Delhi District Court
Sh. Radha Kishan Poddar (Since ... vs Sh. Om Prakash Aggarwal on 16 April, 2018
IN THE COURT OF SHRI TALWANT SINGH
DISTRICT & SESSIONS JUDGE (HQs)
RENT CONTROL TRIBUNAL
TIS HAZARI COURTS, DELHI
CNR No.: DLCT010007482012
RCT No. 30301/2016
1. Sh. Radha Kishan Poddar (since deceased)
Represented by LR:
Sh. Jagdeep Poddar (son)
S/o Late Radha Krishan Poddar
R/o Flat No. 2, III Floor,
B8, Vivek Vihar PhaseI, Delhi110095.
2. Sh. Kamal Kishore Poddar
S/o Late Jugal Kishore Poddar
3. Smt. Sushma Poddar
W/o Sh. Kamal Kishore Poddar
Both R2 & 3 R/o 534, Chandanwari
Apartments, Plot No. 8, Sector 10
Dwarka, New Delhi. .....Appellants
Versus
1. Sh. Om Prakash Aggarwal
S/o Sh. Rukma Nand Aggarwal
Shop No. 5179C, Lahori Gate
Naya Bazar, Delhi110006.
RCT No. 30301/16, 30309/16 & 30439/16 Page 1 of 14
Radha Kishan Poddar & Ors. v. Om Prakash Aggarwal & Anr.
Radha Kishan Poddar & Ors. v. Pawan Kumar More & Ors.
Radha Kishan Poddar & Ors. v. V.C. Jain & Anr.
2. Sh. Sh. Hari Shankar Poddar
S/o Late Lachhmi Narain Poddar
R/o A309/1, Derawal Nagar
Model Town, Delhi110009. .....Respondents
Date of filing of Appeal : 09.07.2012
Date of reserving Order : 06.03.2018
Date of Order : 16.04.2018
CNR No.: DLCT010008062012
RCT No. 30309/2016
1. Sh. Radha Kishan Poddar (since deceased) Represented by LR:
Sh. Jagdeep Poddar (son) S/o Late Radha Krishan Poddar R/o Flat No. 2, III Floor, B8, Vivek Vihar PhaseI, Delhi110095.
2. Sh. Kamal Kishore Poddar S/o Late Jugal Kishore Poddar
3. Smt. Sushma Poddar W/o Sh. Kamal Kishore Poddar Both R2 & 3 R/o 534, Chandanwari Apartments, Plot No. 8, Sector 10 Dwarka, New Delhi. .....Appellants Versus
1. Sh. Pawan Kumar More RCT No. 30301/16, 30309/16 & 30439/16 Page 2 of 14 Radha Kishan Poddar & Ors. v. Om Prakash Aggarwal & Anr. Radha Kishan Poddar & Ors. v. Pawan Kumar More & Ors. Radha Kishan Poddar & Ors. v. V.C. Jain & Anr.
S/o Sh. Tara Chand More
2. Sh. Ashok Kumar More S/o Sh. Nagar Mal Both C/o M/s Jyoti Food Grains Shop No. 5179B, Lahori Gate Naya Bazar, Delhi110006.
3. Sh. Sh. Hari Shankar Poddar S/o Late Lachhmi Narain Poddar R/o A309/1, Derawal Nagar Model Town, Delhi110009. .....Respondents Date of filing of Appeal : 09.07.2012 Date of reserving Order : 06.03.2018 Date of Order : 16.04.2018 CNR No.: DLCT010013552012 RCT No. 30439/2016
1. Sh. Radha Kishan Poddar (since deceased) Represented by LR:
Sh. Jagdeep Poddar (son) S/o Late Radha Krishan Poddar R/o Flat No. 2, III Floor, B8, Vivek Vihar PhaseI, Delhi110095.
2. Sh. Kamal Kishore Poddar S/o Late Jugal Kishore Poddar
3. Smt. Sushma Poddar RCT No. 30301/16, 30309/16 & 30439/16 Page 3 of 14 Radha Kishan Poddar & Ors. v. Om Prakash Aggarwal & Anr. Radha Kishan Poddar & Ors. v. Pawan Kumar More & Ors. Radha Kishan Poddar & Ors. v. V.C. Jain & Anr.
