Delhi District Court
) Shiv Kumar vs Sh. Babu Lal Goel on 22 August, 2007
1
IN THE COURT OF SHRI M.C.GARG, ARCT, DELHI
RCA:53/07
Sh. Sita Ram Jaiswal (deceased)
Through Legal Heirs
1) Shiv Kumar
S/o Late Sh. Sita Ram Jaiswal
2) Smt. Mangla Devi
Wd/o Sh. Sita Ram Jaiswal
Both resident of
Village Tatiri Aggarwal Mandi,
District Baghpat, UP.
3) Smt. Chander Kala
W/o Sh. Ram Singh Chauhan,
D/o Late Sh. Sita Ram,
R/o Ist floor, B2/21, PhaseII,
Ashok Vihar, Delhi110052.
4) Smt. Kanta Devi
W/o Sh. Ranvir Singh
D/o Late Sh. Sita Ram Jaiswal
R/o Village Tera, District Baghpat, UP.
5) Smt. Radha Rani,
W/o Sh. Pratap Singh
D/o Late Sh. Sita Ram Jaiswal
R/o WZ5, Tatarpur, New Delhi110027.
2
6) Smt. Usha Rani
W/o Sh. Oudh Behari Lal
D/o Late Sh. Sita Ram Jaiswal
R/o WZC106/7,
Flat No. 1, Shiv Shakti Apartment,
Naraina Village,
New Delhi110028.
7) Smt. Hem Wati,
W/o Sh. Naresh Kumar,
D/o Late Sh. Sita Ram Jaiswal
R/o 4550, Arya Pura, Sabzi Mandi,
Delhi.
8) Smt. Sushma Rani,
W/o Sh. Ashwani Kumar,
D/o Late Sh. Sita Ram Jaiswal
R/o WZ38, Naraina Village,
New Delhi2.
9) Smt. Santosh Devi,
W/o Sh. Anand Pal,
D/o Late Sh. Sita Ram Jaiswal
R/o WZ186, Naraina Village,
New Delhi.
Legal Heirs of the
Appellant.
VS.
Sh. Babu Lal Goel
S/o Sh. Prabhu Dayal
R/o WZ271, Jail Road,
Nangal Raya, New Delhi46.
RESPONDENT
3
Date of Institution : 21.3.2007
Judgment Reserved:7.8.2007
Date of Judgment:22.8.2007
ORDER
1. This order shall dispose of Rent Control Appeal filed by the appellant/landlord aggrieved from the order passed by Ld. ARC dt. 15.2.2007 in E173/06 whereby the controller has been pleased to dismiss eviction petition filed by the appellant against the respondent u/s 14(1)(j) of the DRC Act.
2. Brief facts of the case giving rise to the filing of this appeal are:
i) that the appellant who is the owner/landlord let out the suit property comprising of a shop in the year 1989 at monthly rent of Rs.665/ per month excluding other charges. The appellant along with his family had been residing at village Tatiri Aggarwal Mandi, District Baghpat, UP and his son used to come and collect the rent from the respondent from time to time. It was the case of the appellant that the respondent caused substantial damage to the shop by lifting up the shop and roof of the walls about 2 ft without permission of the appellant and in this manner the respondent changed the original shop and impaired its value. It was also 4 averred that request was made to the respondent to remove unauthorized upliftment/construction vide legal notices dt.
26.10.2002 and 22.11.2002 but was of no consequence. Hence, the appellant filed the suit in question.
ii) The suit was contested by the respondent who took various preliminary objections as to the maintainability of the suit by alleging that there was no cause of action to file the suit in question and that it was filed with malafide intention only to harass the respondent. It was denied that the respondent uplifted the walls and the roof of the suit shop. It was stated that the shop was given on rent to the respondent by the appellant as it stood at the time of letting out.
iii) Parties lead evidence which comprised of the statement of AW 1 Sh. Shiv Kumar son of appellant and one architect who appeared as AW 2. Number of documents were filed by them which are copies of notices Ex.AW1/1 and Ex.AW1/2, counterfoils of the rent which used to be issued by the appellant to the respondent and other tenants from time to time. In addition to that record of previous litigation had by the appellant with other tenants in the same building has also been filed.
On the other hand, Sh. Babu Lal the respondent appeared 5 himself and reiterated what has been stated in the written statement. He has proved on record various photographs of the shop in question along with invitation about the opening ceremony of the shop in 1994. In addition to his own testimony the respondent also examined Sh. Ashok Kumar RW 2 and Sh. Ram Niwas RW 3 who corroborated the testimony of the respondent to the effect that the shop in question is in the same condition as it stood when it was let out to the respondent.
