Delhi District Court
Through General Attorney vs Sh. Ram Prasad on 16 September, 2016
IN THE COURT OF SHRI HEM RAJ: ADMINISTRATIVE
CIVIL JUDGE CUM ADDITIONAL RENT CONTROLLER
(CENTRAL) : DELHI
E74/2014
Unique ID No: 02401C0352242014
In the matter of:
Pratima Duggal,
W/o Sh. Sanjay Duggal,
R/o 3/56, Ramesh Nagar,
New Delhi110015.
Through General Attorney:
Sh. Sanjay Duggal,
S/o Late Sh. Raj Pal Duggal,
R/o 3/56, Ramesh Nagar,
New Delhi.
....Petitioner
Versus
Sh. Ram Prasad,
R/o 4055, Katra Bhagwan Dass,
Kaseru Walan, Pahar Ganj,
New Delhi110055.
.....Respondent
Date of Institution : 28.07.2014
Date of order when reserved : 10.08.2016
Date of order when announced : 16.09.2016
J U D G M E N T :
E74/2014 Page No. 2/2
1. Initially Shree Ram Goyal filed the present eviction petition under Section 14 (1) (a) & (j) of Delhi Rent Control Act, 1958 (hereinafter referred to as Act) against the respondent on 28.07.2014.
2. The brief facts of the case are that the present petition had been filed by Shree Kishan Goyal with the averment that the one room with Veranda situated at the ground floor of properperty bearing no. 4055, Katra Bhagwan Dass, Kaseru Walan, Pahar Ganj, New Delhi 110055, as shown in red colour annexed site plan, was let out by him @ 530/ p.m. for residential purposes. The tenanted premises was let out on the oral terms and it was an old construction. It is further averred that respondent has carried out substantial addition and alternation in the property not only on the ground floor but also on the first floor without permission of the petitioner and caused substantial damages to the property. He further averred that he served a legal notice dated 24.04.2016, which was duly served upon the respondent demanding rent for the seven years @ 530/ p.m. alongwith arrears of House Tax approximately Rs.11,800/ and the petitioner has failed to pay or tendered the legally recoverable rent within two months from the service of notice. Hence, the petitioner has prayed for order of eviction of respondent from the tenanted premises under Section 14 (1) (ia) (j) of the D.R.C. Act.
3. The notice of the petition was served upon the respondent E74/2014 Page No. 2/2 but he never appeared and, on 05.03.2015, he was proceeded exparte. On 07.07.2015, the present petitioner namely Ms, Pratima Duggal had filed an application U/o. 22 Rule 10 CPC submitted that she had purchased the property from the earlier owner vide Sale Deed dated 04.03.2015. The application was allowed and she was substitiuted as petitioner.
4. In order to prove her case, the petitioner has examined Sh. Sanjay Duggal, Attorney of petitioner and Sh. Virender Kumar, Zonal Inspector, Property Tax Department, Sadar Pahar Ganj Zone, Delhi as PW1 & PW2, respectively.
5. PW1 (Sh. Sanjay Duggal) filed evidence by way of affidavit and deposed on the same lines as averred in the petition. He has relied upon General Power of Attorney executed by petitioner in his favour (Ex. PW1/1); Sale Deed dated 04.03.2015, registration no.1, 302 in Book No.1, Volume No.15923 on pages 127 to 137 (Ex. PW1/2); Sale Deed dated 04.03.2016, registration no.1, 301 in Book No.1, Volume No.15923 on pages 115 to 126 (Ex. PW1/3); demand legal notice dated 24.04.2014 (Ex. PW1/4); postal receipts (Ex. PW 1/5); acknowledgment card (Ex. PW1/6); site plan annexed with the petition (Ex. PW1/7) and copy of Aadhaar Card (Ex. PW1/8).
6. PW2 (Sh. Virender Kumar) has relied upon certified E74/2014 Page No. 2/2 copies of Inspection Form regarding House Tax Assessment of tenants of the Property No. 405455, XV, Kaseru Walan, Pahar Ganj, New Delhi (Ex. PW2/1).
