Delhi District Court
Mulakh Raj vs Savitri on 19 April, 2025
IN THE COURT OF MS. SHAIL JAIN
PRINCIPAL DISTRICT & SESSIONS JUDGE,
RENT CONTROLLER TRIBUNAL
EAST, KARKARDOOMA COURTS, NEW DELHI
RCT No. 11/2023
Mulakh Raj
S/o Late Sh. Mangat Ram
C/o Shop bearing no. 779/5
Jheel Khuranja, Scooter Market,
Delhi-110051.
............Appellant
Versus
1. Savitri
W/o Late Sh. Rajbeer Singh
2. Ms. Payal Raghav
D/o Late Sh. Rajbeer Singh
3. Ms. Ritu Raghav
D/o Late Sh. Rajbeer Singh
4. Virender Raghav
S/o Late Sh. Rajbeer Singh
All R/o 780-A, Jheel Khuranja
Delhi-110031.
.......Respondents
Date of institution of case : 06.11.2023
Date of passing of judgment : 19.04.2025
JUDGMENT:
1. Appellant/tenant has filed present appeal along with an application under Section 5 of the Limitation Act against impugned judgment dated 16.08.2023 passed by Sh. Anurag Dass, Ld. SCJ-cum-RC, East District, whereby a petition filed by RCT No.11/2023 Mulakh Raj vs. Savitri & Ors. Page 1/8 the appellant herein under Section 44 (3) of Delhi Rent Control Act (DRC Act) for repairing the shop bearing no. 779/5, Ground Floor, Jheel Khuranja, Scooter Market, Delhi was dismissed.
2. Notice of appeal was issued to respondent. Respondents appeared and filed reply reiterating therein his case, as set-up in the reply filed in response to application of appellant before Ld. Trial Court.
3. Facts leading to filing of present appeal are that appellant herein/tenant had filed a petition against respondents/landlords herein under Section 44(3) of the DRC Act stating therein that appellant is tenant and in possession of tenanted shop bearing no. 779/5, Ground Floor, Jheel Khuranja, Scooter Market, Delhi- 110051. The said shop is quite old and its plaster and roof have developed many cracks, number of plants and banyan trees have grown on the roof and roots of these plants have penetrated the roof due to which rain water flows down into the shop and iron bars and beams have rusted. Legal notice dated 06.08.2022 was issued to the landlords/respondents for carrying out immediate repairs, but of no avail. The respondents/landlords had opposed the said application by filing a reply stating therein that only the respondents can either construct or repair the shop in question but since they are suffering from financial losses, they are not in a position to repair or construct the shop in question. It was also case of the respondents/landlords that the appellant is not running any business work from the shop in question and that appellant has one another shop bearing no. 204 near Banke Bihari Mandir, Jheel Khuranja, where he is running a partnership business of property dealing and sale-purchase of second hand vehicles, with one Anil Kumar Sukhija in the name of Grover Auto Deals and Property. After hearing Ld. Counsels for both the parties, Ld. RCT No.11/2023 Mulakh Raj vs. Savitri & Ors. Page 2/8 Trial Court dismissed application under Section 44(3) of DRC Act. It is against dismissal of said application, present appeal has been filed.
4. I have heard Ld. Counsels for the parties, perused the appeal file, written arguments filed on behalf of respondents, as well as trial Court record.
5. Ld. Counsel for the appellant has argued that plaster and roof of the shop in question have developed many cracks, number of plants and banyan trees have grown on the roof and rain water flows down into the shop whereby rusting iron bars and iron beams. It is further argued that the landlords were requested many a times for carrying out repair of the shop and even legal notice dated 06.08.2022 was issued, but landlords/respondents had failed to carry out any repair. It is further argued that Ld. Trial Court has failed to appreciate the material available on record. It is thus, prayed that impugned order be set aside and application of appellant for carrying out repair in the tenanted shop be allowed. It is further submitted that there is an application under Section 5 of the Limitation Act filed by the appellant, which may be allowed, as delay in filing of present appeal was neither intentional nor deliberate.