3. The trial court by the impugned Judgment appreciated the evidence which came on record and concluded that the deposition of the respondent who categorically stated that at the time of letting out the shop in question its height was 2 ft. more than other shops in the same building is corroborated by RW 2 and RW 3 who are the neighbors where as the deposition of Sh. Shiv Kumar is without any corroboration from any public witness to prove that the height of the roof of the shop was raised by the respondent without seeking permission of the appellant. Moreover, the photographs which have been filed by the respondent in 1994 including the invitation card supports the version of the respondent. The letter dt. 5.3.2002 Ex.AW 1/R1 stated to have been written by the appellant to the respondent, has no mention about raising of the height of the shop 6 in question. Moreover, there is no evidence on record which might show that the value of the shop stands impaired or as to when the respondent carried out unauthorized alteration and additions in the suit property because no evidence to that effect has been lead by the appellant. In these circumstances, it has been held by the trial court that the appellant has failed to prove his plea that the height of the shop in question was raised by the respondent himself after taking the shop on rent and accordingly dismissed the petition filed by the appellant u/s (1)(j) of the DRC Act.
4. In this appeal, the appellant/landlord has assailed the impugned judgment on the ground that the impugned Judgment is based upon conjectures & surmises and is not based on the fact which came on record. It is submitted that the trial court failed to appreciate that despite legal notice dt 26.10.02 and 22.11.02, the aforesaid construction was not removed. It is also submitted that the suit property was let out to the respondent on the same day on which it was vacated by the previous tenant and therefore the question of the landlord lifting the roof does not arise before letting out the suit property to the appellant. It is also submitted that even though there was litigation going on between the appellant and copies of shop no. WZ 270 and 272, the documents pertaining to the 7 said litigation have simply been ignored by the trial court. It is stated that RW 2 admitted that from seeing the shop from outside the shop top of the shop seems to be newly constructed. Rather he also stated that entire shop seems to be newly constructed. Yet the trial court has not taken note of the same. It is also submitted that merely because the rent charged from the respondent was Rs.665/ per month, it would not permit the respondent to raise the height of the shop because the rate of rent in the market and the shop is more than Rs.5000/ per month. It is submitted that the report of AW 2 who gave his report after inspection have been simply ignored by the trial court. He has also relied upon the following Judgments: ● Inder Pal Vs. Sat Narain (P&H) 441 2004 (2) RCR. ● Raj Kumar Vs. Pushpa Devi (P&H) 328 2004 (2) RCR.
5. The crux of the Judgments is that even if rate of rent is increased it would not give licence to the tenant to impair the utility of the property in question of no relevance to the facts of this case.
6. On the other hand, Ld. Counsel for the respondent submitted that in the present case there is nothing in the evidence led by the appellant to show as to when the roof of the shop was lifted. Moreover, there is also no rebuttal to the evidence led of the respondent supported by his witnesses who are natural and 8 independent witnesses and have stated that the shop let out the respondent is as it is as it was at the time of letting out the same. It is also submitted that even otherwise theory of preponderance of probability does not help the appellants in as much as it is their own case that the rate of rent of the shop in question when it was let out to the Dr. Darshan Lal was only Rs.45/ per month whereas after it was vacated by Dr. Darshan Lal it was let out @ Rs.350/ per month which was an increase of more than ten times and which gives credence to the case of the respondent that the premises was repaired by the landlord himself and the shop which was given to the respondent on rent was in the same position as it existed today.
7. I have given my thoughtful consideration to the rival submissions and have also gone through the record including the documents which have been relied by both the parties. From the documents placed on record by the appellant it is not made out as and when the respondent is alleged to have uplifted the walls of the shop in question or increased its height. There is no report lodged by the appellant to the police or to municipal authority in this regard. Admittedly, he is not living in Delhi and comes to collect the rent occasionally. In these circumstances the natural witnesses could have been either his other tenants or somebody else living 9 nearby but no such evidence has been produced. As far as AW 2 is concerned he is obviously a witness who has appeared on behalf of the appellant and can not be considered independent. He also inspected the suit property sometimes in the year 2004 and therefore is not a witness when the height of the shop was lifted. In the statement of AW 1 it has come that there are no major cracks in the shop. Thus, there is no evidence on record which may establishes that any substantial damage has been caused by the appellant or that they have lifted the height of the shop or the walls in question after taking the shop on rent. Moreover, the appellant has not even come in the witness box. It may also be observed that the appellant has not even summoned his previous tenants to whom he let out the suit property from time to time after it was vacated by Dr. Darshan Jain so as to prove that as to what was the status that property when it was vacated by Dr. Darshan Lal and what was the status when it was let out to other tenants prior to respondent.
8. I may also observe that jurisdiction of this Tribunal u/s 38 is very limited. It is only if any question of law is raised then only this tribunal can interfere with the findings returned by the trial court. However, no such legal question has been raised in this appeal. The appreciation of the evidence by the trial court is a 10 factual matter. Even otherwise the appreciation of the evidence does not suffer from any infirmity. Hence, the appeal filed by the appellant is dismissed with no order as to cost. A copy of the order be sent to the trial court along with trial court record. Appeal file be consigned to the recordroom.
Dated: 22.8.2007 (M.C.GARG) ADDL. DISTRICT JUDGE, DELHI.
1121.8.2007 Present: None.
Vide separate order passed today, Copy of the order be sent to the trial court along with trial court record.
Appeal file be consigned to the record-room.
(M.C.GARG) ADDL. DISTRICT JUDGE, DELHI.