and thereby destroyed the entire fabric of the shop. That no such 'bhatti' exist in any portion of tenanted premises and the respondent has no concern with the use of shop by the previous tenant.
It is denied that respondent has used the tenanted premises against the building by laws in view of his alleged extension of shop. That there is no extension of the shop and the shop still exist in the same condition as it was let out to the respondent with exception to keep the same in tenantable repairs which landlady failed.
4. Thereafter the petitioner filed the replication reiterating and reasserting the facts as stated in the petition.
5. Thereafter evidence was led by the petitioner as well as by the respondent.
6. I have heard the arguments at length advanced by Ld. Counsel for the petitioner as well as respondent and I have also gone through the written submissions and case law relied upon.
7. Section 14 (1) (a) DRC Act:-
It is expedient to reproduce the relevant provision of Delhi ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -7- Rent Control Act so that position may be crystal clear:-
"Section-14. Protection of tenant against eviction- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by court or any controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, make an order for recovery of possession of the premises on one or more of the following grounds only, namely:-
(a) that the tenant has neither paid nor tendered the whole arrears of the rent legally recoverable from him within two months of the day on which a notice of demand for the arrears of rent has been served of him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882 (4 of 1882)."
As such, the following are the ingredients of section 14 (1) proviso (a):-
(i) There should be a relationship of landlord and tenant between the parties.
(ii) There should be a non-payment or tendering of whole arrears of legally recoverable rent within two months of service of legal notice upon the respondent given by the petitioner.
8. Let us discuss the ingredients of Sec. 14(1)(a) D.R.C. Act:-
9. It is expedient to reproduce the case law which are as under:-
ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -8- In case titled as Jiwan Lal Vs. Gurdial Kaur & Ors. 1995 RLR 162 a Bench of Hon'ble High Court of Delhi while dealing with the concept of ownership in a pending eviction petition had noted as follows:
"There is a tendency on the part of tenants to deny ownership in cases. To test the substance of such a plea on the part of the tenants the Courts have insisted that they should state who else is the owner of the premises if not the petitioner. In the present case it is not said as to who else is the owner. Further these cases are not title cases involving disputes of title to the property. Ownership is not to be proved in absolute terms. The respondent does not claim the owner of the premises."
Further, in the case titled as Smt. Shanti Sharma & Ors. Vs Smt Ved Prabha & ors 1987 AIR 2028, the Hon'ble Supreme Court observed :-
"That the meaning of term 'owner' is vis a vis the tenant i.e. the owner should be something more than the tenant."
(i). RELATIONSHIP OF LANDLORD AND TENANT
BETWEEN THE PARTIES:-
10. Perusal of record shows that the petitioner has claimed himself the landlord of the tenanted premises. On the other hand, the respondent has disputed the relationship of landlord and tenant between the parties.
I have carefully and minutely gone through the record which shows that the respondent has claimed that Smt. Prem Kaur is the landlady of the tenanted premises and not the petitioner and the respondent has also admitted that he was let ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -9- out by Smt. Prem Kaur. As such, the relationship of landlord and tenant is admitted by the respondent between Smt. Prem Kaur and the respondent but not between the petitioner and respondent.
Perusal of record shows that the petitioner has disputed the Will on the ground that it is not proved as per law. Perusal of record shows that on 26.09.2018 while hearing the arguments on Order U/S 15(1) of DRC Act Ld. Counsel for the respondent admitted the ownership and landlordship of the petitioner in the present case and thereafter an order U/S 15(1) of DRC Act was passed accordingly. It is well settled proposition of law that the admitted facts need not to be proved.
As such, in view of discussion and material on record, it is proved that there exist relationship of landlord and tenant between the petitioner and respondent.
(ii) There should be a non-payment or tendering of whole arrears of legally recoverable rent within two months of service of legal notice upon the respondent given by the petitioner.