W/o Sh. Kamal Kishore Poddar Both R2 & 3 R/o 534, Chandanwari Apartments, Plot No. 8, Sector 10 Dwarka, New Delhi. .....Appellants Versus
1. Sh.V.C.Jain S/o Sh. Ram Swaroop Jain Proprietor M/s V.C. Jain & sons Shop No. 5179A, Lahori Gate Naya Bazar, Delhi110006.
2. Sh. Sh. Hari Shankar Poddar S/o Late Lachhmi Narain Poddar R/o A309/1, Derawal Nagar Model Town, Delhi110009. .....Respondents Date of filing of Appeal : 03.07.2012 Date of reserving Order : 06.03.2018 Date of Order : 16.04.2018 ORDER ON ON APPEAL UNDER SECTION 38 OF DELHI RENT CONTROL ACT, 1958 Vide this common order, I shall dispose off three appeals bearing RCT No.30301/16, 30309/16 and 30439/16 filed by the appellants against three tenants namely Om Prakash Aggarwal, Pawan Kumar More and V.C. Jain & Ors. in respect of shop nos. 5179C, RCT No. 30301/16, 30309/16 & 30439/16 Page 4 of 14 Radha Kishan Poddar & Ors. v. Om Prakash Aggarwal & Anr. Radha Kishan Poddar & Ors. v. Pawan Kumar More & Ors. Radha Kishan Poddar & Ors. v. V.C. Jain & Anr.
5179B and 5179A, Lahori Gate, Naya Bazar, Delhi respectively. Vide common impugned judgment dated 26.05.2012 in all the 3 eviction petitions passed by Ld. ARC/North, eviction petitions filed by the landlords were dismissed under Section 14(1)(j) of the Delhi Rent Control Act (hereinafter referred to as DRC Act).
2. Notices of the appeals were issued to the respondents. Trial Court Record was summoned. I have heard Ld. Counsel for the parties and perused the record.
3. In this case, vide order dated 01.04.1998, evidence was ordered to be recorded in eviction petition No.12/1996 (new E.No. 328/2008) titled "Jugal Kishore Podddar v. Pawan Kumar More & Ors." and copy of the said evidence was ordered to be placed in files of other two eviction petitions. In para No. 15 of the impugned judgment, it is mentioned that a common judgment has been written in all the 3 eviction petitions as almost there are similar grounds of eviction and defence of the tenants is also same.
4. It has been submitted by Ld. Counsel for appellants that on the basis of pleadings and evidence, the landlords/appellants have proved their case that tenants covered verandah, open space chabutra and raised unauthorised construction in the shops in question without any written permission of the landlords. It is further submitted that petitioners had examined 5 witnesses in support of their case, whereas RCT No. 30301/16, 30309/16 & 30439/16 Page 5 of 14 Radha Kishan Poddar & Ors. v. Om Prakash Aggarwal & Anr. Radha Kishan Poddar & Ors. v. Pawan Kumar More & Ors. Radha Kishan Poddar & Ors. v. V.C. Jain & Anr.
tenants examined only one witness and that too their attorney; evidence of attorney can be limited only to the extent of facts in his personal knowledge or borne out from the record. It is further submitted that petition by 2 coowners is maintainable; permission of Slum Authority can not be agitated in the appeal filed by landlords as no crossappeal has been filed by teneants; findings of Ld. ARC that dimension of the premises differ as mentioned in the eviction petition and as mentioned in the site plan, but if proportionate pillars and walls area is counted, then the dimension is correct; as per clause 4 of the Lease Deed, addition is not permissible; substantial damage was caused to the premises by adding Duchhatti and extra load was put on the walls; there is no contradiction in the evidence of AW1 as he has just explained his stand. In appeal No. 30301/2016 against tenant Om Prakash Aggarwal etc., it is submitted that attorney Sanjay Kumar Aggarwal was not present at the time of creating tenancy and he did not know the exact position of Duchhatti. In another appeal bearing RCT No. 30439/16 against tenant V.C. Jain & Anr., it is submitted that teenant himself was in the witness box and his stand was that construction was there from day one, which is falsified by the site plans in the civil suit filed by tenant Pawan More.
