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Delhi District Court

Sh. Karan Ahuja vs Sh. Subhash Kumar Soni (Since Deceased) on 22 October, 2021

         IN THE COURT OF SH. AJAY NAGAR,
    ADDITIONAL RENT CONTROLLER­02(CENTRAL),
             TIS HAZARI COURTS, DELHI.

CNR No.DLCT03­000190­2007
New No.478378/16
E­1014/14/07

          Sh. Karan Ahuja
          S/o Late Sh. D.P. Rai Ahuja
          R/o. 193, Golf Link,
          New Delhi                                                     ......Petitioner

                     VERSUS

          1. Sh. Subhash Kumar Soni (SINCE DECEASED)
          Through his Legal heirs:­

          (i)Smt. Sudesh Soni
          Wife of Late Sh. Subhash Kumar Soni

          (ii)Ms. Pooja Devi
          Daughter of Late Sh. Subhash Kumar Soni

          (iii)Sh. Abhishek Soni
          Son of Late Sh. Subhash Kumar Soni

          All R/o 8­A/138, W.E.A.
          Karol Bagh, Channa Market
          New Delhi­110005

          2. Sh. Joginder Kumar Soni
          S/o. Late Sh. Roshan Lal Soni
          Both C/o Shop No.4, Ground Floor,

E No. 1014/14/07     Sh. Karan Ahuja Vs Sh. Subhash Kumar Soni & Anr.          Page 1
           Building No. 16­A/17, W.E.A.,
          Ajmal Khan Road, Karol Bagh,
          New Delhi­110005.                                              .....Respondents

Date of filing : 27.09.2007
Date of Order : 22.10.2021

                           JUDGEMENT

1. Brief facts of the case are that the petitioner is seeking eviction of tenant (hereinafter referred to as "respondents") from premises i.e Shop No.4 (Ground Floor) in Building No.16­A/17, W.E.A., Ajmal Khan Road, Karol Bagh, New Delhi­110005 with Tin Roof on the back of shop as shown in red colour in the site plan annexed with the petition (hereinafter referred to as "Tenanted Premises") Under Section 14(1) (b) (j) & (k) of the Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act").

2. Briefly stated the case of the petitioner in the petition is that in the month of June 2006, it was found by the petitioner that the respondents had started making certain additions and alterations on a large scale in the tenanted premises comprising of Shop No. 4 (Ground Floor) in Building No. 16­A/17, W.E.A., Ajmal Khan Road, Karol Bagh, New Delhi - 110005 with Tin Roof on the back of the Shop, and its back portion and had demolished the original construction; that the respondents had E No. 1014/14/07 Sh. Karan Ahuja Vs Sh. Subhash Kumar Soni & Anr. Page 2 broken the floor for which the respondents were served with a notice dated 26.06.2006; that the respondents had closed the shop and had displayed a banner "Renovation" and under the garb of renovation the respondents carried out substantial additions and alterations in the tenanted premises without the consent of the petitioner. That the respondents parted with the possession of the tenanted premises in favour of a third party, which is running a business under the name and style of "LEVI'S STORE", that the respondents who had been let out the tenanted premises were running a business of Halwai/Restaurant under the name and style of "ROSHAN DI KULFI" had used the tenanted premises for the purpose other than that for which they had been let out. Lastly, it is prayed by the petitioner that an eviction order may be passed in favour of the petitioner and against the respondents.

3. Notice of this eviction petition was sent to the respondents in the prescribed format which was duly served on the respondents. In response to which the respondents filed their Written Statement.