Service of Legal Demand Notice:-
11. Perusal of Section 14 (1) (a) DRC Act clearly shows that before initiating the eviction proceeding before the Rent Controller under DRC Act, the landlord has to serve the legal notice demanding the payment of arrears of rent. And if the tenant does not pay or tender the rent within two months of ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -10- service of such notice, the landlord becomes entitled to file eviction proceeding under section 14 (1) (a) of D.R.C Act.
12. It is pertinent to reproduce the section 27 of General clauses Act which is as under :-
Section-27--Meaning of service by post--where any central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
In the case titled as K. Bhaskaran vs sankaran vaidhyan Balan 1999 A.I.R SC 3762, the Hon'ble supreme court observed :-
"The principle incorporated in section 27 can profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service."
13. Perusal of record shows that the petitioner has claimed that he sent a legal demand notice dated 30.12.1997 and 02.09.2005. That respondent has failed to pay or tender the arrears of rent. That the petitioner issued several legal notice to the respondent for demanding rent but he never paid the rent.
However, in the month of September, 2005 the petitioner again sent a legal notice dated 02.09.2005 but the respondent sent the incomplete rent amount to Rs.12,600/- vide pay order which ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -11- was returned by the petitioner as the entire arrear of rent was not sent. Perusal of record shows that the petitioner has claimed that he has given the legal demand notice dated 02.09.2005 but the respondent failed to pay or tender the entire arrears of rent.
On the other hand, respondent has claimed that no such legal notice was served upon him. Perusal of record also shows that the respondent has claimed that he tendered rent for the legally recoverable period to the petitioner on 07.11.2005 without prejudice to the rights but the same was not accepted by him. It is denied that the notice dated 02.09.2005 was received from the petitioner. That the petitioner sent carbon copy of the notice dated 17.08.2004 which was received on 04/05.09.2006 but the petitioner had no right to give such notice. Secondly, it was invalid and illegal. However, the respondent tendered rent on 07.11.2005 without prejudice to his rights and without admitting him as a landlord but the same was returned by him.
I have carefully and minutely gone through the record and testimony of all the witnesses which shows that the respondent has disputed the service of legal notice dated 02.09.2005 as claimed by the petitioner. Perusal of record further shows that the respondent has himself admitted in his written statement that he tendered rent for the legally recoverable period to the petitioner on 07.11.2005 without prejudice to the rights but the same was not accepted by him. On the other hand, petitioner has also admitted the fact that such rent as claimed by the respondent was sent by the respondent but it was sent back by the petitioner as it was not entire arrears of rent.
ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -12- As such, it is clear from the material on record that such legal notice dated 02.09.2005 was served upon the respondent and in compliance with the such notice, he tried to tender the rent. Although, it is denied by the respondent of receiving such notice.
14. As such, keeping in view the facts and circumstances and material on record, I am of the considered view such legal notice as stipulated U/Sec. 14(1)(a) D.R.C. Act has been served upon the respondent.
Non-payment of rent:-
15. It is well settled law that when the petitioner files the petition under section 14(1) (a) of D.R.C Act for non-payment of rent, the onus is always upon the respondent /tenant to prove that he had paid the rent and there was no due against him at the time of service of legal demand notice served by the petitioner on the respondent/tenant.
16. Perusal of the record shows that the petitioner has claimed that respondent/tenant had lastly paid the rent for the tenancy upto 14.11.1998 vide receipt no. 35 amounting to Rs.3,500/-. That the respondent has failed to pay the enhanced rent @ Rs.511/- p.m. as it was increased vide legal notice dated 30.12.1997 till date. He is in arrears of rent w.e.f. 15.11.1998 to 14.12.2005.
On the other hand, the respondent submits that he is the tenant in the tenanted premises and the monthly rent of ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -13- tenanted premises is Rs.350/- and the respondent has paid rent of the tenanted premises even after 30.12.1997 which was accepted by his landlady Smt. Prem Kaur against proper rent receipts. That no rent agreement was executed between the parties as alleged by petitioners. That the respondent tendered rent for the legally recoverable period to the petitioner on 07.11.2005 without prejudice to the rights but the same was not accepted by him.