7. Respondent remained exparte and thus no evidence was led by the respondent.
8. The court has heard the submissions of Ld. Counsel for the petitioner and perused the evidence and other material placed on record.
9. In order to establish her case under Section 14 (1) (a) of Act, the petitioner is required to prove the following ingredients :
(i) That there is relationship of landlord and tenant between the parties;
(ii) That there are arrears of legally recoverable rent;
(iii) That a valid legal demand notice was duly served upon the respondent; and
(iv) That the respondent has neither paid nor tendered the entire arrears of legally recoverable rent within two months of date of receipt of legal demand notice.
10. The respondent has not come forward to contest the petiton.
E74/2014 Page No. 2/2He was proceeded exparte vide order dated 05.03.2015. PW1 has proved the copy of Sale Deeds, Legal Notice, Postal Receipts and Acknowledgment Card in this regard. The Legal notice Ex. PW1/4 shows that the earlier land lord i.e. Shree Kishan Goyal had served a notice demanding the rent for the last seven years @ 530/ p.m. The postal receipt has been proved as Ex. PW1/5, the Acknowledgment Card has been proved Ex. PW1/6 which has been received by wife of the respondent. No written statement has been filed on the record controverting the landlord tenant relationship between the parties. The respondent has not paid the earlier legally recoverable rent of two months from the date of receipt of the notice. Petitioner has been able to prove the landlord tenant relationship between the parties that the respondent was in the arrears of legally recoverable rent that respondent was served upon with a demand notice and the respondent has neither paid nor tendered entire arrears of such rent within two months from the date of receipt of demand notice. There is no challenge to the evidence led by the petitioner, and, hence, there is no reason to disbelieve the testimoney of the petitioner.
11. A carefully perusal of Sale deed, Ex. PW1/2 reveals that the petitioner has been given the right to recover arrears of rent as well as to receive the rent from the tenant and get evicted from the court of law and through negotiation. In the case of Sheikh Noor V. Sheikh E74/2014 Page No. 2/2 G.S. Ibrahim, AIR 2003 SC 4163, the Hon'ble court dealt with the question whether the transferee is entitle to recover arrears as rent or not. The para 18 of the judgment can be referred for the reference which read as under : In view of the cases referred to above, in our opinion, the correct position of law is that a transferee is not entitled to recover the arrears as rent for the property on transfer unless the right to recover the arrears is also transferred. If right to recover the arrears is assigned, then the transferee/landlord can recover those arrears as rent and if not paid maintain a petition for eviction under the rent laws for those arrears as well. Since in this case we have found that there was an assignment of right to recover the arrears in favour of the respondent transferee he was entitled to recover the same as arrears of rent. If that period is taken into consideration then the tenant/appellants were certainly in arrears of rent for more than six months and became liable to be evicted from the premises in dispute on the ground of default on their part in payment of rent for more than six months on the date of filing the suit.
In view of the aforesaid observation of the Hon'ble Apex court it is thus clear that if the transferee has been assigned the right to recover the rent in the saledeed itself, then transferee can recover those arrears as rent and if not paid he can maintain a petition for eviction. As observed earlier in Ex. PW1/2, the petitioner has been assigned the right to recover the rent. Therefore, the petitioner is entitled for the arrears of rent which had accrued to the earlier petitioner. Since, the present petition has been substituted in place of earlier petitioner, therefore, it is held that present petitioner is entitled to recover the arrears of rent and continue with the petition.
E74/2014 Page No. 2/212. In view of the discussions made hereinabove, I am of the opinion that the petitioner has proved her case Under section 14 (1) (a) of the Act.
13. The petitioner has also claimed eviction on the ground as mentioned 14 (1) (j) of the Act. The petitioner is required to prove that the respondent has caused or permitted to be caused substantial damage to the premises.