5. On the other hand, Ld. Counsel for tenants have submitted that there was no need to show Duchhatti in the Site Plan filed in civil RCT No. 30301/16, 30309/16 & 30439/16 Page 6 of 14 Radha Kishan Poddar & Ors. v. Om Prakash Aggarwal & Anr. Radha Kishan Poddar & Ors. v. Pawan Kumar More & Ors. Radha Kishan Poddar & Ors. v. V.C. Jain & Anr.
suit as it was only for injunction; one of the landlords was living in the same property so they could have taken immediate steps on coming to know of any such construction; no notice was given by the landlords to tenant to stop construction of Duchhatti; clause 4 of the Lease Deed Ex.AW1/6 allows alteration/changes in the premises; size of the shop is 8'x71', but Site Plan Ex.AW1/4 is not as per Lease Deed; it was a Sale Transaction; considerable amount was paid by the tenants to buy the shops but somehow the deal did not mature; a bank had sued the landlords, so they filed the eviction petitions; 3 owners did not file the eviction petition as one owner has been shown as respondent No.3 and as such eviction petitions were not maintainable; tenancy can not be terminated by one of the coowner; tenants have shown correct length in site plan Ex.AW5/2 filed in the civil suit; no unauthorised construction was raised by the tenants, rather it was already there at the time of leasing out the premises to the tenants.
6. This property was purchased by the landlords vide sale deed dated 16.04.1960 and there was one hall/ big shop on the ground floor in property No.5179, Naya Bazar, Delhi. As per landlords, said property was partitioned into 3 different shops and leased out to 3 different tenants vide lease deeds dated 13.07.1990 and one such lease is Ex. AW1/6. This Lease Deed also mentions that ground floor of the said property was divided into 3 shops by giving numbers RCT No. 30301/16, 30309/16 & 30439/16 Page 7 of 14 Radha Kishan Poddar & Ors. v. Om Prakash Aggarwal & Anr. Radha Kishan Poddar & Ors. v. Pawan Kumar More & Ors. Radha Kishan Poddar & Ors. v. V.C. Jain & Anr.
5179A, 5179B and 5179C. Clause 4 of this Lease Deed gives power to the lessee to make alteration/changes in the premises without further permission of the lessors and to use the leased premises for any business. The allegation that Duchhatti (mezzanine floor) was constructed in the shop is very well covered in this clause, which gives right to the lessee to make alternation/ changes in the said premises for its better enjoyment. Size of the shop mentioned in the Lease Deed is 8' x 71'feet. So the contention of the appellant that respondents/tenants had covered the Verandah and Chabutra and had extended the shop by fixing the shutters is without any basis as size (total length) of the said shop as per Site Plan Ex. AW1/4 is 71 feet and it is nowhere stated as to where were the gates of shops fixed.
7. As far as construction of Duchhatti (mezzanine floor) is concerened, the eviction petition was filed in the year 1996, which states that respondents (tenants) had rently unauthorizedly constructed the said Duchhatti (mezzanine floor). The literal meaning of 'recently' is that said construction was made a few days/months ago. The stand of the tenants is that said Duchhatti (mezzanine floor) was constructed prior to the shops leased out to them and they had not made any new construction. AW1 Sh. Radha Kishan Poddar has stated in his examinationinchief that tenant had made unauthorized construction without getting permission from the petitioners and RCT No. 30301/16, 30309/16 & 30439/16 Page 8 of 14 Radha Kishan Poddar & Ors. v. Om Prakash Aggarwal & Anr. Radha Kishan Poddar & Ors. v. Pawan Kumar More & Ors. Radha Kishan Poddar & Ors. v. V.C. Jain & Anr.
when the petitioners received notice from MCD in that regard and House Tax was enhanced on account of construction of Duchathi (mezzanine floor) in the shops in question and owning to said construction, the property in question was damaged.