6. On the other hand, Ld. Counsel for the respondents has argued in the written arguments that appellant being a tenant has no right to carry out any repair or construction in tenanted shop and respondents are undergoing financial crunch, so they are not in a position to repair the tenanted shop. It is prayed that appeal is liable to be dismissed, as impugned order does not suffer from any illegality. It is further submitted that since appeal has been filed belatedly and no ground for condonation of delay is shown in the application, same is liable to be dismissed.
RCT No.11/2023 Mulakh Raj vs. Savitri & Ors. Page 3/87. I have considered the submissions made by Ld. Counsels for the parties, written arguments filed by the respondents, impugned judgment and also perused the Trial Court record as well as appeal.
8. Before deciding the appeal on merits, I shall first decide the application under Section 5 of the Limitation Act. In the application, it is mentioned that impugned order was passed on 16.08.2023; appellant moved application for obtaining certified copy of the order on 24.08.2023, which was delivered to the appellant on 14.09.2023 and immediately on receipt of certified copy of impugned order, present appeal has been filed. It is prayed that application be allowed, as delay in filing of present appeal is neither intentional nor deliberate.
9. No reply to this application has been filed on behalf of respondents. Perusal of the record shows that impugned order was passed on 16.08.2023, appellant applied for certified copy of the order on 24.08.2023, same was ready on 11.09.2024. It is case of the appellant, that same was delivered or collected on 14.09.2023. The appeal was e-filed on 17.10.2024. Apparently, there is some delay of about a week in filing of present appeal. However, I am of the opinion that Court should be liberal in considering condonation of such small delay & should proceed to dispose off appeal on merits rather than on some technical points of delay of few days. Considering the same, application for condonation of delay is hereby allowed and delay in filing of present appeal is hereby condoned.
10. Coming to merits of the case, in the appeal, the appellant/tenant is seeking direction to the landlord/respondents for making repair in the tenanted premises for making it RCT No.11/2023 Mulakh Raj vs. Savitri & Ors. Page 4/8 habitable and usable. The respondents/landlords have not denied that the tenanted premises requires repairs, rather they have submitted that the tenanted premises is in dilapidated condition. Although the respondents have claimed that the appellant/tenant is not using the tenanted premises since 2014 but no other reason for not carrying out repairs or denial of need of repairs has been stated by the respondents. It is admitted case of the parties that a petition under Section 14(1)(e) of the DRC Act has already been filed by the respondents/landlords against the appellant/tenant.
11. For better appreciation, Section 44 of the DRC is reproduced hereinunder:-
Section 44. Landlord's duty to keep the premises in good repair. (1) Every landlord shall be bound to keep the premises in good and tenantable repairs.
(2) If the landlord neglects or fails to make, within a reasonable time after notice in writing, any repairs which he is bound to make under subsection (1) the tenant may make the same himself and deduct the expenses of such repairs from the rent or otherwise recover them from the landlord:
Provided that the amount so deducted or recoverable in any year shall not exceed onetwelfth of the rent payable by the tenant for that year.
(3) Where any repairs without which the premises are not habitable or usable except with undue inconvenience are to be made and the landlord neglects or fails to make them after notice in writing, the tenant may apply to the Controller for permission to make such repairs himself and may submit to the Controller an estimate of the cost of such repairs, and, thereupon, the Controller may, after giving the landlord an opportunity of being heard and after considering such estimate of the cost and making such inquiries as he may consider necessary, by an order in writing, permit the tenant to make such repairs at such cost as may be specified in the order and it shall thereafter be lawful for the tenant to make such repairs himself and to deduct the cost thereof, which shall in no case exceed the amount so specified, from the rent or otherwise recover it from the landlord:RCT No.11/2023 Mulakh Raj vs. Savitri & Ors. Page 5/8
Provided that the amount so deducted or recoverable in any year shall not exceed onehalf of the rent payable by the tenant for that year:
Provided further that if any repairs not covered by the said amount are necessary in the opinion of the Controller, and the tenant agrees to bear the excess cost himself, the Controller may permit the tenant to make such repairs.
