Delhi District Court
Rent Controller vs M/S. Vinay Saigal Vijay Saigal on 29 January, 2015
E No. 18/09 & 93/09 1 29.01.2015
IN THE COURT OF Ms. KIRAN GUPTA, SENIOR CIVIL JUDGECUM
RENT CONTROLLER, NEW DELHI DISTRICT, PATIALA HOUSE
COURTS, NEW DELHI
E No. 18/09
Unique ID No. 02403C0960352007
E No. 93/09
Unique ID No. 02403C0971782007
1 Sh. Joginder Lal Kuthiala
2 Sh. Jatinder Lal Kuthiala
Both sons of Late Sh. Bishan Lal Kuthiala
3 Mrs. Susham Kuthiala
W/o. Sh. Joginder Lal Kuthiala
All R/o. 1 Canal Road, Jammu 180 001 (J & K)
....Petitioners
Versus
1 M/s. Vinay Saigal Vijay Saigal
2 Raju Saigal
All at:
B50, Kuthiala Building
Connaught Place, New Delhi
...... Respondents
Date of institution of E No. 18/09 : 07.05.2007
Date of institution of E No. 93/09 : 10.04.2007
Date of conclusion of final arguments : 21.01.2015
Date of judgment : 29.01.2015
Sh. Joginder Lal Kuthiala & Ors. Vs.
M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 1 of 41
E No. 18/09 & 93/09 2 29.01.2015
JUDGMENT:
1. Vide this common judgment I shall decide the two petitions in respect of property bearing no. B 50, Kuthiala Building, Connaught Place, New Delhi 01 (hereinafter referred as the tenanted premises), as common evidence has been lead in both the petitions and further the parties are same with the same facts and contentions. The details of the petitions are as under:
a) Petition U/s. 14 (1) (a) of the Act bearing E no. 18/09 for non payment of rent
b) Petition U/s. 14 (1) (b) (c) & (j) of the Act bearing E No. 93/09 1.1 Both the petitions were initially filed against M/s. Vinay Saigal and Vijay Saigal. Thereafter impleadment application was filed by Sh. Raju Saigal and he was also impleaded as party in both the petitions vide order dt. 02.01.2010.
2. Brief facts of the case as stated in the petition are that Petitioners are the landlords /owners of the tenanted premises, which was let out to the respondent which is a partnership firm for office purpose wayback and the rate of rent is Rs. 125/ per month excluding other charges. It is alleged that respondents had neither paid nor tendered the whole of the arrears of rent and interest Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 2 of 41 E No. 18/09 & 93/09 3 29.01.2015 for the last about 17 years , despite service of the notice dt. 07.02.2007 sent by registered AD and UPC and received by the respondent on 08.02.2007. It is stated that respondents after receipt of said legal notice had sent account payee cheque no. 138088 dt. 06.03.2007 drawn on Bank of India, Greater Kailash Branch for Rs. 4625/ . Since the said cheque did not represent the entire arrears of rent and interest, petitioners did not encashed the same.
2.1 The premises were let out for office purpose to the respondents, however they have unlawfully and without the consent of petitioners changed the user of the premises and a hotel namely Metro Park is being run from the tenanted premises. A private company under the name and style of M/s. V V R Hotels Pvt. Ltd is also having its activities being run from the premises.
2.2 The respondents have made several additions and alterations in the premises. The respondents were let out five rooms , one kitchen, open terrace, one bath and WC, but they have unauthorizedly and without the consent of petitioners or local civic authority, constructed five rooms, two store, one reception area. They have dismantled the kitchen, bath and WC. The original site plan is mark X and the changed position is shown in site plan mark Y. All the alterations and additions have been carried out without the consent of petitioner or the local civic authority or any other authority. The date Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 3 of 41 E No. 18/09 & 93/09 4 29.01.2015 of such illegal and unauthorized construction and change of user is not within the knowledge of petitioners. Respondents have caused substantial damage to the tenanted premises in as much as kitchen, bath room and toilets have been constructed and the rooms have been partitioned. The construction of several toilets, kitchen bath and additional rooms is causing great damage to the building which is very old, existing much prior to the partition of country. The use of the premises for hotel is otherwise detrimental to the premises and the interest of the owner / landlord and is also a nuisance . Legal notice dt. 07.02.2007 was sent to the respondents through counsel for stopping the misuse within one month. The said notice was duly received by the respondents, however they have not stopped the misuse of premises .
2.3 The respondents have also sublet, assigned and otherwise parted with the possession of the tenanted premises or part thereof without consent in writing or otherwise from the petitioners. A private Limited company under the name and style of VVR Hotels Pvt. Ltd is being run from the premises . The respondents have failed to give any information regarding the incorporation of the company , its purpose, object and the name of Director as sought by petitioners vide legal notice dt. 07.02.2007.
2.4 Prior to this petition , a suit was filed before the Ld. Civil Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 4 of 41 E No. 18/09 & 93/09 5 29.01.2015
Judge, in which the site plan mark X was exhibited as correct site plan without any objection of the respondents. The said suit has been decided by the Ld. Civil Judge. Plan Mark Y shows the unauthorized additions / alterations made by respondents in the tenanted premises without the consent of the petitioners. Respondents have further failed to remove the same despite service of the notice dt. 07.02.2007.
2.5 On the basis of these pleadings , it is prayed that eviction U/s. 14 (1)(a) (b)(c) & (j) of DRC Act be passed in respect of tenanted premises in favour of petitioners and against respondents.
3 In the written statement filed by respondents, they have denied the contents of both the petitions. It is stated that the tenanted premises were let out to Sh. J P Saigal in or about 1950 by the previous owners and he became the tenant of petitioners and their predecessor in interest on purchase of the tenanted premises from the previous owners. It is stated that Sh. J P Saigal died on 30.04.1987, leaving behind three sons namely Sh. Vinay, Vijay and Raju Saigal. The petitioners have described M/s. Vinay Saigal and Vijay Saigal as partnership firm , however there was never any partnership firm by the name of M/s. Vinay Saigal and Vijay Saigal. The premises were under the tenancy of Sh. J P Saigal and after his death, tenancy rights were inherited by his three sons. All the three brothers are the cotenants in the tenanted premises and are in actual and physical possession of the Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 5 of 41 E No. 18/09 & 93/09 6 29.01.2015 tenanted premises.
3.1 It is stated that the premises was let out to Sh. J P Saigal for residential cum commercial purposes and at one point the same was used by Late Sh. J P Saigal for residential cum commercial purposes. The premises was not let out only for office purposes as alleged.
