Delhi District Court
Sh. Ashok Kumar Singhal vs Smt. Pramila Sahu on 21 December, 2021
IN THE COURT OF MS. SNIGDHA SARVARIA,
ACJ-cum-CCJ-cum-ARC, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI.
RC ARC No : 85/2021
Sh. Ashok Kumar Singhal
S/o late Sh. Shiv Narayan Singhal
At : Godown No. 9A, Plot No. 483/48A,
G.T. Road, Near Old Seema Puri,
Shahdara, Delhi-110095
And also at A-152, Surya Nagar,
Ghaiabad, U.P. ......... Petitioner
Versus.
Smt. Pramila Sahu
W/o Sh. Radhey Shyam Sahu
R/o 147, New Rajdhani Enclave,
Delhi-110092 ......... Respondent
Petition Under Section 44 of Delhi Rent Control Act
ORDER
1. Vide this order I shall decide the petition under section 44 of The Delhi Rent Control Act, 1958 (DRC Act) filed by petitioner seeking direction to the respondent to give necessary permission to the petitioner to repair the shutter/gate, stairs and height of the surface of the godown/tenanted premises/suit property.
2. The brief facts of the case are that the petitioner is the tenant in premises of respondent having godown No. 9-A, Plot No. 483/48A, G.T. Road, Near Old Seema Puri, Shahdara, Delhi-110095 on a monthly rent of Rs.3,194/- per month and is running a business in the name and style of M/s New Ganesh Road Lines and nature of business is loading and unloading the goods and is earning his livelihood. The construction of the said property is old one and due to the lapse of time, construction of the godown has become weak especially the walls of the godown and due to this the main gate/shutter installed in the property has fallen down in the first week of February, 2021. It is stated that the petitioner is not able to close the shutter of the property, while the costly goods RC ARC No : 85/2021 Sh. Ashok Kumar Singhal Vs. Smt. Pramila Sahu 1 of 7 of the customers of the petitioner is lying inside the godown/property which is not safe since the main gate/shutter has already been diminished. Also the surface of the property has already been lowered down upto 3-4 feet due to the passage of time and the stairs to go inside the property has also been collapsed and as such petitioner is suffering irreparable loss. In this regard, the petitioner got issued a legal notice dated 18.02.2021 to respondent. However, the respondent has categorically refused to repair the suit property and also not permitted to petitioner to repair the same.
3. The respondent was summoned vide order dated 20.11.2021 and was served with the summons of this petition, thereafter, reply was filed by the respondent.
4. In the reply filed by the respondent it is stated that respondent had issued a legal notice daed 01.10.2021 to petitioner and his brother Manoj Singhal as per which the rate of rent was enhanced to Rs.3513.40/- per month w.e.f. 01.11.2021 so as per section 3
(c) of DRC Act, present petition has become infructuous and is liable to be dismissed. It is stated that an amount of Rs.26,136/- is still due being the arrears of rent against petitioner and his brother. It is stated that the petition is liable to be dismissed on the ground of non-joinder of necessary party i.e. Manoj Singhal.
5. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
6. The provision under S. 44 of the DRC Act says:
44. Landlords duty to keep the premises in good repair. - (1) Every landlord shall be bound to keep the premises in good and tenantable repairs.
(2) If the landlord neglects or fails to make, within a reasonable time after notice in writing, any repairs which he is bound to make under sub-section (1) the tenant may make the same himself and deduct the expenses of such repairs from the rent or otherwise recover them from the landlord:
Provided that the amount so deducted or recoverable in any year shall not exceed one- twelfth of the rent payable by the tenant for that year.
(3) Where any repairs without which the premises are not habitable or usable except with undue inconvenience are to be made and the landlord neglects or fails to make them after notice in writing, the tenant may apply to the Controller for permission to make such repairs himself and may submit to the Controller an estimate of the cost of such repairs, and, thereupon, the Controller may, after giving the landlord an opportunity of being heard and after considering such estimate of the cost and making such inquires as he may consider necessary, by an order in writing, permit the tenant to make such repairs at such cost as may be specified in the order and it shall thereafter be lawful for the tenant to make such repairs himself and to deduct the cost thereof, which shall in no case exceed the amount so specified, from the rent or otherwise recover it from the landlord:
Provided that the amount so deducted or recoverable in any year shall not exceed one- RC ARC No : 85/2021 Sh. Ashok Kumar Singhal Vs. Smt. Pramila Sahu 2 of 7 half of the rent payable by the tenant for that year:
Provided further that if any repairs not covered by the said amount are necessary in the opinion of the Controller, and the tenant agrees to bear the excess cost himself., the Controller may permit the tenant to make such repairs.
7. What is required to be examined in the present application under Section 44 of the Act is the physical condition of the tenanted premises and the fact whether the same requires repairs or not.