12. From perusal of Section 44 of the DRC Act, specially sub sections (2) & (3), it is clear that if a tenant gives notice in writing to the landlord for carrying out repairs in the tenanted premises, it is duty of the landlord to repair the premises. In case, the landlord fails to repair, the tenant has two options:
firstly if minor repairs are required upto one month's rent, the tenant can make repairs and claim rent/repair amount from the landlord. In case the repairs required in the tenanted premises is more or major & it would entail the expenses of more than one month's rent, Section 44 (3) of the DRC Act provides that tenant should approach Rent Controller for seeking permission to make repairs in the tenanted premises and on grant of such permission, the tenant can carry out repairs in the tenanted premises himself and recover the amount from the landlord subject to limitations given in the proviso attached to section 44 (3). Thus Section 44 (3) of the DRC Act provides that if the landlord is not making repair in the tenanted premises, to make it habitable or usable, after approaching the Court of Rent Controller, the tenant can seek permission of Rent Controller to carry out repairs himself and the amount upto six months' rent can be deducted from the rent and if expenses of repairs are more than six months' rent, excess amount has to be borne by the tenant himself.
13. Vide order dated 17.09.2024, both the parties were informed of the relevant provisions regarding carrying out repair RCT No.11/2023 Mulakh Raj vs. Savitri & Ors. Page 6/8 in the tenanted premises and the appellant/tenant was asked to submit if he is ready or willing to bear the cost of such repairs and the nature of repairs required in the tenanted shop. In view of this, the appellant has filed on 29.11.2024 and 18.12.2024 application Annexure A providing complete details of repairs and estimated expenditure Annexure B for such repairs, which are as under :
(a) Repairing and plastering inner walls of tenanted shop.
(b) Laying of the floor afresh (since it is damaged all over).
(c) Replacement of eight corroded T-iron of the roof and the stones (patiya) thereof.
(d) Laying of roof bricks tiles.
(e) Replacement of electrical wires and switches and repairing
of door shutters.
14. After considering the submissions of Ld. Counsels for the parties, relevant provisions of law and applications as filed by the appellant, I am of the opinion that the law permits a tenant to carry out necessary repairs in the tenanted premises to make it habitable and usable when the landlord has failed to do so even after receiving legal notice from the tenant. In the present case, tenant had issued a legal notice dated 06.08.2022 to the landlords for making the necessary repairs in the tenanted shop. The Rent Controller, in my opinion, has committed an error in not permitting tenant to carry out repair in the tenanted premises and stressing on the ground that it is fault of the tenant because of which, the premises has become inhabitable, therefore, the impugned order dated 16.08.2023 passed by Ld. Rent Controller is set-aside. The tenant/appellant is permitted to carry out necessary repairs in the tenanted premises, as mentioned in the application Annexure 'A' after specifically informing the RCT No.11/2023 Mulakh Raj vs. Savitri & Ors. Page 7/8 respondents/landlords schedule for carrying out necessary repairs. The tenant will be at liberty to deduct only six months' rent towards the expenses of repairs. If any other amount over and above the six months' rent is required, for such repairs, same will be borne by the tenant & will not be claimed from landlords/respondents.
15. Entire repairs should be carried out by the tenant, within three months from starting such repairs. It is further necessary to mention that this order will have no bearing on any legal proceedings pending between the parties. Consequently, the present appeal stands allowed. Annexure A & Annexure B shall form part of this order.
16. TCR be sent back to the Ld. Trial Court, alongwith copy of this order and annexures 'A' & 'B'.
File be consigned to Record Room.
Digitally signedSHAIL by SHAIL JAIN Date: JAIN 2025.04.21 14:23:53 +0530 Announced in the open Court (Shail Jain) today on 19th April, 2025 Principal District & Sessions Judge Rent Control Tribunal East, Karkardooma Courts, Delhi RCT No.11/2023 Mulakh Raj vs. Savitri & Ors. Page 8/8