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[Cites 17, Cited by 0]

Delhi District Court

Sh. S.P. Minocha vs Sh. Babu Lal @ Babu Khan on 13 September, 2007

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IN THE COURT OF SHRI M.C.GARG, ARCT, DELHI 


RCA:82/07

Sh. S.P. Minocha
Advocate
S/o Late Sh. R.L. Minocha,
R/o F­14/20, First floor, 
Model Town­II, 
Delhi­110009.
                                                 APPELLANT

VS. 

Sh. Babu Lal @ Babu Khan, 
S/o Sh. Ibrahim, 
Shop no. 1 (Private) Ground floor, 
F­14/20, Model Town­II, 
Delhi­110009.

Also At:­
M/s Capital Dyeing Works,
E­51, Sector­VII, Noida,
District Ghaziabad, UP.

Date of Institution: 23.4.2007
Judgment Reserved:1.9.2007
Date of Judgment: 18.9.2007
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ORDER

1. This Rent Control appeal has been filed by the landlord against the judgment/order dated 16.3.2007 passed by ARC Delhi in eviction suit no. 295/06/00 whereby, the ld. ARC while allowing the petition filed by the appellant u/s 14(1) (a) of the DRC Act kept the matter for considering as to whether the respondent is entitled to the benefit of section 14(2) of the DRC Act. However, in the same order, the petition on the ground of subletting, misuser and causing substantial damage to the suit property by the respondent was dismissed. The appellant is aggrieved from the entire order in this appeal.

2. Briefly stating the facts are that the original eviction petition was filed by one Shri Banarsi Lal Gulati through attorney to Shri S.P. Minocha who was substituted as the petitioner in place of Sh. B.L. Gulati during the course of pendency of the petition in 3 his own right. Eviction of the respondent was sought on four grounds i.e.

a) Non payment of rent.

b) Subletting

c) Misusing the suit property

d) causing substantial damage to the property without the consent of the landlord.

3. Regarding non payment of rent, the trial court held that the appellant failed to pay/tender the arrears of rent within two months of the demand notice and thus was a defaulter. The trial court modified the order u/s 15(1) of the DRC Act by the impugned order within one month of the impugned order and kept the matter pending for deciding as to whether the respondent is entitled the benefit of section 14(2) of the DRC Act or not.

4. About subletting, it was alleged by the appellant that the respondent sublet, assigned or otherwise parted with the possession 4 of the suit property to Shri N.P.Sehti and Shri Nizam without the consent of the appellant in writing. It was also alleged that both of them were running their business from suit property under the name and style of Janta Dyers and Dry Cleaners. It was also pleaded that after subletting the suit premises the tenant started his own business under the name and style of M/s Capital Dyeing Works at different place. The allegations were denied by the respondent who stated that he was the proprietor of the business being run in the suit premises and that Nizam his younger brother used to help him in the business.

5. The trial court in the impugned order observed that the appellant failed to prove his case to prove subletting, assigning or otherwise parting with the possession of the suit premises as alleged. In this regard, reliance was placed on the record produced by the witnesses examined by the appellant namely PW4 Shri Yash Pal who produced the application made by the respondent to the 5 MCD for issuance of trade license and dry cleaners and the statement made by PW7 Ms. Rajni, Junior Law Officer from MCD who produced certain complaints made by Shri S.P. Minocha against the respondent for running of Janta Dyers and Dry Cleaners without the requisite license. The trial court also referred to the cross­examination of PW9 Shri S.K.Bajaj who also admitted that Shri Babu Lal the respondent was the proprietor of the business being run under the name and style of Janta Dyers and Dry Cleaners and also Capital Dyeing Work at Noida. In view of the above, trial court held that there was not even iota of evidence that either the alleged subtenants were in exclusive possession or that the respondent divested himself of the possession of the property u/s 14 (2)(b) of the Act.

6. Regarding, misuser, it was held that in the eviction petition nowhere it was pleaded by the appellant that the premises was let out for the purpose of dyeing clothes. Shri. S.P.Minocha who 6 appeared as a witness on behalf of the appellant as AW1 failed to depose adduce that there was a change of user by the respondent, or that the change of user was of such a nature which created public nuisance or caused damages to the suit property or was otherwise detrimental to the interest of landlord which were the essential ingredients to seek eviction of the tenant u/s 14(1)(c) of the DRC Act.