8. In Lekh Ram Khari vs Krishan Kumar Vohra - 61 (1996) DLT 584 & in Phelps & Co. vs Shalimar Paints- 1980 RLR 646: In both these judgments, it has been held that the landlord is bound to keep the premises in good repair and if the landlord does not make repairs, tenant can get the repairs done himself and can deduct the cost of the same from the rent. In Khajabi & Ors. vs. Maruja Saheb 1983 SCC OnLine Kar. 33 wherein it has been held that it is duty of the landlord to keep the building in a habitable and reasonably good condition.
9. In Phelps & Co. vs Shalimar Paints- 1980 RLR 646, it has been held that :
....................... Under the Delhi Rent Control Act, the Landlord is bound to keep the premises in good repair. Then it is provided in Section 44 (2) of the Delhi Rent Control Act that if the landlord does not make the repairs after getting notice and a reasonable time has passed, then the tenant can get the repairs done himself and deduct one month's rent-this is the maximum amount he can deduct in one year. It is further provided in Sub-Section (3) that if repairs are such without which the premises are not habitable or useable, then the tenant can give the landlord a notice and can apply to the Controller who may after taking into consideration the estimate of the cost of the repairs grant the permission for the repairs to, be made. In such a case, the Controller gives to the tenant the authority to make repairs at the expense of the landlord. Even for such repairs not more than half the yearly rent can be deducted from the landlord. If the estimated cost is more, the Controller may permit the tenant to bear the extra cost over and above the half yearly rent.............
................... The repairs in the present case, such as the proposed replacement of the roof, are almost certainly likely to exceed more than one month's rent, and probably, even more than a year's rent. This is a mere estimate by myself keeping in view the present cost of construction and the other rents in the Connaught Place area. In any case, here the landlord did not carry out the repairs after due notice, so the tenant is entitled to carry out the repairs under S. 44 (2) DRC Act. If he does carry on these repairs, he can deduct not more than one month s rent as his expense. He could also apply u/s 44(3) to the Controller and in that case he might have got an order allowing him to deduct six months' rent. It is for the tenant to choose which is the preferable method for effecting the repairs. But this does not mean that tenant can make any repairs he likes and change the house by making unauthorised constructions and saying they are repairs. The repairs have to be repairs only, i.e., reconditioning and reconstructing to restore what was there earlier. In other words, repairs is nothing more than reinstatement of the original shape which may have deteriorated through the passage of time and thus decayed. It is not the substitution of something new or construction of anything other than something which existed earlier at the place. Repairs is nothing more or less than re-instatement of the original. It means bringing into being that was already there... it is a renovation and nothing more.
10. In the case at hand, from the pleadings of the parties, it is an admitted fact RC ARC No : 85/2021 Sh. Ashok Kumar Singhal Vs. Smt. Pramila Sahu 3 of 7 that the petitioner is a tenant of the respondent of Godown no. 9 A, Plot no. 483/48A, Sahu Compound, G.T. Road, Near Old Seemapuri, Shahdara, Delhi- 110095 and is running business in the name and style of M/s. New Ganesh Roadlines.
11. For the purpose of the present petition under S. 44 DRC Act it is irrelevant that the co-tenant/brother of the petitioner is not made a party herein as the basic purpose of this section is that the landlord is bound to keep the premises in good repair and if the landlord does not make repairs, tenant can get the repairs done himself and can deduct the cost of the same from the rent. Thus, the present petition is not barred for non-joinder of Mr. Manoj Singhal.
12. The petitioner in para no. 3 of the present petition has specifically pleaded that The construction of the said property is old one and due to the lapse of time, construction of the godown has become weak especially the walls of the godown and due to this the main gate/shutter installed in the property has fallen down in the first week of February, 2021. It is stated that the petitioner is not able to close the shutter of the property, while the costly goods of the customers of the petitioner is lying inside the godown/property which is not safe since the main gate/shutter has already been diminished. Also the surface of the property has already been lowered down upto 3-4 feet due to the passage of time and the stairs to go inside the property has also been collapsed and as such petitioner is suffering irreparable loss. But in reply to the said para the respondent has not denied the above and even the photographs filed by the petitioner showing the condition of the shutter and the shop has not been denied by the respondent in his reply.
13. From the pleadings of the parties, It is an admitted fact that on the date of filing of this petition on 25.03.2021 the rate of rent of the said tenanted premises was Rs. 3,194/- per month.
14. The contention of the counsel for the respondent that vide notice dated 01.10.2021 the respondent has called upon the petitioner and his brother Manoj Singhal to pay rent wef 01.11.2021 @ Rs. 3513.40 per month so the present RC ARC No : 85/2021 Sh. Ashok Kumar Singhal Vs. Smt. Pramila Sahu 4 of 7 petition is not maintainable & is barred by S. 3 (c ) of DRC Act is of no relevance as the petition herein has been filed on 25.03.2021 when the rate of rent of the said tenanted premises was Rs. 3,194/- per month. Thus, this petition is maintainable.