4. In the Written Statement the respondents have stated that the tenanted premises were let­out to late Smt. Vidya Devi Soni and her two sons the respondents herein by late Sh. D.P. Rai Ahuja, father of the petitioner. The tenanted premises were let­ out for non­residential/commercial purposes on a monthly rent of E No. 1014/14/07 Sh. Karan Ahuja Vs Sh. Subhash Kumar Soni & Anr. Page 3 Rs. 350/­. The business is being run in the name and style of Roshan Di Kulfi Westend. A restaurant was being run till June, 2006 and presently, the business of readymade garments in the same name is being run. The petitioner was also apprised that the respondents intended to run a readymade garment store from the tenanted premises. That the petitioner has not mentioned as to whom the respondents have allegedly sub­let the tenanted premises. The petitioner has also not stated vis­a­vis ground under 14(1)(k) of the DRC Act as to how the tenanted premises is being used or dealt in a manner contrary to any condition imposed upon the petitioner by the Government or DDA or MCD while issuing the lease to the petitioner. That the petitioner is not the sole owner of the tenanted premises and in the absence of the sister of the petitioner, the eviction petition deserves dismissal. Allegations made in para­3(a) are wrong and denied; That it has been stated by the petitioner that the petitioner is not the only owner of the tenanted premises and his sister is also a co­owner. Submissions made in preliminary objection no. 5 may be read. Para­3(b) needs no reply. The business of readymade garments is being run under the name and style of Roshan Di Kulfi Westend. The petitioner is raising vague and reckless allegations merely on account of the board outside the shop which reads "Levi's Store". The respondents are selling readymade garments of brand "Levi's" and thus the name "Levi's Store". The entire tenanted premises and the business and store is in control of the E No. 1014/14/07 Sh. Karan Ahuja Vs Sh. Subhash Kumar Soni & Anr. Page 4 respondents and there is no question of any third party running the store or the same being sub­let. It is denied that the tenanted premises were let­out for running a business of Halwai/Restaurant only and are being used for purpose other than that for which they were let­out. The tenanted premises were let­ out for non­residential/commercial purpose for running the business of the respondents and the same is being used for the said purpose. Lastly, it is prayed by the respondents that present petition may be dismissed.

5. I have carefully and minutely gone through the petition, leave to defend application accompanied by affidavits, reply/ counter affidavit, documents, material on record and case law relied upon.

LANDLORDSHIP

6. Perusal of petition shows that the Petitioner has claimed that he has become the sole landlord of the tenanted premises after the death of his father Sh. D.P. Rai Ahuja and brother Sh. L.N. Ahuja.

On the other hand, the Respondents have not disputed the landlordship of father of Petitioner as they themselves have stated in the written statement that "The E No. 1014/14/07 Sh. Karan Ahuja Vs Sh. Subhash Kumar Soni & Anr. Page 5 premises were let­out to late Smt. Vidya Devi Soni and her two sons the respondents herein by late Sh. D.P. Rai Ahuja, father of the Petitioner".

7. Moreover, the Respondents have not disputed the relationship of father and son between Sh. D.P. Ahuja and the petitioner. Moreover, the Respondents have themselves admitted that they are paying rent to the petitioner. Perusal of Written Statement as well as material on record manifestly shows that there exists the relationship of landlord­tenant between the parties.

14(1)(b) DRC ACT

8. Perusal of petition shows that the petitioner has claimed in the petition that the respondents have parted with the possession of the tenanted premises in favour of a third party which is running a business under the name and style of "LEVI'S STORE" and the respondents had no concern with this business.

On the other hand, the respondents have stated that "the business of readymade garments is being run under the name and style of Roshan Di Kulfi westend. The petitioner is raising vague and reckless allegations merely on account of the board outside the shop which reads "LEVI'S STORE". The respondents are selling readymade garments of brand "LEVI'S"

and thus the name "LEVI'S STORE". The entire premises and E No. 1014/14/07 Sh. Karan Ahuja Vs Sh. Subhash Kumar Soni & Anr. Page 6 the business and store is in control of the respondents and there is no question of any third party running the store or the same being let out."

9. As such, the respondents have not denied the existence of Levi's Store being run at the tenanted premises at the relevant period but they have claimed that such store was being run by the respondents themselves and not by the third party.