7. Ld. Counsel for the appellant submitted that specific averments have been made by the appellant in paragraph 18(a) (v) of the eviction petition that the respondent had been using water and was storing chemical in the suit premises and thereby creating unhygienic condition which causes damage to the property. Due to dyeing and dry cleaners business, smoke and bad smells prevails resulting in building to face a public nuisance. However, no evidence has been led by the appellant in this regard in as much as except AW1 and AW2 no other person from the locality were 7 brought in the witness box. Moreover, Ex. PW7/A which is a report about the inspection of the suit property by the official of MCD on a complaint made by Shri. S.P.Minocha reveals that no smell of any chemical was found to be prevailing. It also says that neither any chemical were found lying outside nor water was accumulated there. Thus, the trial court believing the report of PW7 held that no inconvenience was being caused to the persons using road in and around the shop. Moreover, it was also observed by the trial court, that the ingredients of section 14(5) of the DRC Act essential for passing an order of eviction u/s 14(1)(c) there was change of user were completely missing and thus she also dismissed the suit even under section 14(1)(c) of the DRC Act.

8. As regard the ground u/s 14(1) (j) of the DRC Act is concerned, the case of the appellant was that on account of covering of the verandah in front of the shop by installing two big iron shutters one on the Eastern side and other from the Southern side, 8 the respondent caused substantial damages to the suit property by removing the wooden chaukhat without the consent of the appellant. In this regard, AW1 deposed that open verandah was covered by the respondent installing two big iron shutters. Reliance was also placed sanctioned plan of the building produced by PW3 Shri M.R.Zaidi, JE Building from MCD which is Ex. PW3/1 and goes to show that in front of shop no. 1 there is a verandah. In his cross­examination Shri Jaidi admitted that he never visited the suit property and therefore, the trial court failed to rely upon his testimony and held that it was not relevant for proving any damage to the suit property. As regard statement of PW2 Shri B.M. Gupta who was a neighour and stated that there was a wooden door in the shop in front of the shop where there was a verandah and that shutters were installed after removing the wooden board it was observed that he also said that he was not aware as to who has done. No specific evidence which may establish as to when the verndah 9 was covered and shutters were affixed or that putting up of a shutters impaired the value of the suit property was produced on record. Rather, AW2 stated that by covering the verndah the value of premises has increased and there is no difference in the look of that building. In the cross­examination AW1 also admitted that he himself had installed channel gate in front of the verandah of his house at point B as shown in the plan Ex. AW1/R1 but no damage was caused to the suit property by affixing the channel gate.

9. Making above observations and relying upon the judgment Hon'ble High Court of Delhi in the case of Suraj Prakash Chopra Raj Kumar Vs. Baij Nath Dhawan & Anr., it has been observed that firstly, there is no evidence led which may go to show that there was an impairment in the value of the suit premises or that the affixation of the shutter was made without the consent of the landlord. It was also observed, that affixation of shutters no way cause damage to the suit property either from commercial angle or 10 from the monetary point of view.

10. It has been argued on behalf of the appellant that the aforesaid order of the trial court is untenable in law. In the appeal they also referred to previous litigation which took place between the parties and relied upon the order of Shri R.K. Sharma, ARC who allowed the eviction petition and whose order in appeal was set aside by Shri S.M. Chopra, the ld. ARCT vide order dated 14.9.2005. In view of he orders of the Appellate Court no reliance can be placed upon the order passed by Shri R.K. Sharma, ARC. In addition to that the appellant also referred to the litigation resulting in a compromise between the parties on 08.10.1986. However, it is unexplained as to how that compromise helps the appellant. The appellant also referred to filing of a civil suit against the respondent for restraining him for using the suit premises to carry out the business of dying and dry cleaners but failed to placed on record the final result of those proceedings. Admittedly, exparte order of 11 injunction was set aside.