14. To succeed on this ground, the petitioner has to prove on record that the respondent has caused substantial damage and not mere damage. Moreover, addition or alternation in the tenancy premises which do not change the nature or structure of the premises let would not be covered by this clause. It is settled law that the substantial damage in the property is to be seen from the point of view of the landlord and not from the point of view of the tenant. Every construction or alternation does not impair the value and utility of the building and 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 utilisation aspect of building. In the judgment titled as Suraj Prakash Chopra Raj Kumar Vs. Baij Nath & Ors. 103 (2003) DLT 645, Hon'ble Mr. Justice M.A. Khan E74/2014 Page No. 2/2 having analysed the judgments of Apex court and other High Courts on the subject summarised the law in the paragraph 33 of the judgment as under : "33 Analysis of the case law cited on behalf of both the parties, as noticed above propostion of law may be summaried 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 alternation 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 the tenant has carried out such additions or alternations and structural changes in the tenancy premises which had brought about material impairment in the value and utility of premises;
(viii) every construction or alternation does not impair the value and utitility 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 alternation or addition which can be easily repaired without causing damage to the structure is not substantial damage to the tenancy E74/2014 Page No. 2/2 premises;
(x) every change, addition or alternation in the tenancy premises will not invite eviction of the tenant under Clause (j) and that each case would depen 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 "
15. In the backdrop of the position of the law as stated hereinabove, it is to be seen whether the petitioner has proved its case Under Section 14 (1) (j) of the Act or not. As discussed earlier, the onus to prove the fact that the respondent has caused or permitted to be caused substantial damage to the premises always lies on the petitioner. Having gone through the evidence led by the petitioner on the record, I am of the opinion that the petitioner has failed to prove her case U/s. 14 (1) (j) of the Act, for the following reasons :_
(a) Firstly, the petitioner has not examined any expert witness or no expert evidence has been led to prove that the respondent has caused any substantial damage to the premises. Any alternation or addition shall not fall in the definition of substantial damage. In the absence of any expert evidence in this regard, the petitioner has failed to prove the substantial damage to the premises.
(b) Secondly, as admitted by the petitioner the tenancy was an E74/2014 Page No. 2/2 old one and an oral tenancy. There is no writing on the record which shows as to what was let to the respondent at the time of the creation of the tenancy. The petitioner has not examined the earlier owner of the premises who would have been the best evidence in this regard, in absence of which, it is not clear on the record as to what was let to the respondent.
(c) Thirdly, the site plan filed by the earlier petitioner alongwith the petition did not show any alteration or addition to the accommodation let out to the respondent. Even the demand notice Ex. PW1/4 is silent about the addition or alteration to the premises by the respondent. The site plan filed alongwith the petition also does not show any addition or alteration in the premises by the respondent.
(d) Fourthly, the petitioner has not proved the site plan filed by the previous petitioner alongwith the petition. Also the previous owner has not been examined by the petitioner. No independent witness has been examined to depose the exact accommodation let out to the respondent. In absence of the same, it has not been proved on record that the petitioner has caused substantial damage to the property.
(e) Fifthly, the petitioner has merely stated that the respondent has done alteration on the ground floor as well as first floor of the E74/2014 Page No. 2/2 property. In Om Pal Vs. Anand Swarup (1983) 4 SCC 545, it was observed that every construction or alteration does not impair the value and utility of the building and the construction must be of material nature which should substantially diminish the value of the property. I am afraid, that the petitioner has not led any evidence in this regard to share that there was substantial damage to the property which has been done by the respondent.
(f) Sixthly, the petitioner has examined PW2, Sh. Virender Kumar, Zonal Inspector, Property Tax Department, Sadar Paharganj Zone from MCD. He has proved certified copies of the inspection regarding house tax assessment of the tenants in Property No. 405455, XV, Kaseruwalan, Paharganj, New Delhi and proved the report as Ex. PW2/1. A careful perusal of the same document show that the name of the tenant respondent Ram Prasad is not mentioned in the same. No documentary evidence regarding the actual accommodation available at any point of time available with the respondent has been let by the petitioner. In absence of the same, nothing has come on the record about the original accommodation with the respondent and the substantial damage, if at all, has been done by the respondent.
16. In view of the aforesaid discussions, I am of the opinion that the petitoiner has failed to prove the essential requirements of U/s.