Perusal of record shows that rate of rent is admitted by the respondent as Rs. 350/- per month but he has claimed that has tendered the rent as alleged by the petitioner and he has claimed that he has paid the rent even after 30.12.1997 which was accepted by his landlady Smt. Prem Kaur against proper rent receipts.
Perusal of record shows that the respondent himself has admitted that he has paid the rent even after 30.12.1997 to Smt. Prem Kaur and not to the petitioner. It is well settled that the rent should have been paid or tendered to the landlord/petitioner and not to any other person and if the rent is given to any other person, it will not amount to proper paying or tendering of rent. In this case also, respondent has admittedly not paid the rent to the petitioner. As such, it is not a legal tender as stipulated by law. Moreover, the respondent has claimed that he tendered the rent by way of pay order on 07.11.2005 but it was refused by the petitioner. On the other hand, the petitioner has also admitted the fact of returning such pay order to the respondent.
17. As such, is proved on record that the rent was returned by ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -14- the petitioner but in my view the respondent always had the opportunity to deposit the rent with the Rent Controller as stipulated U/Sec. 27 of D.R.C. Act which clearly deals with the present situation but the respondent has not made any efforts to deposit it with the Rent Controller and he has not given any plausible reasons for such omissions. As such, this contention of the respondent that the rent tendered refused by the petitioner has no merit at all.
18. As such, it is proved on record that the respondent has not paid or tendered or deposited the arrears of rent within stipulated period of time.
As such, the ingredients of section 14(1)(a) D.R.C. Act are satisfied.
Section 14 (1) (b) subletting:-
19. It is expedient to reproduce the Section 14 (1) (b) of DRC Act which is as under:
"Section-14. Protection of tenant against eviction- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by court or any controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -15- manner, make an order for recovery of possession of the premises on one or more of the following grounds only, namely:-
(b) That the tenant has, on or after the 9th day of June, 1952, sub-let, assigned or otherwise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord".
20. As per Delhi Rent Act, Section 14 (1)(b) is one of the grounds entitling landlord to get the order of eviction against the tenant. It is well settled that subletting is not absolutely prohibited by the law or by the Delhi Rent Control Act but the subletting should be with the consent of landlord and such consent should be in writing. 14 (1)(b) clearly lays down that eviction may take place even when the tenant has parted with the possession of whole or part of the premises. In view of provision of law, the landlord is required to prove following essential conditions:-
(i) The tenant sub-let, assigned or parted with the possession of the whole or part of the premises. i.e. the sub tenant was in exclusive possession of property or part of the property.
(ii). No consent in writing was taken from the landlord by the tenant.
ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -16-
21. It is well settled that exclusive possession means the possession to the exclusion of others and it includes not only the physical possession but also the legal possession. It is also clear that parting with possession means giving possession to persons other than those to whom possession was assigned by the lessee and parting with possession must have been by the tenant.
It is also settled that mere use by other persons is not parting with possession so long as the tenant retains the legal possession himself. Subletting take place only when there divesting of physical possession as well as of the right to possession. In other words, there must be vesting of possession by the tenant in other person by divesting himself not only of physical possession but also of the right to possession.
So long as the tenant keeps the control with him, it can not be said that sub-tenant is exclusive possession of premises and in such situation the case does not fall within Section 14 (1)
(b) D.R.C. Act.
The divestment or abandonment of the right to possession is always necessary to invoke the clause of parting with possession.
22. Perusal of the record shows that the petitioner claims that the premises were has been sub-let by the respondent to one Sh. Ahmad Ali in the year 1999 for running the business of Shoes sales and after him it has further being sub-let to Sh. Charanjit Gandhi for running readymade garments business. That in 2000 the respondent started running his business of ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -17- readymade garments contrary to the agreement to run the sweet shop. That respondent has violated the terms of agreement and inducted sub-tenant without the permission of the landlord.