10. I have carefully gone through the petition, written statement, documents, testimonies and material on record. It is expedient to reproduce the relevant portion of testimony of PW1/Petitioner Sh. Karan Ahuja which is as under:­ "My assertion that Levi's is in occupation of the shop is based only on the board outside and a Levi's Store being run. I have never written to Levi's asking them whether they are running a store from the tenanted premises. Other than the presumption of the board and the store being run, I have another point that the staff is of Levi's which was confirmed by them on my asking them in the tenanted premises. I had not taken any card but, he gave his name as Nitin. I had not mentioned the said fact of talking to the staff or the name of employee being Nitin in my affidavit nor I have brought the same."

11. As such bare perusal of testimony of PW1 shows that the basis of allegation of sub­letting by the respondents to the third party is merely the board installed outside the tenanted E No. 1014/14/07 Sh. Karan Ahuja Vs Sh. Subhash Kumar Soni & Anr. Page 7 premises and no other convincing documentary or oral evidence has been placed on record by the petitioner to prove the sub­ letting or parting with the possession by the respondents in favour of third party. Perusal of petition shows that the petitioner has merely stated that respondents have parted with the possession of the tenanted premises in favour of third party and the business is being run under the name and style of Levi's Store.

12. As such, the petitioner has not specifically disclosed the names and details of the persons who are running this store. Moreover, on the other other hand, the respondents have placed many documents on record to prove that such Levi's Store was being run by them and they were running such Levi's Store at the relevant point of time. Documents such as Bank Statement Ex. RW1/6, agreement Ex. RW1/7, number of purchase Bills Ex. RW1/8, Ex. RW1/11, Ex. RW1/12 to 15, RW1/16, Cash Memos RW1/17, Bank Statement Ex. RW1/18, RW1/19 to RW1/21 manifestly show that the respondents were in the exclusive possession of the tenanted premises at the relevant point of time and the Levi's Store was being run by the respondents and they had not diverted themselves of the tenanted premises.

13. Perusal of entire record shows that the petitioner has failed to satisfy the ingredients of Section 14(1)(b) of DRC Act.

E No. 1014/14/07 Sh. Karan Ahuja Vs Sh. Subhash Kumar Soni & Anr. Page 8 As such, petition under section 14(1)(b) of DRC Act is dismissed.

14(1)(j) DRC ACT

14. Perusal of record shows that the petitioner has claimed that in the year 2006, they found that respondents started certain additions and alterations on large scale in the tenanted premises and its back portion and demolished the original construction. The petitioner has also alleged that respondents had broken the floor. The further allegation is that under the garb of 'Rennovation', the respondents carried out substantial additions and alteration and altered the original structure and caused substantial damage to the tenanted premises.

15. On the other hand, the respondents have denied to have caused any substantial damage to the tenanted premises.

16. Perusal of testimony of RW1 shows that although the respondents have admitted to have rennovated the tenanted premises but he has denied to have made any structural changes in the tenanted premises.

17. In the considered view of this court, merely rennovation of the tenanted premises cannot be considered as substantial damage to the tenanted premises. Moreover, the E No. 1014/14/07 Sh. Karan Ahuja Vs Sh. Subhash Kumar Soni & Anr. Page 9 petitioner has failed to prove the parameters as laid down by the hon'ble High Court.

18. Section 14(1)(j) is reproduced as under:­ "Section­14. 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:­

(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."

19. 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 caused substantial damage to his premises. It is well settled that every damage is not E No. 1014/14/07 Sh. Karan Ahuja Vs Sh. Subhash Kumar Soni & Anr. Page 10 substantial damage.

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.

20. In my considered view, the petitioner has not been able to fulfill the requirements as formulated by the Hon'ble High Court of Delhi in case titled as Suraj Parkash Chopra Raj kumar vs Baij Nath Dhawan and Anr. 2003 III AD Delhi 705, 103 (2003) DLT 645.

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.