3.2 It is stated that petitioners have admitted that respondent had remitted the cheque for Rs. 4,625/ covering the legally recoverable rent, which was for 37 months. Since the amount was remitted to petitioners within two months of the service of the notice of demand, petitioners have no cause of action to file the petition. Petitioners have no right to claim the arrears of rent for more than three years. Interest is never the part of rent and petitioners have no right to claim interest in these proceedings. It is the petitioners who have failed to encash the said cheque for the amount of Rs. 4,625/ without any cogent reason, which is a valid legal tender, hence petitioners have no cause of action to file the present suit for eviction.
3.3 It is stated that premises were let out for residential cum commercial purposes and the same are being used for the said purposes. At one point of time respondents started using the premises for hotel purposes, however the said user has been stopped long ago. Moreover, the user of premises for running a hotel is a commercial Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 6 of 41 E No. 18/09 & 93/09 7 29.01.2015 purpose and cannot be said as misuser, but is in accordance with the purpose of letting. There is no partition in any room. Making a temporary partition in a room does not amount to causing substantial damage. Respondents at no point of time have caused any damage to the tenanted premises.
3.4 The respondents are in actual and physical possession of the tenanted premises . M/s. VVR Hotels Pvt. Ltd is a Pvt. Ltd company in which the total controlling interest vests in three brothers and the said company is controlled by the three brothers only. There is no question of subletting as all the three brothers continued to be in possession of the tenanted premises. All the three brothers are Directors of the said company and are holding the entire share capital of said company.
3.5 It is denied that respondents have made several additions and alterations in the tenanted premises. Respondents have challenged the correctness of the plan filed by the petitioners and stated that both plans mark X and Y are not true and correct. The exhibition of the plan in the civil suit is neither relevant nor material as the relief sought in the said suit was only to the effect that respondents be restrained from subletting the tenanted premises. The correctness or otherwise of the site plan was not decided in those proceedings. It is further stated that respondents are not joint tenant but are cotenant Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 7 of 41 E No. 18/09 & 93/09 8 29.01.2015 in the tenanted premises.
3.6 It is prayed by the respondents that since the petitions are without any cause of action, they be dismissed accordingly.
4 In the replication filed by petitioners, they while denying the contents of written statements have reiterated the facts as stated in petitions. It is denied that Vinay, Vijay and Raju Saigal are the tenants in the tenanted premises. The respondents are stopped from taking such an objection in view of the judgment dt. 27.08.2006, decided by Ld. Rakesh Pandit, the then Ld. Civil Judge in suite no. 635/95. The premises were never used for residential cum commercial purpose. The premises were let out only for office purpose . The respondents have been using the premises for hotel purposes even till filing of the petition and are continuing the same. The period when the hotel was started and closed is not specified. Further, respondents have not pointed out any mistake in both the site plan mark X and Y. It is stated that no rent deed was ever executed between the parties.
5 Vide order dated 24.03.2008, respondent no. 1 was directed to pay or deposit the entire arrears of rent at the rate of Rs. 125/ per month w.e.f. 01.02.2004 till date of order within one month from the date of said order. Respondent was further directed to continue to pay or deposit the future monthly rent at the said rate of Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 8 of 41 E No. 18/09 & 93/09 9 29.01.2015 Rs. 125/ per month, month by month by 15th day of each succeeding month in petition bearing E no. 18/09.
6 Petitioners in order to support their contentions have examined Sh. Bihari Lal Walia as PW 1 who has tendered his evidence by way of affidavit Ex. P1 and relied upon following documents:
a) The SPA dt. 18.01.2008 and 25.01.2008 are Ex. PW 1/1 and Ex. PW 1/1A.
b) The certified copy of the site plan in E No. 93/09 as Ex.
PW 1/2.
c) The certified copy of the site plan in E No. 18/09 as Ex. PW 1/2A.
d) Copy of legal notice as Ex. PW 1/3.
e) The postal receipt as Ex. PW 1/4, UPC Ex. PW 1/5 and AD
Card as Ex. PW 1/6.
f) Certified copy of plaint bearing no. 636/95 titled as Harvansh
Kumari & Ors. Vs. M/s. Vinay Saigal Vijay Saigal as Ex PW 1/7.
g) Certified copy of written statement in suit titled as Harvansh Kumari & Ors. Vs. M/s. Vinay Saigal Vijay Saigal as Ex PW 1/8
h) Certified copy of judgment dt. 27.07.2006 as Ex. PW 1/10.
7 Respondents in order to support their contentions have examined Sh. Vinay Saigal as RW 1 , Raju Saigal as RW 2 and Mr. R K Saini as RW 3. RW 1 and RW 2 have tendered their evidence by way of affidavit Ex. RW 1/A and Ex. RW 2/A respectively and relied upon following documents:
a) Certified copy of application dt. 16.05.1977 is Ex. RW 1/1.
Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 9 of 41 E No. 18/09 & 93/09 10 29.01.2015
b) Certified copy of statement of Sh. H K L Sabharwal, Advocate dt. 24.05.1977 as Ex. RW 1/2.
c) Certified copy of order dt. 24.05.1977 as Ex. RW 1/3.
d) Original rent receipts issued by Sh. Jishan Lal Goel are Ex. RW 1/4 to RW 1/7.
e) Site plan as Ex. RW 1/8.
f) Certified copy of form 32 submitted to the Registrar of
Companies of M/s. VVR Hotels Pvt. Ltd as Ex. RW 1/9
g) Annual returns of M/s. VVR Hotels Pvt. Ltd as Ex. RW 1/10 and Ex. RW 1/11.
8 It is argued by the counsel for petitioners that the respondents are the tenants in the tenanted premises. Respondent no. 1 has admitted the tenancy in his favour in the suit no. 636/95 but now has refused that the premises was let out to the partnership firm only for the sake of denial. The respondent no. 1 is estopped from taking any contrary stand at this stage. It is further argued that respondents have admitted the receiving of notice dt. 07.02.2007 and despite receiving of said notice have not paid the entire arrears of rent within two months of the service of said notice, hence, his petition U/s. 14 (1)
(a) of the Act be allowed accordingly. It is further argued that the cheque which was sent by respondents were not towards entire payment of arrears of rent and also did not included the interest, hence the same was not encashed by the petitioners. Since rent was not tendered within the period of two months despite service of demand notice, eviction petition u/s. 14 (1) (a) be allowed accordingly. It is further argued that respondents have admitted that at some point Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 10 of 41 E No. 18/09 & 93/09 11 29.01.2015 of time they were running hotel Metro Park and have further admitted that M/s. VVR Hotels Pvt. Ltd had been functioning in the premises and its office is being run from the premises, hence the case of subletting is also proved in favour of petitioners.
