Delhi District Court
Smt. Geeta vs Sh. Ramesh Chand Tyagi on 20 January, 2014
IN THE COURT OF SHRI VINOD GOEL, DISTRICT & SESSIONS
JUDGE: ADDITIONAL RENT CONTROL TRIBUNAL:
SHAHDARA: KARKARDOOMA COURTS: DELHI
RCA No. 44/13
Unique Identification No.02402C0267282013
Smt. Geeta
W/o Sh. Jitender
R/o 27/103, Ambedkar Park,
In front of main gate Mother Dairy,
Jwala Nagar, Shahdara, Delhi110032. .... Appellant
Versus
Sh. Ramesh Chand Tyagi
S/o Sh. Bali Ram,
Shop situated at property No.27/103, Ambedkar Park,
In front of main gate Mother Dairy,
Jwala Nagar, Shahdara, Delhi110032. ... Respondent
Date of Institution : 24.08.2013
Arguments heard on : 17.01.2014
Date of Judgment : 20.01.2014
Appeal under Section 38 of the Delhi Rent Control Act, 1958 against
the impugned order dated 19.07.2013 passed by Ld. Rent Controller,
Shahdara, Delhi in petition no. M(44)33/10.
RCA No.44/13
Smt. Geeta Vs. Sh. Ramesh Chand Tyagi
Decided on 20.01.2014 Page 1/7
JUDGEMENT :
1. The appellate jurisdiction of this court has been invoked by the appellant/landlord under Section 38 of Delhi Rent Control Act, 1958 (hereinafter referred to as the "DRC Act") feeling aggrieved by the impugned order dated 19.07.2013 passed by Ld. Rent Controller, Shahdara, KKD Courts, Delhi, by which the appellant/landlord was directed to raise the floor of the shop and affix shutter to the shop and get repaired roof of the shop within a period of two months.
2. Shorn of unnecessary details, the relevant facts for disposal of this appeal are that the respondent/tenant preferred a petition under Section 44 of "DRC Act" pleading therein that he has been a tenant of the shop no.27/103A, Main Road, Jwala Nagar, Shahdara, Delhi110032 at a rent of Rs.300/ per month and the appellant/landlord herein has not carried out repair in the shop despite several requests and day by day its condition is deteriorating in as much as during rainy season water is logging as the level of the shop has lowered down due to rising of the road level and consequently the level of the shutter of shop has lowered down than the road level and it strikes the head of the person who enters the shop and it has become very difficult to open and close it. The water RCA No.44/13 Smt. Geeta Vs. Sh. Ramesh Chand Tyagi Decided on 20.01.2014 Page 2/7 of the roof also enters the shop due to leakage and waste of the ceiling also falls in the milk and its products. The tenant/respondent herein issued a notice dated 25.03.2010 to the appellant/landlord vide speed post but of no avail.
3. In her reply the appellant/landlord did not dispute the relationship of landlord and tenant between the parties but pleaded that rent of the shop has been Rs.330/per month. On merits it is pleaded that one Sh. Ashwani, a sub tenant, in collusion with the tenant/respondent herein has already got the shop repaired and raised the ground level and shutter of the shop without her permission. However, as this reply was filed by the appellant/landlord beyond period of 90 days from the date of service of notice, her defence was struck off by Ld. Rent Controller on 02.05.2011.
4. In support of her case, the respondent/tenant examined herself as PW1 and he deposed all the facts in his examination in chief by way of affidavit tendered in evidence which he has mentioned in the petition. He has also examined Sh. Anil Kumar Gupta of M/s. A.K. Gupta and Associates, Architects and Engineers, who proved his inspection report dated 21.01.2012 Ex. PW2/1 in respect of the inspection carried out by him of the shop in question. The landlord/appellant has not adduced any RCA No.44/13 Smt. Geeta Vs. Sh. Ramesh Chand Tyagi Decided on 20.01.2014 Page 3/7 evidence before Ld. Rent Controller. Vide impugned order dated 19.07.2013 the appellant/landlord was directed to raise the floor of the shop as per Bylaws and affix shutter to the shop and to get repaired the roof of the shop within a period of two months.
5. I have heard ld. counsel for both the parties and very carefully perused the material available on record.
6. Before appreciating the rival contentions of the parties, it is necessary to refer the relevant provisions of law i.e. Section 44 of "DRC Act" which read as under: "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 one twelfth of the rent payable by the tenant for that year.
RCA No.44/13 Smt. Geeta Vs. Sh. Ramesh Chand Tyagi Decided on 20.01.2014 Page 4/7 (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.
Provided that the amount so deducted or recoverable in any year shall not exceed one half 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."
RCA No.44/13 Smt. Geeta Vs. Sh. Ramesh Chand Tyagi Decided on 20.01.2014 Page 5/7
7. A bare reading of the provision shows that if the landlord neglects or fails to make out any repairs in the demised property under Sub Section (1) of 44 of "DRC Act", the tenant may carry out such repairs himself and deduct the expenses of such repairs from the rent to the extent of 1/12th of the rent for that year and under Sub Section (3) where any repairs without which the premises are not habitable or usable, the tenant may apply to the Rent Controller for permission to make such repair himself and after making such inquiries, the Rent Controller if consider it necessary by an order in writing permit the tenant to make such repairs himself and deduct the cost thereof, which shall in no case exceed the amount so specified, from the rent or otherwise recover it from the landlord to the extent of one half of the rent payable by the tenant for that year. The tenant/respondent herein has not rebutted the evidence adduced by the appellant/landlord. During the course of arguments it is not disputed by the learned counsel for the appellant/landlord that the floor of the shop has come down as the level of the road is elevated and the roof and ceiling of the shop requires repair but argued that the landlord cannot be burdened with the task of repair.
8. The Ld. Rent Controller has ignored the mandate of Section 44 of RCA No.44/13 Smt. Geeta Vs. Sh. Ramesh Chand Tyagi Decided on 20.01.2014 Page 6/7 "DRC Act" and instead of giving permission to the tenant/respondent herein, the learned Rent Controller has directed the landlord/appellant to carry out the repairs in the shop in question which is against the spirit of the provision. Therefore the impugned order of Ld. Rent Controller dated 19.07.2013 directing the landlord/appellant to carry out the repairs in the shop is hereby set aside. However, the tenant is permitted to carry out the repair the floor of shop by elevating it above road level, replace the shutter accordingly and get repaired roof of the shop and deduct or recover the cost of such repairs from the rent to the extent of one half of the rent payable for the year as permitted under Section 44 of "DRC Act", and if the cost of repairs exceed the amount so deducted or recoverable shall be borne by the tenant/respondent herein himself.
9. With these modifications in the impugned order dated 19.07.2013 of Ld. Rent Controller, this appeal is disposed of accordingly. Trial Court record be sent back with an instant copy of this judgment. Appeal file be consigned to record room.
Announced in open Court th on 20 January, 2014 (Vinod Goel) District & Sessions Judge, Additional Rent Control Tribunal, Shahdara, KKD Courts, Delhi.
RCA No.44/13 Smt. Geeta Vs. Sh. Ramesh Chand Tyagi Decided on 20.01.2014 Page 7/7