On the other hand, respondent has submitted that the tenanted premises has been in exclusive occupation and possession of the respondent and it was never sub-let or parted with its possession to anyone including alleged Sh. Ahmad Ali or Sh. Charanjit Gandhi. That it is denied that the respondent sub- let the premises to the alleged Ahmad Ali in the year 1999 or Sh. Charanjit Gandhi and Sh. Sudhir Sharma and others for running the alleged business.
23. I have carefully and minutely gone through the material and testimonies of all the witnesses on record. I have also gone through carefully the testimony of RW-1/ Smt. Lalita (wife of the deceased respondent). Perusal of record and testimony shows that the petitioner has not been able to prove prima-facie that the sub-tenant, as alleged by the petitioner are/ were in the actual/ physical possession and legal possession of the tenanted premises.
I have carefully gone through the entire testimonies of all the witnesses from the petitioner side and respondent side and also the all the relevant documents filed by both the parties. And arguments advanced by both the ld. Counsels. After perusal of all, I am of the considered view that the respondent ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -18- did not sub let the tenanted premises to the other sub-tenant, as alleged by the petitioner.
24. As such it is not proved on record that the tenant has parted with legal as well as the physical possession of the tenanted premises. In other words, it is not proved that the sub tenant is in the exclusive possession of whole or part of the tenanted premises. Since tenant did not part with the exclusive possession of the tenanted premises, question of consent of the landlord in writing as envisaged in the 14(1)(b) does not arise.
25. As such, all the ingredients of section 14(1)(b) D.R.C. Act are not satisfied.
Section 14 (1)(c) D.R.C. Act:-
26. It is expedient to reproduce Section 14(1)(c) D.R.C. Act to comprehend the provisions of law which is as under:-
"Section-14. Protection of tenant against eviction- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by court or any controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, make an order for recovery of possession of the premises on one or more of ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -19- the following grounds only, namely:-
(c) that the tenant has used the premises for a purpose other than that for which they were let--
(i) if the premises have been let on or after the 9th day of June, 1952, without obtaining the consent in writing of the landlord; or
(ii) if the premises have been let before the said date without obtaining his consent;"
As such, the following essential conditions are to be fulfilled for getting the eviction order under this clause :-
i) The user of premises by the tenant for the purpose other than for which it was let out.
ii) No consent in writing has been obtained from the landlord by the tenant before such misuse.
It is well settled that the onus of proving the purpose of letting-out is on the landlord. Such purpose of letting out may be proved by written documents and this is the best evidence to establish such fact. But if such written documents are not available, such fact may be ascertained from circumstances. Rent agreement is the best evidence to establish the purpose of the letting out.
27. It is pertinent to mention that section 14 (5) of Delhi Rent Act provides as under :-
"(5) No application for the recovery of possession of any premises shall lie under ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -20- sub-section (I) on the ground specified in clause (c) of the proviso thereto, unless the landlord has given to the tenant a notice in the prescribed manner requiring him to stop the misuse of the premises and the tenant has refused or failed to comply with such requirement within one month of the date of service of the notice; and no order for eviction against the tenant shall be made In such a case, unless the Controller is satisfied that the misuse of the premises is of such a nature that it is a public nuisance or that it causes damage to the premises or is otherwise detrimental to the interests of the landlord."
As such, the provision of law i.e. section 14(5) clearly lays down that the no application for recovery of possession of any premises shall lie under section 14(1)(c) unless the landlord gives the tenant a notice requiring him to stop the misuse of premises. It is only after when the tenant does not comply with such requirements within one month of the service of such notice, the landlord becomes entitled to file the eviction petition under section 14(1) (c) of D.R.C. Act.
Moreover, the Controller should be satisfied that misuse of the premises is creating public nuisance or causing damage to the premises or detrimental to the interest of landlord.