8.1 It is further argued that despite service of the notice dt. 07.02.2007 for stopping the misuser of premises, respondents have not stopped the same. The site plan mark X is the admitted site plan and petitioners have duly proved the alterations / additions as shown in site plan mark Y. Respondents have never disclosed any discrepancy in the site plan, hence the petition u/s. 14 (1) (c) & (j) be also allowed accordingly. It is further argued that the documents relied upon by respondents cannot be considered in view of the order dt. 16.02.2013, whereby respondents were disallowed to place on record the said documents. Further Ld. Sh. Rakesh Pandit, the then Ld. Civil Judge has duly given the finding on these documents in his judgment dt. 27.08.2006. It is argued that once the documents have been discarded for one reason or the other, it cannot be considered at a later stage. It is further argued that respondents have never taken stand in the written statement that hotel Metro Park was the brand name of M/s. VVR Hotels Pvt. Ltd. and cannot be allowed at the stage of evidence to incorporate such new facts and no reliance can be placed on said statement. In support of his contentions, Ld. counsel for petitioners has relied upon the following judgments:
Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 11 of 41 E No. 18/09 & 93/09 12 29.01.2015
a) Ram Prakash Vs. D N Srivastav , 126 (2006) DLT 6
b) Raghubir Singh Vs.Sheela Wanti, 170 (2010) DLT 7
c) Puneet Bajaj Vs. Baldev Kumar Pawa 170 (20009) DLT 134
d) Shakuntala Devi Vs. Autar Singh 113 (2004) DLT 454
e) British Motor Car Co. Vs. Madan Lal (2005) 1SCC
f) Ramesh Chandra Vs. Shriram & Ors. (1996) 2 RCR 330
g) (1997)2 RCR 43
h) AIR 1968 SC 1431
i) Rajiv Saluja Vs. M/s. Bhartia Industries Ltd. & Anr., 98 (2002) DLT 720,
j) J.K. Kashyap Vs. Rajiv Gupta & Ors., 196 (2013) DLT 263
k) 158 (2009) DLT 522 9 Per contra, it is argued by Ld. counsel for respondents that there is no relationship of landlord and respondent no. 1 as the premises was never let out to the firm. The premises was let out to Sh. J P Saigal after his demise all his three sons have inherited the tenancy rights in the premises. There was no valid service of alleged notice dt.
07.02.2007 . Though there are three petitioners, however the legal notice dt. 07.02.2007 was sent only by two petitioners. The notice was not sent by and on behalf of all the landlords, but only Sh. Joginder Lal and Jatinder Lal, hence there was no valid service of alleged notice. Further, notice was not posted at the correct address. There are three tenants, hence petitioners were duty bound to send three separate notices to all the tenants, however, they sent only one notice and the same was not sent to proper persons. Notice itself is bad , hence the service of the same or not has no relevance as it was never served on all the tenants and further was not sent by all the petitioners. It is further argued that petitioners have admitted the receipt of cheque which was Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 12 of 41 E No. 18/09 & 93/09 13 29.01.2015 duly tendered within two months of the service of alleged notice. Interest , if any is to be paid only pursuant to the service of notice, which in the present case itself is not valid. Since it was not posted at the correct address and to the correct person, no presumption lies in favour of petitioners. The said notice was never received by the respondents.
9.1 It is further argued that respondents in their written statement have clearly stated about the written rent agreement, which has not been denied by petitioners, hence the said document i.e. the rent deed is deemed to have been admitted by petitioners. The description of property as stated in the said rent deed is the same as stated by the petitioners in the petition. The said rent deed clearly provides that the premises was let out for residential cum commercial purposes and the same is being used for the purpose for which it was let out. It is further argued that respondents have duly proved that all the three brothers are the Directors in M/s. VVR Hotels Pvt. Ltd and had been running the Hotel Metro Park for some time in the premises. There is no question of subletting as the possession, legal , physical or otherwise was never parted with by the respondents who continued and continue to be in possession of the tenanted premises. It is further argued that the respondents have not made any addition / alteration in the tenanted premises. No evidence has been led by the petitioners as to how the alleged construction , if any, has caused Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 13 of 41 E No. 18/09 & 93/09 14 29.01.2015 substantial damage to the tenanted premises. No expert in this regard has been examined by the petitioners, hence the petition fails on all these counts. In support of his contentions Ld. counsel for respondents has relied upon following judgments:
a) Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank AIR 2005.
b) S.K. Gupta & Anr. Vs. R.C. Jain, AIR 1984 Delhi 187.
c) Pritpal Singh Vs. Ranjit Rai, AIR 1984 Delhi 198.
d) Vishwanath Vs. Chaman Lal, AIR 1975 Delhi 117.
e) M/s. Maltex Malsters (P) Ltd. Vs. M/s. Allied Engineers, AIR 1975 Delhi
123.
10 Heard counsels for the parties. Perused the complete record file. Since the petitions are under section 14 (1) (a)(b) (c) & (j) , all these provisions shall be dealt separately in view of the evidence lead by both the parties.
11 The foremost thing which has to be considered in every eviction petition is the relationship of landlord and tenant between the parties. In the present case the respondent no. 1 has denied the relationship of landlord and tenant between the parties. There is no dispute of relationship of landlord and tenant between respondent no. 2 and petitioners. The contention of respondent no. 1 is that the premises was never let out to the firm i.e respondent no. 1 but to Sh. J P Saigal and after his death all his three sons have inherited the Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 14 of 41 E No. 18/09 & 93/09 15 29.01.2015 tenancy rights in respect of the premises.
11.1 It is argued by counsel for petitioners that respondents are estopped at this stage to deny the relationship, which is specifically admitted by them in civil suit no. 636/95. He has drawn attention of the court to the second para of reply on merits of the WS filed on behalf of the respondents in the said suit wherein the respondent no. 1 ie. M/s. Vinay Saigal Vijay Saigal has admitted the para two of the plaint as correct to the extent that the firm which is a partnership firm is tenant under the plaintiff/ petitioners on a monthly rent of Rs. 125/. PW 1 during his cross examination denied that Sh. J P Saigal was tenant in the premises at the time when same was purchased by Sh. Bishan Lal Kuthiala. PW 1 further stated that M/s. Vinay Saigal Vijay Saigal are the tenants since the last about 40 years. He admitted that Smt. Harvansh Kumari, Joginder Lal Kuthila and Jatender Lal had filed an eviction petition against Sh. J P Saigal. He stated that he does not know whether the said petition was filed in respect of the tenanted premises. He further stated that he does not know as to in regard to which property the said eviction petition was filed against Sh. J P Saigal.
