Delhi District Court
R/O Peergaib Pulia vs Sachin Gupta on 30 July, 2010
IN THE COURT OF SH. BALWANT RAI BANSAL
ARC(CENTRAL), TIS HAZARI COURTS, DELHI
E101/10
Syed Athar Ali S/o Late Syed Ibad Ali
R/o Peergaib Pulia,
Moradabad, U.P.
...... Petitioner.
Versus
Sachin Gupta
S/o Pratap Singh Gupta
R/o H. No. 3008, Gali Kalka Mishra,
Ballimaran, Delhi 110006
...... Respondent.
Eviction Petition u/s 14 (1) (a), (b) & (j) of Delhi Rent Control Act
Date of Institution of the case : 26.04.2005
Date of Judgment reserved : 19.07.2010
Date of Judgment pronounced : 30.07.2010
E101/10 1/26
JUDGMENT:
1. The present petition is an eviction petition filed by the petitioner u/s 14 (1) (a), (b) & (j) of Delhi Rent Control Act against the respondent.
2. Brief facts, as stated in the petition, are that the petitioner is the owner/landlord of the suit premises i.e. one shop bearing No. 4666, Ward VI, Charkhewalan, Ballimaran, Delhi 110006 which was let out to the respondent vide rent agreement dated 01.11.1999 @ Rs. 330/ p.m. It is stated that the respondent has neither paid nor tendered the whole arrears of rent due from August, 2001 to December, 2002 despite service of legal notice dated 01.08.2001. However, he started paying monthly rent from 24th December, 2002 and also deposited a sum of Rs. 6,000/ in the Court which the petitioner has withdrawn. It is further stated that the respondent has sublet, assigned or otherwise parted with the possession of the suit property without consent of the petitioner to his father Sh. Pratap Singh Gupta who is in full control of the shop, mezzanine floor and the business being run in the said shop. It is further stated that the respondent in collusion with the subtenant has unauthorizedly constructed one mezzanine floor, staircase leading to the mezzanine floor and opened a gate towards Gali Paswan without the knowledge of the petitioner and without any sanction from E101/10 2/26 MCD. It is further stated that the respondent has used inferior quality of building material in the unauthorized construction and same may fall at any time causing damage to the lives and properties of the inmates and customers as well as passerby. Hence, the present petition has been filed and it has been prayed that an eviction order may be passed in favour of the petitioner and against the respondent in respect of suit premises.
3. The respondent has contested the present petition and filed the written statement contending that the grounds of section 14 (1) (a) of DRC Act are not applicable in the present petition as the respondent has complied with the legal notice dated 01.08.2001 and has deposited the arrears of rent from August, 2001 to December, 2002 u/s 27 of DRC Act in the Court of Sh. V.K. Khanna, the then Ld, ARC, Delhi which the petitioner has already withdrawn and from 24.12.2002 onwards the respondent has been paying the rent to the petitioner directly. It has been denied that the respondent has sublet, assigned or otherwise parted with the possession of the suit property to his father Sh. Pratap Singh Gupta without consent of the petitioner and further that the father of the respondent is in full control of the suit premises. It is stated that the respondent is in actual and physical possession of the tenanted premises and the father of the respondent is sitting in the tenanted E101/10 3/26 premises along with the respondent just to help the respondent only for a short period of time of the day. It has been denied that one shop as shown at Mark A in the site plan filed by the petitioner was let out to the respondent and the respondent unauthorizedly constructed one mezzanine floor or staircase leading to the mezzanine floor or opened a gate towards Gali Paswan without the knowledge of the petitioner. It is stated that the respondent has not carried out any addition, alteration or unauthorized construction from any corner at any point of time and the suit premises is in its original condition as was let out to the respondent and in fact the portion shown in green colour in the site plan filed by the petitioner is the tenanted portion which was let out to the respondent but the petitioner has intentionally mentioned the green colour portion as unauthorized and illegal construction. It is further stated that the suit premises is situated in the busy vicinity of Chandni Chowk where the price of the property are raising day by day and, therefore, just to vacate the suit premises from the respondent , the petitioner has filed the present petition on false grounds. The respondent has prayed for dismissal of the petition.
4. The petitioner has filed the replication to the written statement filed by the respondent in which the averments made in the petition are reiterated and reaffirmed and the averments made E101/10 4/26 in the written statement are stated to be wrong and controverted.