28. Now the following conditions are to be considered:-
ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -21-
(i). Firstly, whether there was change of user or not.
(ii). Secondly, whether any consent in writing obtained from the landlord.
(iii). Thirdly, whether such change of user is causing public nuisance or damaging the premises or detrimental to interest of landlord.
29. Perusal of the record shows that is it claimed by the petitioner that as per rent agreement dated 16.05.1984 tenanted premises was let out to run the sweet shop but on the contrary he started using the tenanted premises for running ready made garments.
On the other hand, the respondent submits that it is denied that the tenanted premises was let out to him for running a sweet shop. That the tenanted premises was commercial and it was not for any specific purpose. That the respondent was let out for carrying on his business activity and it is being used for commercial purposes only.
30. Perusal of the record shows that the petitioner has claimed that the respondent was let out for running a sweet shop, but he is using it for selling of ready made garments. On the other hand, the respondent has disputed this fact. I have also carefully gone through the material on record and testimonies of all the witnesses which do not prove the misuser of such tenanted premises. As such, the petitioner has been unable to prove the fact that it is/was misused.
I have also gone through the material on record and the ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -22- petition which shows that the petitioner has nowhere mentioned in the petition that misuse by the respondent is such as is causing public nuisance or damaging the premises or detrimental to interest of landlord.
31. As such, the petitioner has not been able to prove the ingredients of Sec. 14(1)(c) and 14(5) of D.R.C. Act.
Section 14(1) (j) of D.R.C. Act:-
32. Section 14(1)(j) is reproduced as under:-
"(j) that the tenant has, whether before or after the commencement of this Act, caused or permitted to be caused substantial damage to the premises."
It is well settled that every damage to premises does not entitle the landlord to obtain the eviction order. There should be substantial damage to the premises. There should be material alteration in the premises. The onus to prove that the tenant has caused substantial damage to the property is on the landlord.
In the case titled as Shakuntla Devi Vs Avtar Singh 113 (2004) DLT 424, the Hon'ble Delhi High Court observed that:-
"6. Having analysed the reasonings of the courts below, I am of the view that the very fact that the tenant-respondent has punctured the weight- bearing walls of the premises in question and created additional space for himself by way of parchhati equivalent to the floor area, admits of ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -23- increase of weight on the load-bearing walls and certainly can be said to have caused substantial damage to the premises in question. The tenant can not damage the walls, erect additional space and yet claim that no substantial damage has been caused to the premises in question. Structural change which brings about additional load on the existing load bearing walls, is substantial damage to the premises in question. It is not necessary that the walls must crumble under additional weight to bring the mischief of the tenant under Section 14(1)(j) of the Act. Suffice to say in the facts and circumstances of the present case where the tenant has punctured holes into the walls created additional space by erecting a parchhati equivalent to the floor area of the room in question and is using the same for either storage of goods and/or residence purposes, would come within the mischief of Section 14(1)(j) of the Act. The tenant is not permitted to make any changes/alterations so as to increase load on the walls which are otherwise designed to hold the structure as was let out to the tenant".
In the case titled as Suraj Parkash Sawhney Vs Bhagat Ram passed in S.A.O.No.328-D of 1964, the Hon'ble Punjab High Court observed that:-
"Sub-Section (10)has been introduced as a corollary to clause (j) of the proviso to sub-section(1), and it is provided that in cases where the tenant caused a substantial damage to the demised premises the Controller may direct the tenant to carry out repairs to the damage caused to his (the Controller's) satisfaction or to pay such amount by way of compensation as the Controller may direct. The sub-section has been enacted to grant relief to the tenant causing substantial damage to the demised premises in case he is prepared to undo the damage caused by him. Sub-section (10), however, does not make it imperative for the Controller to give a choice to the tenant either to repair the damage or to pay the compensation. It would in my view, depend upon the circumstances of each case for the Controller to decide as to whether he should make an order calling upon the tenant to repair the damages or to pay an amount by way of compensation and to mould his directions accordingly. The Controller is vested with a discretion in the matter which must be exercised judicially looking to the facts of each case, and it is for the Controller to decide as to what type of order contemplated by sub-section (10) should be made by ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -24- him. In a case like the present if the order were not for the construction of the intervening wall but only for payment of a paltry compensation of Rs.200/- which would, according to Mr. Hardy, be the cost of constructing the wall, there would always be a danger of the entire building falls down because of the demolition of the wall which was supporting roof. The payment of compensation in a case like the present wall hardly be the proper relief and as such the Additional Controller and Tribunal were in my opinion fully justified in direct the tenant construct the intervening wall in case he wanted to avoid his eviction in Appeal No.328-D of 1964 is consequently dismissed."