8. Reliance has been placed by Ld. Counsel for the appellants on a judgment titled Shakuntala Devi vs. Avtar Singh [S.A.O 171 of 1998], decided by Hon'ble High Court of Delhi on 18.08.2004. In the said case, tenant was misusing the premises for commercial purpose, whereas the premises were let out for residential purpose, which was not stopped by tenant despite notice. The tenant had allegedly caused substantial damage to the premises by constructing one Parchhati inside one room of the tenanted premises without permission of the landlord. However, ratio of this judgment is not applicable to the facts of present cases because it is not a case of misuser of the premises in the case. Moreover, it has not been proved by the landlord that tenants had raised construction of Duchhatti in the shops.
9. Another allegation of landlords is that level of the shop in question was lowered by 1 1/2 or 2 feet. No permission was given for any such unauthorised construction. In crossexamination, AW1 had stated that they had purchased property No. 517980, Naya Bazar, Delhi vide Sale Deed dated 16.04.1960 and ground floor at that time RCT No. 30301/16, 30309/16 & 30439/16 Page 9 of 14 Radha Kishan Poddar & Ors. v. Om Prakash Aggarwal & Anr. Radha Kishan Poddar & Ors. v. Pawan Kumar More & Ors. Radha Kishan Poddar & Ors. v. V.C. Jain & Anr.
consisted of one shop measuring 30' x71' with stairs leading to upper floor. At that time, the shop was not having any intervening walls, however, there were 3 gates in the shop at that time. AW1 had admitted that on 13.07.1990, the landlord had inducted 3 tenants in the aforesaid shop after partioning the said shop into 3 parts and giving them individual numbers 5179A, 5179B and 5179C respectively. When the original shop was partitioned into 3 parts, only 2 partition/intervening walls were constructed dividing one single shop into 3 shops lengthwise, then how the length of the shops was shortened as claimed by the appellants but there is no explanation in this regard either in the pleadings or evidence of the landlord.
10. As far as construction of Duchhatti (mezzanine floor) in the shops is concerned, as per appellants, construction was carried out in the year 199293. AW1/appellant had relied upon a notice of MCD, which is Ex.AW/15. This notice is dated 27.03.1992 and purposed rateable value was increased to Rs.33,130/ from existing rateable value of Rs.3130/ and reasons given was addition of Duchhatti (mezzanine floor) in 3 shops. As per this notice, the rateable value was enhanced due to construction of Duchhatti (mezzanine floor) w.e.f. 01.04.1991. The property was given on rent on 13.07.1990. The contention of the appellant that construction of Duchhatti (mezzanine floor) was started in the year 1992 and it was completed RCT No. 30301/16, 30309/16 & 30439/16 Page 10 of 14 Radha Kishan Poddar & Ors. v. Om Prakash Aggarwal & Anr. Radha Kishan Poddar & Ors. v. Pawan Kumar More & Ors. Radha Kishan Poddar & Ors. v. V.C. Jain & Anr.
in the beginning of 1993 is contradicted by this document Ex.AW1/5 and it negates stand of the appellants that construction was raised in the year 199293. On the other hand, contention of the tenants is that they had not raised any unauthorised construction in the premises in question. They had taken premises in question on rent on 13.07.1990 and loft (Duchhati) was raised by the landlord prior to leasing of the shop to the tenants.
11. AW2 Sh. Sudeshi Ram, record keeper of MCD, deposed that inspection was carried out in the property on 13.03.1992 and as per inspection report, Duchatti had been constructed in the property in question. So, the contention of the appellant (AW1) that unauthorised construction was raised in the year 199293 is negated by AW2, who had stated that constructon was carried out prior to 13.03.1992 and the shops were leased out on 13.07.1990.
12. RW1 Vinod More had denied the suggestion that tenants had raised any unauthorised construction in the said property and he voluntarily added that condition of the shop is same as it was at the time of leasing out the shop. He denied that any notice regarding unauthorised construction was recieved by the landlord from MCD.