11. As regard non payment of rent it is submitted that besides not making payment within two months of the receipt of the demand notice the appellant also failed to comply with the order u/s 15(1) of the DRC Act and on 13.8.1996 his defense was also struck off which order was admittedly set aside by the Appellate Court. The Hon'ble High Court also the order of the Appellate Court. Despite that the appellant has tried to assail the validity of those orders and this appeal which cannot be done. It is stated that the respondent committed not only first default but also second default. This argument is completely mis­conceived as the case has been kept pending for considering issue of section 14 (2) of the Act.

12. The appellant assailed the impugned order by submitting that the order is bad both on facts and Law in as much as the trial court failed to appreciate the pleadings, documents and evidence of the appellant in the right perspective which has resulted in the 12 discourage of justice. It is stated that all the essential ingredients to prove sub­letting has been proved on record yet the trial court has dismissed the suit.

13. It is submitted that in the written statement the respondent nowhere pleaded that Nizam was his younger brother and who used to help him in the business. The onus to prove this fact was also not discharged by him. As regard Sh. N.P. Sethi, the respondent in the written statement stated that Sh. N.P. Sethi has no concern in the business and in the cross­examination stated that he is worker. This contradiction should have been considered by the trial court by holding that it was a case of sub­letting. It is submitted that PW 2 categorically stated that Nizam is running the shop in dispute. Yet, he was not cross­examined on this aspect. It proves that the suit shop is under the control and possession of Nizam andas such the same was sub­let, assigned and / or otherwise the possession has been parted with the Nizam within the meaning of section 14(1)(b) 13 of the Act without the consent of the respondent. In this regard, appellant also want this Tribunal to go through the following portion of the statement made by the respondent in his cross­ examination :­

a) Page 5 (lines 2 to 6):­ "After I leave the shop at 12Noon Nizam sits at the shop. I give some of my clothes for dying to Nizam and pay him for his service. It is correct that Nizam book all the orders in my absence".

b) Page ­4 (line 8 from bottom):­ "It is correct that I pay labour charges to Nizam. I do not pay any salary to him".

c) Page - 7 (line 2) :­ "It is incorrect that I do not pay anything to Nizam ............ I show the amount paid to Nizam in my income­tax return ............."

14. It is submitted that respondent has not produced any document to support his case and therefore has failed to discharge the onus which was shifted upon the respondent to show that Nizam was not a sub­tenant. It is submitted that copies of Income­tax return filed by the respondent do not show the payment/salary given to Nizam. It is also submitted that in his cross­examination, the 14 respondent also admitted address of M/s Capital Dyeing Works, is that of the suit shop along with telephone number (Ex.RW1/P3). He also admitted that there are 6 Directors (RW1/P­6) of M/s Capital Dyeing Works. He also admitted receipt of letter Ex.RW1/P7 at the address of the suit premises. It is also submitted that this admission of the respondent goes to show that suit property was sublet to M/s Capital Dyeing Works also. It is stated that the trial court has ignored the statement of PW 2 Sh. B.M. Gupta who stated that presently Nizam is running the shop in dispute where testimony is un­rebutted. It is stated that as held by the Hon'ble High Court of Delhi in the case of Gobind Parshad Jagdish Parshad Vs. Sh. Hari Shanker & Ors. reported in 136 (2007) Delhi Law Times 259, the onus to explain the presence of third parties i.e., as to whether they were employees as claimed by the sub tenant is always upon him by producing registers/ accounts books etc. If such evidence is not lead the Controller can take an 15 adverse view of the matter. It is stated that in the present case the respondent having failed to lead any evidence to show status of Nizam despite admitting his presence in the suit property must be presumed to have sub­let the same to Nizam. It is also submitted that while the trial court has taken note of the subsequent facts as brought on record by the respondent in his application u/s 151 CPC but has failed to look into the allegations made by the appellant that the premises have also been sub­let to one Rafique and Ram Kumar. It is also been submitted that statement of PW 4 and PW 7 has also been appreciated by the trial court in right perspective who were only produced to show that the business of Janta Dyeing and Dry Cleaners was being run by the respondent without license.