11.2 The respondents have filed certified copy of one application filed by the parties in appeal no. 866/68 and the consequent statement made by the parties dt. 24.05.1977 and the order of the said court dt. 24.05.1977. As per the said application, some Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 15 of 41 E No. 18/09 & 93/09 16 29.01.2015 compromise was entered between Sh J P Saigal and petitioners qua the property bearing no. B50, Kuthiala House Connaught Place, New Delhi . The said order is dt. 24.05.1977. The suit no. 636/95 was filed in the year 1995 and the written statement which was filed in the said suit was verified on 10.09.1998 bearing signatures of Vinay, Vijay and Raju Saigal. The above said documents Ex. RW 1/2 and RW 1/3 were never relied upon in the said suit and had been filed only at this stage. RW 1 during his cross examination admitted that they had filed written statement Ex. PW 1/A in the suit for injunction filed by petitioner no. 1 and 2 and their mother against them in respect of tenanted premises. RW 1 further admitted that written statement Ex. PW 1/A is signed and verified by his mother and brothers. He stated that contents of para 2 of Ex. PW 1/A to the effect that respondent firm is a partnership firm and is tenant is incorrect. He admitted that no amendment application was filed in the said suit regarding fact of partnership firm. He stated that para 5 of Ex. PW 1/A is not correct so far as partnership of the firm is concerned.
11.3 RW 1 during his cross examination has categorically admitted of filing of written statement Ex. PW 1/A . He further admitted that no amendment was sought regarding the partnership firm. Thus it is evident that respondent no. 1 has admitted tenancy in respect of the tenanted premises in the said suit but has denied the same in the present petition only for the sake of it without any Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 16 of 41 E No. 18/09 & 93/09 17 29.01.2015 justification.
11.4 It is argued by counsel for respondents that such admission is not binding on the respondent no. 1 and has relied upon judgment of Rulhu Ram Dewat Ram Vs. Than Singh and Ors AIR 1967 Punjab 328. I have perused the said judgment. The said judgment is not applicable to the present case as respondent no. 1 in the present petition has not explained any reason for admitting that the premises was let out to it in the said suit. The said admission has never been held as erroneous and further has not been withdrawn in the present suit in specific words. It is settled law that the admission made by a party in one suit, if relied upon by the other party in the other suit, cannot be regarded as conclusive, however the burden is upon the party against whom it is relied that it is not true. The respondent no. 1 in the present matter has not placed on record any document or examined any witness to refute the said admission. Even otherwise as per the respondent no. 1, the premises was let out to Sh. J P Saigal and all the three sons have inherited the tenancy rights after death of their father. The three brothers are Vijay, Vinay and Raju Saigal. Vijay and Vinay are the partners in respondent no. 1. Further Raju Saigal was impleaded as a party in the present petition vide order dt.02.01.2010. Hence, as such there is no dispute of relationship of landlord and tenant between the parties.
Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 17 of 41 E No. 18/09 & 93/09 18 29.01.2015 12 Before proceeding on the merits of the case, counsel for
respondents have challenged the competency of PW 1 . It is argued that PW 1 is merely an attorney and cannot depose on the facts which are not within his knowledge, hence, no reliance can be placed on his testimony. PW 1 has placed on record the SPA in his favour as Ex. PW 1/1 and Ex. PW 1/A. PW1 in his affidavit has stated that he is in service of petitioners as Manager Estate for last 40 years and looking after and Managing their properties in Delhi. It is further stated that he is well conversant with the facts of the case and able, competent and authorized to depose about the same. He during his cross examination stated that tenanted premises were in the tenancy of Sh. J P Saigal prior to the purchase of property by petitioners in 1961.
12.1 In the present case, PW 1 has not only deposed as Power of attorney of petitioners but also being the Manager Estates as he is looking after the properties of petitioners at Delhi . The fact whether PW 1 has personal knowledge about the matter in controversy, is a question which can be thrashed out by cross examining him. In the entire cross examination of PW 1, there is no such question or suggestion regarding his competency.
12.2 It is settled legal position that any person is a good witness if he deposes about the facts which are in his personal knowledge. What law requires is that deposition must be of facts within the Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 18 of 41 E No. 18/09 & 93/09 19 29.01.2015 knowledge of witness to which witness is a privity. The evidence given by a witness cannot be rejected on the ground that he is merely an employee, nor any adverse inference can be drawn against the petitioner on the ground that he had not appeared as his own witness in the case. The fact whether the witness has succeeded in proving the case or not is a secondary question, however the testimony of the witness cannot be outrightly rejected on the ground that he is merely an employee or an attorney. Petitioner being the master of his case can prove his case without appearing in the witness box also. The purpose of leading evidence through a witness is to establish the case of the party and any person who is in a position to depose with regard to the facts about which that person deposes, can be considered to be a witness competent to depose. It is not the rule of law that petitioner has to examine himself to prove his case and cannot examine any other person who is conversant with the facts of the case. Hence the argument of Ld counsel for respondent regarding the competency of PW 1 is misconceived and not tenable.
Section 14 (1)(a) 13 Section 14 (1)(a) of the Act requires :
a) Existence of arrears of rent legally recoverable on the date of notice of demand.
b) Service of notice of demand in the manner provided in Section 106 of the Transfer of Property Act.
Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 19 of 41 E No. 18/09 & 93/09 20 29.01.2015
c) Failure of the tenant to pay or tender the whole of the arrears of rent legally recoverable from him within two months of the date of service of notice.
13.1 In the present case, the respondents have not denied the service of the notice dt. 07.02.2007. The main contention which has been raised by the counsel for respondents is that the said notice was not issued by all the petitioners and further the same was not addressed properly to all the respondents, hence the said notice cannot be termed as valid notice and no reliance can be placed upon the same.
13.2 In the written statement filed by the respondents, the respondents have never taken any objection regarding the validity of the notice that the same was not addressed properly by all the petitioners or that it was not addressed to all the respondents / tenants. On the contrary, respondents in the very first paragraph of the written statement in petition bearing E No. 18/09 have stated that since the amount of Rs. 4,625/ covering the legally recoverable rent for 37 months was remitted to petitioners within two months of the service of demand notice, petitioners have no cause of action to file the present petition. In Para 18 (b) of the petition, petitioners have detailed about the notice dt. 07.02.2007 and how the same was sent to respondents. The respondents in reply to the said paragraph have simply stated that said para is denied. In reply to para 18 (a), Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 20 of 41 E No. 18/09 & 93/09 21 29.01.2015 respondents have categorically stated that the notice of demand was duly complied within two months. Thus there is no denial of the fact that the demand notice dt. 07.02.2007 was served to the respondents.