15. From the pleadings of the parties, it is not specifically denied by the respondent that a notice dated 18.02.2021 was received by him from the petitioner regarding the detoriating conditions of the said tenanted premises and requirement of necessary repairs. It has also not been specifically denied by the respondent that he had sent a reply dated 24.02.2021 to the petitioner in this regard.
16. Also, the respondent has not brought forth any photographs to show that he has made repairs in the said shop. Also, it has not been stated by the respondent in his reply that he had made necessary repairs in the shop in question. Thus, clearly, the respondent has neglected in repairing the said shop. Also, no permission granted to the petitioner to carry out necessary repairs has been placed on record by the respondent.
17. In the present case there is a clear, unambiguous admission by respondent of the case of the petitioner.
18. From the perusal of repairs/work sought to be done by the petitioner, it is clear that he is seeking various overhauling of the tenanted premises. However, the petitioner can only be allowed to perform only such works which come within the definition of "Repairs". As a matter of fact and common knowledge, no specific yardstick can be laid down as to what constitutes a repair. However, guidance can be taken from the following judgments wherein some specific acts were held to be "repairs" within the permissible rights of a tenant; in Ullal Dinkar Rao v. M. Ratna Bai, AIR 1958 Mys 77, ..... the distinction between 'repairs' and 'reconstruction' or 'replacement' or 'removal' was dealt with and explained in a Mysore case. On a consideration of several English cases the law was laid down in these terms:
"The meaning to be given to the word 'repair' in Section 11(2) depends upon the context in which occurs. A repair may require a renewal or replacement but all replacements or renewals are not necessarily repairs. There is an essential difference, in the case of building, between a repair and a construction. While the restoration of the stability or safety of a subordinate or subsidiary part of a building or any portion of it, can, in law be considered as a repair, the reconstruction of the entirety of the subject-matter cannot be so regarded".
19. In Phelps & Co. v. Shalimar Paints, 1980 RLR 646, it was held:
RC ARC No : 85/2021 Sh. Ashok Kumar Singhal Vs. Smt. Pramila Sahu 5 of 7 Repair is nothing more than reinstatement of the original shape which may have deteriorated through the passage of time and thus decayed.
20. In Nayak Kalidas Motiram v. Menaben, AIR 1975 Guj 36, it was held:
Reconstruction of one of the four walls on account of rains or other external cause has been held to be tenant- able repair.
21. In Prond Feat vs. Hard (1890) 25 QBD 42 it was observed:
Replacement of any part including the floors or roof or internal walls, which become defective or dangerous owing to lapse of time or the effect of elements, repairs as are sustainable for the building having regard to the age and class.
22. Keeping in view the aforesaid admissions of the respondent and aforesaid case laws the shop in question is required to be repaired but under the grab of "repair", the petitioner cannot be allowed to reconstruct the entire shop. Accordingly it is held as under:
(i) Raising the height of the shop in question from ground level to the level of road cannot be permitted (as it will involve raising the height of the shop from top also) but he can fill up and equal the below portion of the shop in question to the level of road and make a cemented floor.
(ii) The height of the shop cannot be allowed to be raised from the top side which will require complete restructuring of the shop which needs raising construction of supporting walls and relaying of new roof structure which cannot be said to be a repair but it amounts to reconstruction.
(iii) The stairs of the godown is permitted only to be repaired and plastered.
(iv) The tenant is permitted to make necessary repairs which include plastering, white wash, paint work, etc in the internal walls, front side wall and ceiling of the shops in question.
(v) Keeping in view that the shutter and main door of the shop is in dialapidated condition and has already fallen off, the tenant is permitted to affix a new shutter and door/ repair and install the old shutter and door in the shop.
(vi) The tenant is also permitted to raise the height of the shutter upto the level of ceiling of the godown by constructing a proper beam support on the top side beneath the lanter (roof) and for that purpose he can remove the front side wall above the existing shutter, in the equal width of shutter.
23. Conclusion In the light of above said facts and circumstances, the application under Section 44 of the Act is allowed to do repairs as above but keeping in view RC ARC No : 85/2021 Sh. Ashok Kumar Singhal Vs. Smt. Pramila Sahu 6 of 7 the large scale of repairing works required in the shop in question and that the petitioner has not furnished estimate of the cost of such repairs the petitioner is directed to bear entire expenses for the same at his own cost without claiming any adjustment of rent. He is also directed to take photographs of the shop in question before starting of the repairs and after completion of the repair work and to place them on record within 03 months. Thereafter file be consigned to record room. Digitally signed by SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2021.12.11 15:03:17 +0530 Announced in open Court (SNIGDHA SARVARIA) on 21st Day of December, 2021. ACJ/ARC/CCJ [This judgment contains 7 pages.] (SHAHDARA) KKD, DELHI.
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