15. As regard mis­using it is submitted that the suit property was let out to the respondent by Sh. Banarsi Lal Gulati, the previous owner for storing the dyeing clothes as mentioned paragraph 18(a)

(v) of the eviction petition. Admittedly the respondent has changed 16 his business from storing of dyeing clothes to Dyers and Dry Cleaners as admitted in the written statement and thus it was the case of mis­user in as much as the business of dyeing and Dry cleaners without license. More so when their request for grant of license was rejected. It is also stated that despite notice served upon the respondent dt. 24.8.90 (Ex.AW1/2), the respondent did not stop the mis­user within 30 days and therefore the appellant was within his rights to file the suit for eviction against mis­user. In this regard, reference has also been made to the ex parte Judgment/decree dt. 21.2.95 passed by Sh. Dharmesh Sharma Civil Judge, Ex.PW1/8 despite admitted that the ex parte decree was set aside by the appellate court. It is also submitted that fact of change of use of the premises has been proved by the witnesses examined by the appellant PW2, PW 4, PW 7 and PW 9 yet the trial court has not considered these aspects.

16. As regards causing substantial damage it is stated that 17 causing substantial damages stands proved as per the statement of appellant AW 1 and other witnesses. It is also submitted that report of Sh. M.R. Zaidi Ex.PW3/1 proves that there was open verandah in front of the suit shop. It does not matter that he personally visited the shop or not because this fact is corroborated by sanctioned building plan. It is stated that in view of that covering verandah and raising shutters was an act of causing substantial damage to the suit property. Reference has been made to the following Judgments:­ i. (1996), 2, SCC 626 Gurbachan Singh Vs. Shivalik Rubber Industries.

ii. (1980), 2, RCJ, 1, Kartar Singh Vs. Kesar Singh. iii. (1981), CLJ (Civil) 414, Narain Singh Vs. Bakson Laboratories.

17. It is submitted that the Judgment delivered in the case of Suraj Prakash Chopra Raj Kumar Vs. Baij Nath Dhawan & Anr. reported in 103(2003) Delhi Law Times 645 was and not applicable to the facts in issue in as much as the respondent has 18 covered/included verandah in the shop after installing two iron shutters to enjoy that portion of the property though not under the tenancy which was not the case in the case of Suraj Prakash (Supra). It is submitted that in the earlier eviction petition which was compromised by the parties in 1986 it has come on record that there used to be verandah which goes to show that the additions and alterations have taken place only subsequent there to despite undertaking of the respondent before Sh. A.K. Garg, Ld. Addl. Rent Controller that he would not make any additions/alterations in the shop including verandah.

18. Ld. Counsel for the respondent on the other hand has refuted all the allegations made by the appellant and has submitted that there is no infirmity in the Judgment of the trial court which is supported by evidence which came on record. It is submitted that the trial court has appreciated the evidence correctly and that this Tribunal while exercise power u/s 38 of the Delhi Rent Control Act 19 should not interfere in the Judgment of the trial court on facts. It is stated that no question of law has been raised by the appellant in this appeal and therefore the appeal deserves dismissal.

19. I have considered the rival contentions of the parties and have perused the record. I may observe that the reliance by the appellant in respect of orders passed by Sh. R.K. Sharma, the then Addl. Rent Controller is of no help to him in as much as the said order was reversed by Sh. S.M. Chopra, Addl. Rent Controller Tribunal who remanded the case to the Controller. The Controller thereafter has decided the dispute by well written judgment.

20. Similarly, the reliance made by the appellant on the Judgment of Sh. Dharmesh Sharma, Civil Judge, Delhi who passed exparte decree in favour of the appellant to restrain the respondent from using the suit property from the business of dyeing and Dry cleaners is again of no use for the simple reason that admittedly the said Judgment was set aside.