13.3 PW 1 during his cross examination stated that notice dt. 07.02.2007 Ex. PW 1/3 was posted by the counsel for petitioners, however the same was not posted in his presence. He denied the suggestion that no notice Ex. PW 1/3 was ever served upon the respondents. He further denied the suggestion that AD Card Ex. PW 1/6 is a forged and a fabricated one. The address stated on the UPC and AD card is B 50 Kuthiala Building, Connaught Place, New Delhi. RW 1 and RW 2 during their cross examination admitted that the address on Ex. PW 1/3 is the correct address for receiving the dak.
13.4 Though the counsel for respondents have taken the objections regarding the validity of notice during the arguments, however there is not even a single suggestion regarding the validity of notice or that the same was not sent by all the petitioners and to all the tenants or was not correctly addressed. The argument seems to have been taken only for the sake of it without any legal basis. The respondents have never refuted the service of the notice Ex. PW 1/3. Further RW 1 has categorically admitted that the address on Ex. PW 1/3 is the correct address for receiving dak, hence there is presumption of service of notice also in favour of petitioners. Hence, on the basis of Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 21 of 41 E No. 18/09 & 93/09 22 29.01.2015 above discussion, the service of notice to the respondents is duly proved by the petitioners.
13.5 It is an admitted fact between the parties that despite service of notice Ex. PW 1/3, respondents only sent the cheque for the amount of Rs. 4625/ . Petitioners in para 18 (a) of the petition have categorically stated that respondents have not tendered rent for the last about 17 years. The said fact has not been denied by the respondents in reply to the said paragraph. It is merely stated that petitioners have no right to claim arrears of rent for more than three years. Now what has to be considered is whether there was existence of rent legally recoverable on the date of notice of demand.
13.6 The word "arrears of rent" is referred to an outstanding liability in respect of rent. The expression "legally recoverable" means rent for the recovery of which there is no legal bar . One such bar may be the expiry of the period of limitation , as the expiry of the period of limitation prescribed by law bars the recovery of the said amount. Thus the term "arrears of rent legally recoverable", means arrears of rent which are not barred by limitation. If the rent was not legally recoverable on the date of notice of demand, the tenant would not be liable to pay or tender such amount. Tender of part of the amount of rent legally recoverable does not make the tenant escape his liability and is not effective for the purpose of section 14 (1) (a) of the Act. Thus Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 22 of 41 E No. 18/09 & 93/09 23 29.01.2015 on the date of notice of demand, the respondents were under the obligation only to pay the legally recoverable arrears of rent i.e. the arrears for the period of three years prior to the date of notice of demand.
13.7 Now what has to be considered is whether respondents tendered the whole of the arrears of rent legally recoverable within two months of the date of service of notice. In para 6 of the notice Ex. PW 1/3 , the petitioners have demanded arrears of rent for the last 17 years along with interest @ 15 % per annum. Pursuant to the said notice, respondents have sent the amount of Rs. 4,625/ by way of cheque to the petitioners. The receiving of the said cheque is not denied by the petitioners. The admitted rate of rent in the present case is Rs. 125/ per month . It is no more res integra that payment of rent by cheque operates as valid discharge of the debt. It is argued by the counsel for petitioners that the said amount of Rs. 4,625/ did not include the interest for late payment, hence the respondents did not tender the whole of the arrears of rent legally recoverable. It is no more res integra that interest forms part of the arrears of legally recoverable rent and there are plethora of judgments on this legal issue, some of which are discussed as under:
13.8 In Raghubir Singh Vs Sheela Wanti & Anr., 170 (2010) DLT 7, Hon'ble High Court of Delhi held that:
Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 23 of 41 E No. 18/09 & 93/09 24 29.01.2015 Where the rent is not paid by monthtomonth, the interest over the rent, as levied by the statute, becomes part of the legally recoverable rent and it cannot be said that unless there is an amendment in Section 14 (1)(a) or Section 15, the provisions of Section 26 would not apply. The rent due would mean that the rent due as per law and where the law specifically provides that if rent is not paid for the months when it is due, it has to be paid with interest of 15% per annum, then the rent due would include the rent plus the interest over it. The tenant in this case had been tendering rent with a gap of six month or nine month or so and had not been tendering rent month by month. The tenant had to tender rent alongwith accrued interest of 15% per annum to the landlord in view of the statutory provisions of DRC Act. In the case in hand, the landlord had specifically demanded interest of 15% over the delayed rent from the tenant vide notice of demand and once this notice is made, non tendering of rent with interest, tantamounts to non fulfillment of obligation under Section 14 (1)(a) of DRC Act. I consider that the tender made by the tenant was not in accordance with law and was not valid tender.
9........ Section 14(1) (a) specifically provides that on receipt of notice the tenant has to pay whole of the arrears of rent legally recoverable from him. There can be no doubt that payment of rent is an obligation of the tenant and whole of 'arrears' of rent would only mean that the rent payable uptodate on the date of tendering of rent. The legislature cannot be intended to have provided that the landlord will keep on serving notice every time on the tenant and then only the tenant would tender arrears of rent as demanded in the notice and unless it is not demanded in the notice, the arrears of rent would not be tendered . The tendering of 'whole of arrears of rent' as envisaged under section 14 (1) (a) cannot be construed as arrears demanded in the notice by the landlord. I , therefore, consider that Ld. RCT went wrong in observing that the tenant was only obliged to pay arrears only up to September 1992 as demanded and he was not obliged to pay the whole of arrears legally recoverable from him on the date of tendering.
13.9 In Ram Prakash ( Prof.) Vs. D N Srivastava 2006 II AD (Delhi) 182 , Hon'ble Apex court has held that :
Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 24 of 41 E No. 18/09 & 93/09 25 29.01.2015
6...............................In my opinion, words 'neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which the notice of demand for payment of arrears has been served in Section 14 (1) (a) of the Act would include in its ambit the interest accrued on the contractual amount 'rent for use and occupation of the premises in question. The interest accrued on late payment under section 26 of the Act becomes arrears of rent legally recoverable and if not paid within two months of the date of which notice of payment for arrears of rent has been served on the tenant, can render the tenant liable to be evicted under section 14 (1) (a) of the Act.
............ The tenant cannot claim protection of contractual rates for use and occupation of the premises contrary to the occupation of the premises contrary to the statutory mandate which makes it obligatory upon the tenant to pay interest on delayed payment of rent as also enjoins upon him to pay a ten percent increase in rent over the period of time. Consequently, I hold that 'rent' includes in its ambit ' contractual rent ' together with 'interest on delayed payment' if any, as also 'statutory increase of rent' for the purpose of eviction under section 14 (1) (a) of the Act.
14 In the present case, the respondents despite service of the demand notice have not tendered the interest on the arrears of rent, legally recoverable despite the same being specifically demanded, hence are liable for eviction u/s. 14 (1)(a) of the Act.