5. Thereafter, in order to prove his case, the petitioner has examined himself as PW1 and has filed his evidence by way of affidavit as Ex. PW1/A in which he reiterated the averments made in the petition. He has placed on record the site plan as Ex. PW1/1, copy of legal notice dated 01.08.2001 as Ex. PW1/2, postal receipt as Ex. PW1/3 and report made by Sr. Superintendent of post office, Moradabad Division as Ex. PW1/4. He has also placed on record the original rent deed which is Ex. PW1/5, certified copy of the inspection report of house tax for the year 197677 which is Ex. PW1/6, original counter foils dated 01.03.1997, 30.10.1999 and 01.11.1999 which are Ex. PW1/7 to Ex. PW1/9. Original counter foils dated 30.05.1975, 09.04.1990, 03.01.1991, 24.12.2002, 03.11.2003, 06.05.2004 and 10.03.2005 are Ex. PW1/10 to Ex. PW1/16, certified copy of the slum order dated 16.02.2005 is Ex. PW1/17, certified copy of affidavit of Sachin Gupta filed in the Slum court dated 05.07.2004 is Ex. PW1/18, photographs with negatives of the shutters of the premises in dispute are Ex. PW 1/19 and Ex. PW1/20, certified copy of sale deed is Ex. PW1/21, certified copy of application for deposit of rent is Ex. PW1/22, certified copy of objections filed by the petitioner is Ex. PW1/23, certified copy of ordersheet of the Court of Sh. V.K. Khanna, E101/10 5/26 ARC, Delhi is Ex. PW1/24 and counterfoil of rent receipt dated 05.12.2005 is Ex. PW1/25.
6. The petitioner has also examined Mohd. Noor Alam, Draftsman as PW2 who has deposed in his examinationinchief that he has prepared the site plan Ex. PW1/1 after taking the measurement at the spot and same is correct and according to the site.
7. Another witness examined by the petitioner as PW3 is Mohd. Rehan who has filed his evidence by way of affidavit which is Ex. PW3/A in which he has deposed that petitioner is the owner of the suit premises and the respondent is tenant under the petitioner in respect of the suit premises and the rent agreement between the parties was executed in his presence on 01.11.1999 and terms and conditions were settled accordingly. He has further deposed that the respondent signed and thumb marked the rent agreement in his presence and he also signed this agreement of tenancy as an attesting witness and other attesting witness was Sh. Pratap Singh. He has further deposed that the mezzanine floor, staircase and the gate were not in existence at the time of letting out the shop to the respondent and execution of the agreement of tenancy and the respondent has unauthorizedly constructed the same and divided the shop in question in two different portions i.e. E101/10 6/26 one shop on the ground floor and one completely separate mezzanine floor with staircase from Gali Paswan and gate leading to staircase. PW3 has also deposed that the respondent has sublet, assigned or otherwise parted with the possession of the entire suit property to Sh. Partap Singh Gupta who is in full control of the shop and mezzanine floor and the business being run by him in the tenanted shop.
8. On the other hand, the respondent has examined himself as RW1 and filed his evidence by way of affidavit which is Ex. RW1/A in which he has deposed on the similar lines as stated in the written statement filed by him.
9. The next witness examined by the respondent as RW2 is Sh. Rajinder Ahlawat, LDC from Sales Tax Department who has brought the summoned record i.e. the registration certificate of M/s Shri Sai Hardware situated at 4666, Near Gali Paswan, Charkhewalan, Chawri Bazar, Delhi which is Ex. RW2/1. He has deposed that the respondent is the proprietor of the said firm and he is filing the sales tax return regularly of the said firm as proprietorship concern. He has brought the certificate of out station sales copy of which is Ex. RW2/2 and certificate of local sales and out station sales copy of which is Ex. RW2/3 (Colly.)
10. The respondent has also examined Sh. Rajbir Singh from E101/10 7/26 Income Tax Department as RW3 who has brought the income tax return of respondent who is proprietor of M/s Shri Sai Hardware situated at 4666, Near Gali Paswan, Charkhewalan, Chawri Bazar, Delhi for the financial year 20052006 and for the financial year 20062007 copy of which are Ex. RW3/1 (Colly) (though marked as Ex. RW2/3) and Ex. RW3/2 (Colly) respectively.
11. I have heard the Ld. counsel for the parties and perused the record carefully.
12. Ground U/s 14(1)(a) of DRC Act The ingredients required to be proved for the ground u/s 14 (1)
(a) of DRC Act are:
(i) Existence of relationship of landlord and tenant between the parties;
(ii) Existence of arrears of rent, legally recoverable rent from the date of notice of demand; and
(iii) Service of notice of demand in the manner as provided in section 106 of the Transfer of Property Act and
(iv) Failure of tenant to pay or tender the whole of the arrears of rent legally recoverable from him within two months of date of service of notice.