20

21. Similarly, the submissions made by the appellant regarding the orders passed by Hon'ble High Court holding order of Sh. S.M Chopra, Addl. Rent Controller in reversing the order striking of the defence of the respondent on the basis of commission of certain defaults in complying with the order passed u/s 15(1) of the Delhi Rent Control Act is of no help to the respondent in as much as per scheme of the Delhi Rent Control Act, benefit of section 14(2) of the Delhi Rent Control Act can be made available only to the tenant in compliance with the order u/s 15(1) of the Act substantially. The court of Rent Controller / Addl. Rent Controller while considering issue of grant or non grant of benefit u/s 14 (2) of the Delhi Rent Control Act is competent to take into consideration all the aspects of the matter including the defaults committed by the tenant. This matter has been kept by the trial court as is clear from the order passed by Addl. Rent Controller dt. 16.3.2007 and therefore no grievance can be made by the appellant in this regard. 21

22. As regarding sub­letting I find that in the statement of the respondent it has come on record that Nizam is related to the respondent as his brother who helps him in doing his business in the suit property. In these circumstances, the presence of Nizam can not be considered as that of a third party merely because Nizam takes certain clothes for dying on payment of labour charges from the suit property. The trial court has discussed the evidence which has come on record including the statement of the witness produced by the appellant which goes to show that the business of Janta Dyers and Dry Cleaners is the business of Sh. Babu Lal the respondent/tenant who was running the same a s a proprietor. The complaints filed by Sh. S.P. Minocha also goes to show that the appellant also admitted that business of the M/s Janta Dyers and Dry Cleaners is that of Banarsi Lal and not of third party. Reference made by the Ld. Counsel for the appellant in the cross­ examination of the appellant on the point of sub­letting about the 22 presence of Nizam again does not support his contentions that the suit premises is in exclusive possession of the Nizam or Sh. N.P. Sethi. In these circumstances when the initial onus could not be discharged by the appellant to show that Nizam or Sh. N.P. Sethi were sub­lettees or were in exclusive physical possession of the suit property to the exclusion of the respondent, it can not be said that it was a case of sub­letting. Coming to using address of the suit property as address of M/s Capital Dyeing Works is not sufficient to prove sub­letting, as long as the respondent kept physical possession of the suit property with him as there is nothing on record which may establish that the respondent divested himself of the possession of the suit property or was not in legal control of the possession of the property itself an essential requirement of sub­ letting.

23. As regard the issue of mis­user, I fully endorse the observation of the trial court that in the present case appellant failed 23 to prove the essential ingredients which may have entitled him to seek an order of eviction in as much as the witnesses produced by the appellant failed to show that the user of the premises for doing the business of Dyeing and Dry cleaners was in any way a public nuisance or caused damages to the premises or was otherwise detrimental to the interest of the landlord. More so when that business is no more going on in the suit property. It may be observed here that ground u/s 14 (1)(c) is circumscribed by the veto prescribed u/s 14(5) of the Delhi Rent Control Act. In the present case onus to prove initial conditions on the appellant which as per the observations made in para 21 and 22 of the Judgment were not satisfied. The relevant paragraphs are reproduced:

"The petitioner has, however, not lead any evidence to establish the aforesaid contentions raised in the eviction petition. No resident of the locality has been brought into the witness box to depose that any public nuisance is being created by running of business of dyeing and dry 24 cleaners. AW 2 who was brought into the witness box is stated to be resident in the neighbour has not even whispered that the running of the said business by the respondents is causing any kind of public nuisance to the residents of the locality. On the contrary, the Petitioner's own documents Ex. PW7/A would reveal that at the time of inspection of property by the concerned officer of MCD on the complaint made by Sh. S.P. Minocha on 23.2.2000 no smell of any chemical was found to be prevailing and no goods were found lying outside the shop on footpath nor any water was found accumulated outside. It was also stated in the statement of inspection officer that no inconvenience was being caused to the persons using road in and around the shop.
Considering the aforesaid evidence and the material on record and in the light of aforesaid discussion, I am of the considered opinion that the Petitioner is unable to prove his petition on this ground of eviction u/s 14 (1)(c) of the Act. I am supported by Judgment titled as Pushpa Devi Vs. Om Prakash 79 RLR 414 wherein it has been held that tenant is liable to eviction u/s 14 (1)(c) and Section 14(5) only if misuser complained of amounts to public nuisance and he does 25 not stop the same after notice u/s 14(5).
Nuisance must be public nuisance and not merely private. Misuser detrimental to interest of landlord means that either the property or the reputation of the landlord is in jeopardy. The words used in Section 14 (5) of the Act are 'public nuisance' and not 'nuisance'. It is clear that the requirement of the law is that the nuisance falling within the mischief of the section is not private nuisance/common nuisance affecting the neighbourhood and the residents of the locality. There was no particulars of public nuisance stated in the landlady's petition nor is there any independent evidence adduced by the landlady for establishing public nuisance."