In the case titled as Suraj Parkash Chopra Raj kumar vs Baij Nath Dhawan and Anr. 2003 III AD Delhi 705, 103 (2003) DLT 645, the Hon'be High Court of Delhi observed as under :-
"(i) the onus of proving that the tenant has caused substantial damage to the demised premises is upon the landlord;
(ii) landlord must prove that addition and alteration in the tenancy premises is carried out by the tenant;
(iii) tenant has made his construction without the consent of landlord;
(iv) the said construction has materially affected the tenancy premises and further that the construction which had been carried out by the tenant had materially altered the premises;
(v) Court must determine the nature, character of the construction and the extent to which they make changes in the structure of the premises having regard to the purpose for which the premises have been let out;
(vi) landlord has to prove it by cogent evidence and wherever necessary expert witness should be examined;
(vii) an eviction order under Clause (j) could be passed if and structural changes in the tenancy premises which had brought about material impairment in the value and utility of premises;
(viii) every construction or alteration does not impair the value and utility of the building and that construction must be of material nature which should substantially diminish the value of the building either from commercial and monetary point of view or from utilisation aspect of the building;
(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;
ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -25-
(x) every change, addition or alteration in the tenancy premises will not invite eviction of the tenant under Clause (j) and that each case would depend upon its own facts; and
(xi) the impairment of the value and utility of the building is to be seen from the point of view of the landlord and not tenant."
33. Perusal of the record shows that the petitioner has claimed that the respondent has damaged the entire flooring of the shop and also covered the sewer line by putting the permanent marble stones over the sewer line provided by the MCD and has misused the waterline by supplying water to the buyers. That the respondent has damaged the complete fabric of the shop by fixing 'bhatti' in the backroom.
On the other hand, respondent has denied that he has damaged the flooring of the shop or covered the sewer line as alleged or he has misused the water facility. That alleged grounds are not available to the petitioner as the same fall within the domain of the local authority. It is also denied that the respondent has damaged the complete fabric of the shop by fixing 'bhatti' in the back room and thereby destroyed the entire fabric of the shop. That no such 'bhatti' exist in any portion of tenanted premises and the respondent has no concern with the use of shop by the previous tenant.
34. I have carefully and minutely perused the record and testimonies of the witnesses.
35. As mentioned earlier, all the alterations and additions in the premises are not substantial damage and the duty is always on the landlord to prove that such alterations and additions have ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -26- caused substantial damage to his premises. It is well settled that every damage is not substantial damage.
36. It is well settled that every construction or alteration does not impair the value and utility of the building and that construction must be of material nature which should substantially diminish the value of the building either from commercial and monetary point of view or from utilisation aspect of the building. It is also clear that every change, addition or alteration in the tenancy premises will not invite eviction of the tenant under Clause (j) and each case depends upon its own facts.
37. I have carefully gone through the record and I am of the considered view that the petitioner has not been able to prove the ingredients of Sec. 14(1)(j) of D.R.C. Act.
Section 14(1) (k) D.R.C. Act:-
38. Section 14(1)(k) of D.R.C Act is as under:-
"(k) that the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or the Municipal Corporation of Delhi while giving him a lease of the land on which the premises are situated."
ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -27- As such the following are the ingredients of section 14(1)(k) D.R.C. Act :-
i) Tenant used the premises in contravention of conditions imposed by the government authority giving landlord a lease of land.
ii) The tenant continued such contravention despite previous notice given by the landlord.
39. Perusal of the record shows that the petitioner has claimed that the respondent has also used the tenanted premises against the building by laws as he has extended his shop on road side on the MCD Lane and therefore violating the conditions imposed by the MCD.
On the other hand, the respondent has denied that respondent has used the tenanted premises against the building by laws in view of his alleged extension of shop. That there is no extension of the shop and the shop still exist in the same condition as it was let out to the respondent with exception to keep the same in tenantable repairs which landlady failed.
40. I have carefully and minutely gone through the material on record, testimonies of all the witnesses and documents on record.
In his petition, the petitioner (landlord) has alleged that the respondent has also used the tenanted premises against the building by laws as he has extended his shop on road side on the MCD Lane and, therefore, violating the conditions imposed ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -28- by the MCD. On the contrary, the allegations leveled by the petitioner are denied by the respondent and it is averred by the respondent that the MCD has exclusive to right and encroachment made on the municipal land and the petitioner has no concern or cause for the same.
It is pertinent to mention that the petitioner has to prove the ingredients of the section 14(1)(k) D.R.C. Act for which firstly, he has to prove that he had given the prior notice to tenant requiring him to comply with the conditions of lease of land between the landlord and government authority. Secondly, the tenant has contravened the such conditions of lease of land despite such notice.
I have gone through the judicial record but I have not come across any document or documents which reflect the conditions of lease of land. Even the notice issued by the petitioner to the respondent is not proper. It does not reflect the terms and conditions of lease of land. Until and unless, the tenant is not made aware of the terms and conditions of lease of land, how a compliance thereof can be expected from the tenant.
41. Having perused the material on record, I am of the considered view that the ingredients of section 14(1)(k) D.R.C. Act are not satisfied.
ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs) -29- CONCLUSION:-
42. In view of the aforesaid discussions, this court has come to the conclusion that the petitioner has satisfied all the ingredients of Section 14(1)(a) of D.R.C. Act in respect of the tenanted premises i.e. Shop No. 4 of property no.28/1, Ashok Nagar, Jail Road, Delhi as shown in red in the site plan Ex. PW1/A annexed with the petition.
Further, the petitioner has failed to prove all the ingredients of Sec. (b),(c), (j) & (k) of the D.R.C. Act.
43. Record shows that an order U/S 15(1) of DRC Act was passed by this court on 26.09.2018 directing the respondent to pay or tender the rent w.e.f. 22.12.2002 @ Rs. 350/- per month within one month from the date of order and the future rent at the same rate.
As such, in view of discussion as earlier, a modified order is passed U/S 15(1) of DRC Act directing the respondent to pay or tender the rent w.e.f. 22.12.2002 till date @ Rs. 385/- with simple interest @ 15% p.a within one month from today and respondent is further directed to pay or tender the future rent at the same rate on or before the 15th of day of succeeding English calendar month.
44. Nazir attached to this court is directed to file his report in respect of order passed by this court today U/S 15(1) of DRC Act. Report be filed on 05.04.2019.
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45. Miscellaneous file be prepared for the benefit, if any, U/Sec. 14(2) D.R.C. Act.
46. This file be consigned to Record Room after due compliance.
Announced in the open court
on 12th December, 2018. Digitally signed
AJAY by AJAY NAGAR
Date:
(This judgment contains 30 pages)
NAGAR 2018.12.12
18:01:33 +0530
(AJAY NAGAR)
Commercial Civil Judge-cum-
Additional Rent Controller,
West District, THC, Delhi.
ARC No. 25272/16 Balbir Singh Kohli (since deceased through LRs Vs Gobind Lal (Since deceased through LRs)