Section 14 (1) (b) 15 Under section 14 (1) (b) of the Act, the landlord is entitled for the order of eviction, if, the tenant has sublet , assigned or otherwise parted with possession of the whole or any part of the premises without obtaining the consent in writing of landlord. Thus Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 25 of 41 E No. 18/09 & 93/09 26 29.01.2015 the provision has three facets, firstly subletting, secondly assignment and thirdly parted with possession. In case of subletting, there has to be transfer of interest in favour of the sub tenant for valuable consideration ie rent and the right to possession against the tenant . In assignment, the tenant has to divest himself of all the rights that he has as a tenant. While the expression parting with possession postulates parting with legal possession i.e giving possession to persons other than those to whom possession has been assigned by the lease.
15.1 In Narayan Ratan v. India Mill Stores 1977 RCR, it was held by Hon'ble M.P. High Court that:
"the question whether there is unlawful subletting is, in most cases, a matter of inference to be drawn from the facts of each cases. The initial onus of proving unlawful subletting, in the first instance lies upon the plaintiff. Subtenancy can hardly be proved by direct evidence. All that the plaintiff can do is to place on record certain circumstances from which an inference has to be drawn. When such circumstances are proved, prima facie, the burden placed on the plaintiff is discharged, and the onus shifts on the defendant not to prove any negative fact but establish a positive aspect about the capacity in which the alleged subtenant is occupying the premises and that he has not parted with the whole or a part of the tenanted accommodation. It follows that the pleading of the defendant must be clear and explicit as the facts, in which a third person has been inducted into the whole or any part of the premises are within his knowledge. The defendant must, therefore, specifically plead all the facts necessary to disprove the inference of subletting".
Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 26 of 41 E No. 18/09 & 93/09 27 29.01.2015 15.2 In Sohan Lal Vs. Sripal & Ors. , 48 (1992) DLT 65, it was held that:
"in sub letting there should exist the relationship of landlord and tenant as between the tenant and his sub tenant and the instance of letting or the tenancy must be found namely the transfer of an interest in the estate, demand of rent and the right to possession against the tenant in respect of the premises sublet. In assignment the tenant has to divest himself of all the rights that he has as a tenant. The expression parting with possession undoubtedly postulates parting with legal possession. Parting with possession means giving possession to persons other than those to whom possession has been assigned by the lease and the parting with possession must have been by the tenant. The mere user by other person is not parting with possession so long as the tenant retains the legal possession himself. In other words, there must be vesting of the possession by the tenant in other person by divesting himself not only of physical possession but also of right to possession. The divestment or abandonment of right to possession is necessary in order to invoke the clause of parting with possession."
15.3 In Shri Gurdial Singh Vs. Shri Brij Kishore & Ors 1970 RCJ1001 it has been held that:
"what is to be seen in each case is whether the tenant has totally effaced himself and whether the possession of the third person is exclusively in his own right and to the ouster of the lessee. Though a person may be absent from the premises at a time yet if he has an intention to return to them, it may fairly be said that he is still actually in possession and , therefore, entitled to be protected. If a lessee retains legal possession at all times he does not commit a breach of the covenant against parting with the possession by allowing other Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 27 of 41 E No. 18/09 & 93/09 28 29.01.2015 people to use the premises. A covenant against the parting with the possession is not broken by sharing the possession with another. It is quite possible in law that a man can permit anyone to occupy and at the same time remain in possession, where the tenant remained in control of each of the companies and the facts shows that he was really and easily carrying on the business of others at his own premises which remained his from first to last, then he cannot be said to have parted with possession. The mere act of letting other persons into the possession by the tenant and permit them to use the premises for their own purpose is not , so long as he retains the legal possession himself, a breach of the covenant."
15.4 In Shalimar Tar Products Ltd. Vs. H C Sharma, (1998) 1 SCC 70 the Apex Court had noted that:
"to constitute subletting, there must be parting of legal possession ie possession with the right to include and also right to exclude other and whether in a particular case, there was sub letting or not was a question of fact. To establish this ground, the landlord must show that the tenant has completely divested himself from the suit premises and has lost control over it.
16. Thus the onus to prove subletting is on the landlord. If the landlord prima facie shows that the occupant who was in exclusive possession of the premises was let out for valuable consideration, it would then be for the tenant to rebut the evidence. Thus, in the case of subletting, the onus lying on the landlord would stand discharged by adducing prima facie proof of the fact that the alleged subtenant was Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 28 of 41 E No. 18/09 & 93/09 29 29.01.2015 in exclusive possession of the premises or, to borrow the language of Section 105 of the Transfer of Property Act, was holding right to enjoy such property. A presumption of subletting may then be raised and would amount to proof unless rebutted [(reliance placed on Krishnawati v. Hans Raj [(1974) 1 SCC 289] reiterating the view taken in Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh [(1968) 2 SCR 548].
17 In the present case, it is alleged that the respondents have sub let the tenanted premises and are running Hotel Metro Park and also the office of M/s. VVR Hotels Pvt. Ltd. without the consent in writing of petitioners. The said contention is refuted by respondents on the ground that the premises have never been sublet as the three brothers are the directors of M/s. VVR Hotels Pvt. Ltd. and the Hotel Metro Park was run by them.
18 The petitioners except the submission that the respondents have opened the Hotel Metro Park in the tenanted premises, have not placed on record any document to support their contentions. As discussed above, the law casts initial onus of proving unlawful subletting, in the first instance on the petitioner / landlord, which he can discharge by placing on record certain circumstances, from which an inference has to be drawn. Petitioner / landlord has to prove such circumstances that the occupant is in exclusive possession Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 29 of 41 E No. 18/09 & 93/09 30 29.01.2015 of the premises and the same has been let out for valuable consideration, to the exclusion of tenant i.e the tenant has totally effaced himself and the possession of third person is exclusively in his own right and to the ouster of the lessee / tenant. In the present case, the petitioners have not led any evidence to prove any such circumstance of subletting. It is argued by the counsel for petitioners that it is the respondents themselves who have admitted the existence of M/s. VVR Hotels Pvt. Ltd and Hotel Metro Park in the tenanted premises, which admission is sufficient to prove subletting. Though the said argument ostensibly appeals to the mind, however the same cannot be taken as such without appreciating the stand of the respondents in this regard.
19 Now coming to the contention of respondents that all the three respondents who are the brothers, are the Directors in M/s. VVR Hotels Pvt. Ltd. There is no dispute that Sh. Vijay and Vinay are the partners in M/s. Vijay Saigal and Vinay Saigal ie. respondent no. 1. Further there is no dispute that respondent no. 2 is also the tenant in the tenanted premises.