24. Now coming to causing substantial damage to the suit property it has been observed by the trial court that no evidence has been lead by the appellant as to whether the respondent covered the verandah and that put up iron shutter and when it is true that as per report of PW 3 as per the sanctioned plan there used to be verandah outside the shop in question. However if verandah has been 26 covered by using two shutters it does not mean that the property has been damaged or that it has caused substantial damage which is an essential ingredients to invoke the benefit of section 14 (1) (j) of the Delhi Rent Control Act.

25. Ld. Counsel for the appellant submitted that the Judgment relied upon by the respondent in the case of Suraj Prakash Chopra Raj Kumar Vs. Baijnath Dhawan & Anr. (Supra) was not applicable to the facts of this case. However, perusal of this Judgment goes to show that Hon'ble Mr. Justice M.A. Khan in the aforesaid Judgment has referred about 17 Judgments including the Judgments on which the appellant wanted to rely upon i.e., the case of Kartar Singh Vs. Kesr Singh and Another, Dewan Chand Vs. Babu Ram, Gurbachan Singh Vs. Shivalak Rubber Industries as well as other Judgments. After taking note of the aforesaid Judgments Hon' ble Mr. Justice M.A. Khan summarised the law with regard to causing substantial damage to the tenanted property by the tenant and its effect in the 27 following words:­ "Analysis of the case law cited on behalf of both the parties, as notice above proposition of law may be summarized as under:

the onus of proving that the tenant has caused substantial damage to the demised premises is upon the landlord;
landlord must prove that addition and alteration in the tenancy premises is carried out by the tenant;
tenant has made his construction without the consent of landlord;
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; 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;
landlord has to prove it by cogent evidence and wherever necessary expert witness should be examined;
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;
28
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 utilization aspect of the building;
a temporary alteration or addition which can be easily repaired without causing damage to the structure is not substantial damage to the tenancy premises;
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 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.
Examining the facts of the case on the touchstone the above proposition of law it may be noticed that the tin­shed is of temporary nature. It has not been built up by digging foundation or erecting walls. It has no pucca structure. The tin­sheets are resting on the existing walls of the building. May be the girdar is used in the erection work but there is no evidence leading to inference that the use of the girdar in the erection work has increased the weight upon the load bearing wall to endanger or it has brought about weakness in the existing pucca construction of the building. The tin­ 29 sheet has not caused any damage to the walls on which it is resting. It can be removed easily without causing damage to the main building. It is not understood as to how the Controller and the Tribunal on these facts could draw an inference that a mere tin­sheet covering a portion of the courtyard, or even major portion, could have impaired the value or utility of the premises or could fall within the mischief of substantial damage for which the tenant may be evicted under clause (j). The additions and alterations which cause impairment in the value and utility of the premises, no doubt, are to be reviewed from the point of view of the landlord but temporary shed of the nature which is in existence in the courtyard would by no stretch of reasoning be said to have caused damage much less substantial damage to the demised premises covered by Clause (j) if it is viewed in the light of the case law cited above.

26. In the present case, the appellant has failed to prove as to what the tenant made construction which has effected the tenanted premises or that those additions and alterations have materially impaired value and utility of the suit premises. 30 Dated: 13.9.2007 (M.C.GARG) ADDL. RENT CONTROL TRIBUNAL DELHI.

31

5.9.2007 Present: Counsel for the parties.

No time left. Put up on 10.9.2007 for order.

ARCT/5.9.2007 10.9.2007 Present: Counsel for the parties.

Order not ready. Put up on 13.9.2007 for order.




                                                 ARCT/10.9.2007

13.9.2007

Present:    Counsel for the parties.

Vide separate order passed, the appeal filed by the appellant is dismissed and the order of the trial court is upheld with the modification to the extent that the suit filed by the appellants even on the ground of non­payment of rent is dismissed with no order as to the cost. Copy of the order be sent to trial court along with trial court record. Appeal file be consigned to the record­room.

ARCT/13.9.2007