21. In the case titled as Shakuntla Devi Vs Avtar Singh 113 (2004) DLT 424, the Hon'ble Delhi High Court observed that:­ E No. 1014/14/07 Sh. Karan Ahuja Vs Sh. Subhash Kumar Soni & Anr. Page 11 "6. Having analysed the reasonings of the courts below, I am of the view that the very fact that the tenant­respondent has punctured the weight­bearing walls of the premises in question and created additional space for himself by way of parchhati equivalent to the floor area, admits of 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".

22. In the case titled as Suraj Parkash Sawhney Vs E No. 1014/14/07 Sh. Karan Ahuja Vs Sh. Subhash Kumar Soni & Anr. Page 12 Bhagat Ram passed in S.A.O.No.328­D of 1964, the Hon'ble Punjab and Haryana High Court observed that:­ "Sub­Section (10)has been introduced as a corollary to clause (j) of the proviso to sub­section(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 sub­section 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 sub­section (10) should be made by 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 E No. 1014/14/07 Sh. Karan Ahuja Vs Sh. Subhash Kumar Soni & Anr. Page 13 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."

23. 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'ble 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;

E No. 1014/14/07 Sh. Karan Ahuja Vs Sh. Subhash Kumar Soni & Anr. Page 14

(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 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;

(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;

(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."

24. I have carefully gone through the pleadings of the parties keeping in view the guidelines and observations made by the Hon'ble Supreme Court and Hon'ble High Court.

In view of well settled proposition of law and discussion earlier and material on record, this Court is of the E No. 1014/14/07 Sh. Karan Ahuja Vs Sh. Subhash Kumar Soni & Anr. Page 15 considered view that the petitioner has not been able to satisfy all the ingredients of Sec. 14(1)(j) of DRC Act and also the requisites as directed by the Hon'ble High Court. Hence, the petition under Section 14(1)(j) is also dismissed.

14(1)(k) DRC ACT

25. Perusal of petition shows that the petitioner has sought the eviction order under Section 14(1)(k) of DRC Act also claiming that respondents were let out for running a business of Halwai/Restaurant under the name and style of "Roshan Di Kulfi" but they are using the tenanted premises for the purposes other than for which it was let out.

26. On the other hand, the respondents have denied this fact and claimed that it was let out for commercial purpose and the same is being used for commercial purpose.

27. It is expedient to reproduce Section 14(1)(k) of DRC Act.

Section 14(1)(k) of DRC Act "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 E No. 1014/14/07 Sh. Karan Ahuja Vs Sh. Subhash Kumar Soni & Anr. Page 16 Corporation of Delhi while giving him a lease of the land on which the premises are situate "

28. Perusal of material on record clearly shows that no such lease deed has been filed by the petitioner on record. In the considered view of this court, until and unless, such lease deed is proved by the petitioner, there is no likelihood of proving of conditions of such lease deed. Moreover, the petitioner has merely stated that the tenanted premises is being used for the purposes other than the purposes for which it was let out.

29. Perusal of material on record and Section 14(1)(k) manifestly shows that the petitioner has failed to satisfy the ingredients of Section 14(1)(k) DRC Act. As such, petition under Section 14(1)(k) is also dismissed.

30. Perusal of record shows that the petitioner has relied upon certain case law. In view of exhaustive discussion as earlier, peculiar facts of the case and well settled proposition of law, this case law does not assist the petitioner.

CONCLUSION:

31. In view of exhaustive discussion, the petitioner has failed to satisfy the ingredients of Section 14(1)(b), 14(1)(j) and E No. 1014/14/07 Sh. Karan Ahuja Vs Sh. Subhash Kumar Soni & Anr. Page 17 14(1)(k) of DRC Act. Accordingly, present petition is dismissed.

32. File be consigned to record room after necessary compliance.

Announced in the open court on 22nd October, 2021 (This order contains 18 pages) (AJAY NAGAR) Additional Rent Controller­02 (Central), THC/Delhi.

E No. 1014/14/07 Sh. Karan Ahuja Vs Sh. Subhash Kumar Soni & Anr. Page 18