13. There is no dispute so far relationship of landlord and tenant between the parties is concerned. There is also no dispute E101/10 8/26 regarding the rate of rent of the suit premises to be Rs. 330 p.m. However, the petitioner has alleged that the respondent is in arrears of rent which he has failed to pay despite service of legal notice dated 01.08.2001. On the other hand, the respondent has contended that there is no cause of action in filing the petition u/s 14 (1) (a) of DRC Act as arrears of rent from August, 2001 to December, 2002 was deposited by the respondent u/s 27 of DRC Act in the court which the petitioner has already withdrawn.
14. There is no dispute so far the service of legal notice dated 01.08.2001 Ex. PW1/2 is concerned. A perusal of legal notice dated 01.08.2001 Ex. PW1/2 shows that the petitioner has demanded the arrears of rent from the respondent w.e.f. 01.12.1999 till date. The petitioner himself has placed on record the application for deposit of rent u/s 27 of DRC Act filed by the respondent which is Ex. PW1/22 by which rent for the period 01.12.1999 to 31.07.2001 has been deposited by the respondent. A perusal of Ex. PW1/22 reveals that rent for the period 01.12.1999 to 31.07.2001 has been deposited by the respondent on 05.08.2001 on the ground that when the rent was tendered to the respondent (petitioner herein) personally, he refused to accept the same. The petitioner has filed the objections in the said DR application which is Ex. PW1/23 and the said DR application was allowed without E101/10 9/26 prejudice to the rights and contentions of the parties by the Ld. ARC, Delhi vide order dated 01.11.2002 which is Ex. PW1/ 24.
15. Further, PW1 who is petitioner himself has admitted in his crossexamination that the rent which he has mentioned in his demand notice has been received by him which was withdrawn by him from the court of Sh. V.K. Khanna, the then Ld. ARC, Delhi. As such, when the rent for the period period from 01.12.1999 to 31.07.2001 was tendered to the petitioner personally and after being refused, the respondent has deposited the rent for the said period on 05.08.2001 u/s 27 of DRC Act as demanded vide legal notice Ex. PW1/2 within two months of its service, it cannot be said that the respondent has failed to pay or tender the arrears of rent as demanded vide legal notice Ex. PW1/2. Hence, there is no cause of action in filing the present petition u/s 14 (1) (a) of DRC Act and, therefore, present petition is dismissed under this ground.
16. Ground U/s 14(1)(b) of DRC Act 14 (1) (b) of DRC Act reads as under: That the tenant has on or after the 9th day of 1952 sub let, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord.
17. The petitioner has contended that the respondent has sub E101/10 10/26 let, assigned or otherwise parted with the possession of the suit property without consent of the petitioner to his father Sh. Pratap Singh Gupta who is in full control of the shop, mezzanine floor and the business being run in the said shop. The respondent has denied the same and has contended that he is in actual and physical possession of the tenanted premises and his father is sitting in the tenanted premises along with him just to help him only for a short period of time of the day.
18. The onus was upon the petitioner to prove that the respondent has sublet, assigned or otherwise parted with the possession of the suit property to his father Sh. Pratap Singh Gupta. In this regard the petitioner has stated in his evidence that respondent has sublet, assigned or otherwise parted with the possession of the suit property without consent of the petitioner to his father Sh. Pratap Singh Gupta, who is in full control of the shop, mezzanine floor and the business being run in the said shop. In the crossexamination, the petitioner has denied the suggestion that Pratap Singh is the father of the respondent. He further denied the suggestion that the respondent has not sublet the premises to his father. He has also denied the suggestion that the father of the respondent is working as Manager of the respondent and look after the affairs of the business. He further denied the suggestion that the E101/10 11/26 premises is in sole and exclusive legal possession of the respondent.
19. PW3 Mohd. Rehan also stated in his evidence that the respondent has sublet, assigned or otherwise parted with the possession of the entire suit property to Sh. Pratap Singh Gupta who is in full control of the shop and mezzanine floor and the business being run by him in the tenanted shop. In the cross examination, PW3 stated that the petitioner is known to him since his childhood and he has visiting terms with the petitioner and the petitioner is his distant relative. He further stated that petitioner is his uncle. He denied the suggestion that the respondent has not sub let, assigned or parted with the possession of the tenanted premises to any other person. He further denied the suggestion that the respondent is in legal and physical possession of the tenanted premises. He also denied the suggestion that Sh. Partap Singh Gupta is not in full control of the shop, mezzanine floor and further that he is not running any business in the tenanted shop. He further denied the suggestion that Sh. Sachin Gupta is exclusively running his business in the tenanted shop.