19.1 In Murlidhar v. Chuni Lal (1970 Ren CJ 922) which is a case where a shop was let out to a firm of the name of Chuni Lal Gherulal. The firm consisted of three partners, namely, Chuni Lal, Gherulal and Meghraj. This partnership closed and a new firm by the Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 30 of 41 E No. 18/09 & 93/09 31 29.01.2015 name of Meghraj Bansidhar commenced its business with partners Meghraj and Bansidhar. The tenant firm was sought to be evicted on the ground that the old firm and the new firm being two different legal entities, the occupation of the shop by the new firm amounted to sub letting. This Court discarded the contention as "entirely without substance" and held that a partnership firm is not a legal entity; the firm name is only a compendious way of describing the partners of the firm. Therefore, occupation by a firm is only occupation by its partners. The two firms, old and new, had a common partner, namely, Meghraj, who continued to be in possession and it was fallacious to contend that earlier he was in possession in the capacity of partner of the old firm and later as a partner of the new firm. The landlord, in order to succeed, has to prove it as a fact that there was a sub letting by his tenant to another firm. As the premises continued to be in possession of one of the original tenants, Meghraj, then by a mere change in the constitution of the firm of which Meghraj continued to be a partner, an inference as to subletting could not be drawn in the absence of further evidence having been adduced to establish sub letting.
19.2 In Helper Girdharbhai v. Saiyed Mohd. Mirasaheb Kadri [(1987) 3 SCC 538] the tenant had entered into a partnership and the firm was carrying on business in the tenancy premises. This Court held that if there was a partnership firm of which the appellant was a Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 31 of 41 E No. 18/09 & 93/09 32 29.01.2015 partner as a tenant, the same would not amount to subletting leading to forfeiture of the tenancy; for there cannot be a subletting unless the lessee parted with the legal possession. The mere fact that another person is allowed to use the premises while the lessee retains the legal possession is not enough to create a sublease. Thus, the thrust is, as laid down by this Court, on finding out who is in legal possession of the premises. So long as the legal possession remains with the tenant the mere factum of the tenant having entered into partnership for the purpose of carrying on the business in the tenancy premises would not amount to subletting.
20 The respondents in order to prove that there is no subletting, have placed on record the certified copy of form 32, annual returns and returns filed with the Registrar of Companies as Ex. RW 1/9 to Ex. RW 1/11. Respondents have also examined RW 3 Sh. R K Saini, Sr. Technical Assistant from the office of Registrar of Companies who has proved these documents as Ex. RW 1/9 to Ex. RW 1/11. He has also proved the copy of Memorandum of Association and Article of Association of M/s. VVR Hotels Pvt. Ltd as Ex. RW 3/1(on the document written as Ex. RW 2/1). As per the Ex. RW 3/1 Vinay, Vijay and Raju Saigal are the Directors in M/s. VVR Hotels Pvt. Ltd. As per Ex. RW 1/9, Vinay, Vijay and Raju Saigal are the Directors. As per Ex. RW 1/10, M/s. VVR Hotels Pvt. Ltd was registered on 16.01.2002 with directors Vinay, Vijay and Raju Saigal. The said fact is further proved Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 32 of 41 E No. 18/09 & 93/09 33 29.01.2015 from the Ex. RW 1/11. Thus from these documents, it is evident that all the respondents are the Directors in M/s. VVR Hotels Pvt. Ltd which was incorporated on 16.01.2002. Since both the partners of respondent no. 1 and respondent no. 2 who are also the legal heirs of Sh. J P Saigal , are the directors in said company, it cannot be said that they have sublet, assigned and parted with possession of the tenanted premises with M/s. VVR Hotels Pvt. Ltd.
20.1 As regards the Hotel Metro park is concerned, RW 1 in his affidavit has stated that M/s. VVR Hotels Pvt. Ltd had been running the hotel under the name of Hotel Metro Park for some time from the tenanted premises. There is no dispute that Hotel Metro park was being run from the tenanted premises.
20.2 It is argued by Counsel for petitioner that respondents in their written statement never pleaded that M/s. VVR Hotels Pvt. Ltd had been running the hotel under the name of Hotel Metro Park and have contended the same at this stage. The said argument of Ld. counsel for petitioner is misconceived and not tenable in view of the specific statement made by the respondents in para 18 (1) (a) of the written statement in petition bearing E no. 93/09. It is categorically stated by respondents that it is not denied that at one time, the respondents had used the premises for running a hotel under the name and style of Hotel Metro Park, but the said business has been Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 33 of 41 E No. 18/09 & 93/09 34 29.01.2015 stopped by the respondents. Petitioners have not placed on record any document to show that the tenanted premises was sublet by respondents to Hotel Metro Park. PW 1 during his cross examination stated that he does not know, if, VVR Hotels Pvt. Ltd was running Hotel Metro Park. On the contrary, respondents have categorically stated that their company M/s. VVR Hotels Pvt. Ltd was running hotel Metro Park in the tenanted premises.
21 On the basis of above discussion, it is evident that the petitioners have failed to discharge the initial onus of proving unlawful subletting. Further, petitioners have failed to prove that the respondents have divested themselves of all the rights in respect of the tenanted premises in favour of Hotel Metro Park or M/s. VVR Hotels Pvt. Ltd. On the contrary, the respondents have proved that all the three respondents are the Directors in M/s. VVR Hotels Pvt. Ltd and also that Hotel Metro Park was being run by them. Petitioners have failed to prove any subletting, assignment or parting with possession by the respondents in favour of any third person, hence the petition is dismissed U/s./ 14 (1) (b) of the Act.
Section 14(1) (c) 22 Under Section 14(1)(c) , the tenant is liable for eviction if he has used the premises for a purpose other than that for which they Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 34 of 41 E No. 18/09 & 93/09 35 29.01.2015 were let out without obtaining the consent of the landlord.
22.1 The case of petitioners is that the respondents were let out the tenanted premises for office use only, however they have used the same for commercial purpose by running the hotel Metro Park. On the contrary, the stand of the respondents is that the premises was let out for residential cum commercial purposes. Though the petitioners have stated that the premises was let out for office use only, however no document to show that the premises was let out for particular purpose for office use has been placed on record by the petitioners. RW 1 during his cross examination has denied that the tenanted premises has not been let out for commercial purpose. He stated that he has been using the premises for commercial and office purpose. In the absence of any evidence documentary or oral, the petitioners have failed to prove that the tenanted premises was let out only for office purposes and that the respondents have used the premises contrary to the purpose for which it was let out. No ground is made out for eviction u/s. 14 (1) (c) and plea is accordingly dismissed.
Section 14(1) (j) 23 Under section 14 (1) (j) , the tenant is liable for the order of eviction if he has caused or permitted to be caused substantial damage to the premises.
Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 35 of 41 E No. 18/09 & 93/09 36 29.01.2015 23.1 The petitioners have contended that the respondents were
let out five rooms, one kitchen, open terrace, one bath and WC but now they have without the permission of petitioners constructed five rooms, two store, one reception area. On the contrary, the stand of the respondents is that the tenanted premises is in the same condition as it was let out. Petitioners have placed on record two site plans Ex. PW 1/2 and Ex. PW 1/2A . Even the respondents have placed on record one site plan RW 1/8. The contention of respondent is that site plan mark X which was filed before the Ld. Civil Judge is the correct site plan as it is an exhibited document in the said proceedings. The said contention is misconceived as no finding about the correctness of the site plan was given in the said proceedings which was merely a suit for injunction against sub letting. PW 1 during his cross examination stated that a complaint in writing was lodged by petitioners with NDMC in respect of the construction raised in the premises. He further stated that he does not know if any copy of the said complaint has been filed in the present case. He stated that he and the petitioners are not in possession of the copy of said complaint.
23.2 No copy of the complaint lodged to NDMC in respect of the unauthorised construction has been placed on record by the petitioners. Except the site plans, no other document has been placed on record by the petitioners to show the unauthorised construction.
Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 36 of 41 E No. 18/09 & 93/09 37 29.01.2015
No photographs of premises have been placed on record by the petitioners. RW 1 during his cross examination stated that at the time of starting the Hotel Metro Park they had put wooden partitions. Around two - three wooden partitions were put. No false ceilings were constructed and no washbasins were provided in the rooms. He denied that they covered the open space in between the premises B 50 B 51 and made common reception in that area for Hotel Metro Park. RW 1 stated that there was no reception in Hotel Metro Park but there was one counter table. He stated that wooden partitions were not attached / locked with the walls. The structure of the rooms were not changed. He stated that the bigger rooms were converted into smaller rooms with the help of wooden partition. He admitted that wooden partitions were touching the floor and roof on both sides.
23.3 In Om Pal v. Anand Swarup, (1988) 4 SCC 545, the Supreme Court observed that:
"every construction or alteration does not impair the value and utility of the building and that 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 utilization aspect of building. It was further held that the construction of Chabutra, almirah, opening of window, closing of a Verandah, replacing of leaking roof, placing partition in a room or making minor alterations for convenient use of accommodation would not materially alter the building".
23.4 In Savitri Devi v. U.S. Bajpai and Another, AIR 1956 Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 37 of 41 E No. 18/09 & 93/09 38 29.01.2015 Nagpur 60, it has been held that :
"the tenant had raised temporary shed which did not alter or demolish any part of the house except a portion of the front wall. So far as the erection of temporary shed was concerned it was observed that it could not be said to be an act of waste. It was further observed that if the damage done is not significant and could be easily repaired such an act would not entitle the landlord to the grant of permission to terminate the tenancy unless it is likely to impair materially the value or the utility of the building.
23.5 Punjab and Haryana High Court in Madan Lal Saggi and Another v. British Motor Car Company, 1984(2) RCR 572, held that:
"where the landlord did not give the date of making of additions and alterations by the tenant the landlord's application must fail. In the said case, the tenant had covered the Veranda into rooms but character of the building remained commercial. It was held that the tenant was not liable to be ejected. There should be structural alterations which change the nature and character of building to bring the act of tenant within the mischief of the statute it was held.
23.6 Punjab and Haryana High Court again in Gurmit Singh v. Smt. Kirpal Kaur, 1992(2) RLR 271, held that:
"false ceiling of temporary nature does not in any way impair the value and utility of the premises. It was held that replacement of roof and staircase was not material alterations in the tenancy premises".
23.7 In Vipin Kumar v. Roshan Lal Anand and Others, (1993) 2 SCC 614, it was held by the Supreme Court that:
Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 38 of 41 E No. 18/09 & 93/09 39 29.01.2015 "the impairment of the value or utility of the building is from the point of view of the landlord and not of the tenant. The acts of the tenant must be such that construction of the wall had materially impaired the value or utility of the demised premises. Whether the value and utility had materially been impaired is an inferential fact to be deduced from proved facts. In the said case the tenant without the consent of the landlord had constructed walls and put up doors herein which had stopped the flow of air and light. He had removed the doors. The Supreme Court held that the value and utility of the premises has been materially affected. It was further observed by the Supreme Court that "In determining the question the Court must address itself to the nature, character of the constructions and the extent to which they make changes in the front and the structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant". In considering that language it was held that putting up a door to the Veranda is not a material alteration".
24 Thus the onus of proving that the tenant has caused substantial damage to the demised premise is upon the landlord and he must prove that addition and alteration in the tenanted premises is carried out by the tenant without his consent. 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. 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. Every construction or alteration does not impair the value and utility of the Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 39 of 41 E No. 18/09 & 93/09 40 29.01.2015 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. 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.
25 PW 1 in his affidavit and petition has alleged that the respondents have carried out unauthorized additions and alterations in the tenanted premises without obtaining oral or written consent of petitioners. PW 1 has deposed that the respondents have unauthorizedly constructed few rooms and covered the open veranda. The area of the tenanted premises is not disputed. Except the site plans , petitioners have not placed on record any document or photographs to show unauthorised construction. In the absence of any such evidence, it cannot be said that the respondents have carried out any structural changes in the tenanted premises except that they have put wooden partitions in the big rooms in order to construct small rooms. The wooden partitions, if any , are only temporary structure and it cannot be said that they have altered or demolished Sh. Joginder Lal Kuthiala & Ors. Vs. M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 40 of 41 E No. 18/09 & 93/09 41 29.01.2015 any part of the tenanted premises. Minor renovation which does not in any way impair the value and utility of the premises, cannot be termed as structural alteration or addition. Petitioners have failed to prove that the respondents have caused or permitted to be caused substantial damage to the tenanted premises. The petition of the petitioners even fails on this count.
26 Hence on the basis of above discussion, the petition u/s. 14 (1) (a) bearing E. No. 18/09 is allowed, while the petition u/s. 14 (1)
(b) (c) and (j) bearing E no. 93/09 is dismissed. No order as to costs.
The file of petition bearing E no. 93/09 be consigned to record room, while the file of petition bearing E no. 18/09 be listed for consideration as to whether the respondents can be granted benefit U/s. 14 (2) of the Act or not.
ANNOUNCED IN OPEN ( KIRAN GUPTA )
COURT ON 29.01.2015 SCJCUMRENT CONTROLLER
PATIALA HOUSE COURTS:NEW DELHI
Sh. Joginder Lal Kuthiala & Ors. Vs.
M/s. Vinay Saigal Vijay Saigal & Anr. Page no. 41 of 41