E74/2014 Page No. 2/214 (1) (j) of the Act. Hence, the petition stands dismissed visavis Section 14 (1) (j) of the Act. However, the petitoiner has successfully proved her case U/s. 14(1) (a) of the Act and the petition stands allowed visavis section 14(1) (a) of the Act.
17. A perusal of record reflects that in this case, the order under Section 15 (1) of D.R.C. Act has not been passed. Accordingly, the respondent is directed to deposit the arrears of rent @ Rs. 530/ per month excluding electricity charges w.e.f. 24.04.2014 till date. As the petitioner has demanded statutory interest @ 24% per annum in legal demand notice, Ex. PW1/4, therefore, in view of the provision U/s 26 of the DRC Act, the respondent is directed to pay statutory interest @ 24% per annum on the aforementioned amount in the court, within one month from the date of service of this order U/s 15 (1) of DRC Act and to continue to pay the future rent by 15 th of each succeeding English calender month till the decision of benefit U/s 14 (2) of DRC Act.
18. Issue court notice to the respondent who may be served upon copy of this judgment. The Process Server is directed that respondent be served by way of affixation, in case of refusal/non availability/lock on the premises. Further, photographs of affixation be obtained at the expenses of the petitioner which may be filed in the court alongwith his report by the Process Server.
E74/2014 Page No. 2/219. Nazir is directed to file a report about the compliance of Order U/s 15 (1) of DRC Act and a separate file to consider the entitlement of the respondent for the benefit under Section 14 (2) of the D.R.C. Act be maintained. The aspect of compliance/non compliance of this order and whether respondent is entitled to benefit U/s 14 (2) of DRC Act or not, as non compliance of aforesaid order would disentitle the respondent from availing benefit U/s 14 (2) of DRC Act be considered on 17.10.2016. A copy of this judgment be placed in the miscellaneous file.
File be consigned to Record Room.
Announced in the open court (HEM RAJ)
on 16.09.2016 Administrative Civil Judgecum
Additional Rent Controller (Central)
Delhi
E74/2014 Page No. 2/2
E74/14
16.09.2016
Present : None.
Vide separate judgment announced in the open Court today, it is held that the petitioner has successfully established his case under Section 14 (1) (a) of the D.R.C. Act against the respondents in respect of tenanted premises i.e. one room with varanda situated at the ground floor of property bearing no. 4055, Katra Bhagwan Dass, Kaseru Walan, Pahar Ganj, New Delhi110055, more particularly shown in the site plan (Ex. PW1/1) as in red colour. The petition is allowed.
A perusal of record reflects that in this case, the order under Section 15 (1) of D.R.C. Act has not been passed. Accordingly, the respondent is directed to deposit the arrears of rent @ Rs. 530/ per month excluding electricity charges w.e.f. 24.04.2014 till date. As the petitioner has demanded statutory interest @ 24% per annum in legal demand notice, Ex. PW1/4, therefore, in view of the provision U/s 26 of the DRC Act, the respondent is directed to pay statutory interest @ 24% per annum on the aforementioned amount in the court, within one month from the date of service of this order U/s 15 (1) of DRC Act and to continue to pay the future rent by 15 th of each succeeding English calender month till the decision of benefit U/s 14 (2) of DRC Act.
E74/2014 Page No. 2/2Issue court notice to the respondent who may be served upon copy of this judgment. The Process Server is directed that respondent be served by way of affixation, in case of refusal/non availability/lock on the premises. Further, photographs of affixation be obtained at the expenses of the petitioner which may be filed in the court alongwith his report by the Process Server.
Nazir is directed to file a report about the compliance of Order U/s 15 (1) of DRC Act and a separate file to consider the entitlement of the respondent for the benefit under Section 14 (2) of the D.R.C. Act be maintained. The aspect of compliance/non compliance of this order and whether respondent is entitled to benefit U/s 14 (2) of DRC Act or not, as non compliance of aforesaid order would disentitle the respondent from availing benefit U/s 14 (2) of DRC Act be considered on 17.10.2016. A copy of this judgment be placed in the miscellaneous file.
File be consigned to Record Room.
(Hem Raj) ACJcumARC (Central) Delhi/16.09.2016 E74/2014 Page No. 2/2