20. On the other hand, the respondent who has examined himself as RW1 has stated in his evidence that the actual physical legal possession of the tenanted premises is exclusively with him E101/10 12/26 and he has never sublet, transferred, assigned or parted with the possession of the tenanted premises to any person at any stage of time. He has further deposed that he has full control of the shop and his father Sh. Pratap Singh Gupta used to sit occasionally in the tenanted premises along with him just to help him for a short period of time of the day and at present his father is working as a Manager of the respondent for running the shop. In the cross examination he stated that his father was tenant in the suit premises prior to him and after surrender of tenancy, he took the premises on next day. He denied the suggestion that he is not in possession of the shop or that his father is doing the work. He stated that his father is Manager @ Rs.10,000/p.m.
21. In view of aforesaid evidence of the parties, it has emerged that initially the father of the respondent Sh. Partap Singh Gupta was the tenant in the suit premises and thereafter he surrendered his tenancy and the respondent was inducted as a tenant in the suit premises. Now, the petitioner has alleged that the respondent has sublet, assigned or otherwise parted with the possession of the entire suit premises to his father Sh. Pratap Singh Gupta who is in exclusive control of the suit premises and is doing his independent business in the suit premises. First of all, the petitioner has not disclosed when the alleged subtenancy has been E101/10 13/26 created by the respondent in favour of his father. The petitioner has only taken a bald plea that Sh. Pratap Singh Gupta is in exclusive possession and control of the suit premises. There is nothing on record to show that Sh. Pratap Singh Gupta is in exclusive control of the suit premises or that he is running his independent business in the suit premises. The petitioner has not placed on record any single document to show what business is being run by Sh. Pratap Singh Gupta or how he is in exclusive control of the suit premises.
22. On the other hand, the respondent has stated that he is in full control and occupation of the suit premises and is doing his business in the suit premises. The respondent has also placed on record various documents to show that he is proprietor of M/s Shri Sai Hardware, which is running its business from the suit premises. In this regard, RW2 Sh. Rajinder Ahlawat, LDC from Sales Tax Department has placed on recored the registration certificate of M/s Shri Sai Hardware situated at 4666, Near Gali Paswan, Charkhewalan, Chawri Bazar, Delhi which is Ex. RW2/1. He has deposed that the respondent is the proprietor of the said firm and he is filing the sales tax return regularly of the said firm as proprietorship concern. He has also placed on record the certificate of out station sales copy of which is Ex. RW2/2 and certificate of local sales and out station sales copy of which is Ex. RW2/3 E101/10 14/26 (Colly.). In the crossexamination of this witness, nothing material could come out. He categorically stated in the crossexamination that the certificate Ex. RW2/1 is on the basis of some application and documents. He further stated that Ex. RW2/1 and Ex. RW2/2 are the originals which are in their files.
23. Similarly, another witness examined by the respondent as RW3 Sh. Rajbir Singh from Income Tax Department has brought the income tax return of respondent for the financial year 2005 2006 and for the financial year 20062007 copy of which are Ex. RW3/1 (Colly) and Ex. RW3/2 (Colly) respectively which go to show that the respondent is proprietor of M/s Shri Sai Hardware situated at 4666, Near Gali Paswan, Charkhewalan, Chawri Bazar, Delhi.
24. All the aforesaid documents placed on record by the respondent's witnesses go to show that the respondent has been running the business of M/s Shri Sai Hardware from the suit premises of which he is sole proprietor. The documents placed on record by RW2 i.e. Ex. RW2/1 is Delhi Sales Tax form, Ex. RW2/2 is CST form of the year 2000 and Ex. 2/3 is assessment order from the sales tax dated 12.02.2004. Similarly, documents placed and proved by RW3 are income tax return of respondent at the suit premises address for the financial year 20052006 as Ex. E101/10 15/26 RW3/1 (Colly) (though marked as Ex. RW2/3) and for the financial year 20062007 as Ex. RW3/2 (Colly) and all these documents go to show that the respondent is sole proprietor of M/s Shri Sai Hardware and he has been doing the business of the said firm M/s Shri Sai Hardware from the suit premises.