13. As per appellants, their family members were residing on the upper floor of the shops in question. In crossexamination, AW1 had admitted that MCD had not served any notice regarding RCT No. 30301/16, 30309/16 & 30439/16 Page 11 of 14 Radha Kishan Poddar & Ors. v. Om Prakash Aggarwal & Anr. Radha Kishan Poddar & Ors. v. Pawan Kumar More & Ors. Radha Kishan Poddar & Ors. v. V.C. Jain & Anr.
unauthorised construction in the property and he voluntarily added that MCD gave notice for enhancement of House Tax w.e.f. 01.04.1991 for construction Duchhatti (mezzanine floor) in the 3 shops. He admitted that landlords had not filed any complaint with MCD or Police but Legal Notice was served on 16.01.1996 before filing of eviction petition. He had not seen any unauthorised construction in the property in question, rather his brother and son Jagdeep had told him about construction in the building. No notice was served by the DDA regarding violation of terms of Lease Deed. He admitted that Inspector of the MCD had visited the shops in question in the beginning of 1992 and notice was served on his family members. He admitted that combined area of the shops is 30'x71' and Verandah and Chabutra were also covered in it. Combined reading of the evictin petition and evidence of AW1 as well as other witnesses produced by the appellants show that since tenanted shops were having length of 71 feet but appellants failed to prove the exact location of doors/gates when the shops were given on rent; as per appellant as well as AW2 the premises were inspected by House Tax Department on 13.03.1992, so contention of the appellant in the petition filed in 1996 that recently the tenanted had covered Verandah and Chabutra and they had fixed shutters as well as constructed Duchhatti (mezzanine floor) is negated by their own evidence of the RCT No. 30301/16, 30309/16 & 30439/16 Page 12 of 14 Radha Kishan Poddar & Ors. v. Om Prakash Aggarwal & Anr. Radha Kishan Poddar & Ors. v. Pawan Kumar More & Ors. Radha Kishan Poddar & Ors. v. V.C. Jain & Anr.
appellants and the witnesses examined by them. The landlord tried to improve upon his stand and had stated in his evidence that construction of Duchhatti (mezzanine floor) started in the year 1992 and continued till 1993, whereas in the inspection carried out on 13.03.1992, Duchhatti (mezzanine floor) was existing and MCD proposed to revise the assessment of House Tax in view of construction of Duchhatti (mezzanine floor) w.e.f. 01.04.1991. As mentioned earlier the premises were leased out on 13.07.1990. The defence raised by the tenants that they have not made any addition/alteration in the premises and shops were given to them after raising parition walls as well as fixing shutters and construction of Duchhatti (mezzanine floor) is to be believed and Ld. ARC has rightly held that petitioners/landlords have failed to prove their case under Section 14(1)(j) of the DRC Act against all the three tenants of shops.
14. In view of above discussion, I hold that there is no illegality or imfirmity in the impugned judgment. Appeals have no merits. Same are accordingly dismissed. A copy of this order be also placed in files of other two appeals. TCR be sent back along with copy of the order.
Appeal files be consigned to record rooms.
RCT No. 30301/16, 30309/16 & 30439/16 Page 13 of 14Radha Kishan Poddar & Ors. v. Om Prakash Aggarwal & Anr. Radha Kishan Poddar & Ors. v. Pawan Kumar More & Ors. Radha Kishan Poddar & Ors. v. V.C. Jain & Anr.
Digitally signed by TALWANT TALWANT SINGH
SINGH Date: 2018.04.17
17:23:12 +0530
Announced in the open Court (TALWANT SINGH)
Dated: 16th April, 2018 District & Sessions Judge (HQs)
Rent Control Tribunal
Tis Hazari Courts : Delhi
RCT No. 30301/16, 30309/16 & 30439/16 Page 14 of 14
Radha Kishan Poddar & Ors. v. Om Prakash Aggarwal & Anr. Radha Kishan Poddar & Ors. v. Pawan Kumar More & Ors. Radha Kishan Poddar & Ors. v. V.C. Jain & Anr.