25. Ld. Counsel for the petitioner has relied upon the affidavit filed by the respondent in the Slum Court dated 05.07.2004 which is Ex. PW1/18, in which it has been stated by the respondent that he is assisting his father in his business and he himself is not doing any business. The Ld. Counsel for the petitioner has argued that on the basis of said affidavit Ex. PW 1/18 it is established that the respondent has sublet, assigned or parted with the possession of the suit premises to his father Sh. Partap Singh Gupta. However, I am not in agreement with the argument of the Ld. Counsel for the petitioner. A perusal of the affidavit Ex. PW1/18 reveals that the said affidavit was filed by the respondent in the slum proceedings initiated by the petitioner against the respondent seeking permission to file the present eviction petition.
26. Although, in the affidavit Ex. PW1/18, the respondent has stated that he is assisting his father in his business and he himself is not doing any business, but nowhere in the said affidavit E101/10 16/26 it has been stated by the respondent that he has not been doing the business from the suit premises. Moreover, even if the respondent has stated so in his affidavit Ex. PW1/18, then also material available on record in the present case cannot be discarded and on the basis of affidavit Ex. PW1/18 it cannot be concluded that the respondent has sublet, assigned or parted with the possession of the suit premises to his father. There are various documents placed on record from the Govt. Department which are Ex. RW2/1 to Ex. RW2/3 and Ex. RW3/1 and Ex. RW3/2, authenticity of which cannot be doubted and these documents show that the respondent has been running the business of M/s Shri Sai Hardware from the suit premises being its sole proprietor. Therefore, on the basis of affidavit Ex. PW1/18 filed by the respondent in the Slum Court and further in the absence of any other evidence that Sh. Pratap Singh Gupta is doing his business in the suit premises and he is in exclusive possession of the suit premises, it cannot be inferred that the respondent has sublet, assigned or parted with the possession of the suit premises to his father Sh. Partap Singh Gupta.
27. Ld. Counsel for the respondent has also argued that the falsity of the claim of the petitioner is evident from the fact that even the petitioner has disputed that Sh. Partap Singh Gupta is father of the respondent and in this regard the Ld. Counsel for the E101/10 17/26 respondent has drawn my attention to the suggestion given by him to PW1 who is petitioner himself that Sh. Partap Singh Gupta is father of the respondent which was denied by PW1. On the other hand, it is admitted case of the petitioner that prior to induction of the respondent in the tenanted premises, Sh. Pratap Singh Gupta, the father of the respondent was a tenant in the suit premises.
28. The Ld. Counsel for the petitioner has relied upon the authority titled as Duli Chand Vs. Jagmender Dass RCR 1990. have gone through the authority relied upon by the Ld. Counsel for the petitioner, but in the facts and circumstances of the case, the said authority is not applicable in the present case.
29. On the other hand, the Ld. Counsel for the respondent has relied upon Jagan Nath (deceased) through LRs Vs. Chander Bhan & Ors 36 (1988) DLT 267 SC) in which it has been held that, "It is a settled law that parting with possession means giving possession to persons other than those to whom possession had been given by lease and the parting with possession must have been by the tenant; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as E101/10 18/26 the tenant retains the right to possession, there is no parting with possession in terms of clause (b) of section 14(1) of the Act.
30. The Ld. Counsel for the respondent has also relied upon the authority titled as Dipak Banerjee Vs. Smt. Lilabati Chakraborty, AIR 1987 SC 2055 in which has been held that, "There was no evidence that the subtenant was in exclusive possession of the portion and that he paid any rent, held that there was no creation of subtenancy".
31. In view of aforesaid discussions, there is nothing on record to show that father of the respondent Sh. Partap Singh Gupta is doing his independent business in the suit premises, whereas the respondent has placed on record overwhelming evidence to prove that he is doing the business of M/s Shri Sai Hardware from the suit premises as a sole proprietor of the said firm. As such, the petitioner has miserably failed to prove that the respondent has sublet, assigned or otherwise parted with the possession of the suit premises to his father Sh. Partap Singh Gupta who is in exclusive control of the suit premises and is doing his business in the suit premises. Hence, no ground is made out u/s 14 (1) (b) of DRC Act and the present petition under this ground is dismissed.
32. Grounds u/s 14 (1) (j) of DRC Act The ingredients required to be proved for the ground u/s 14 (1) E101/10 19/26
(j) of DRC Act are:
Whether before or after the commencement of this Act,
(i) the tenant has caused substantial damage to the premises or
(ii)the tenant has permitted to cause substantial damages to the premises.
33. The petitioner has alleged that the respondent has caused or permitted to be caused substantial damage to the property in suit by unauthorizedly constructing one mezzanine floor, staircase leading to the mezzanine floor and opened a gate towards Gali Paswan without the knowledge of the petitioner and without any sanction from MCD. It is further stated that the respondent has used inferior quality of building material in the unauthorized construction and same may fall at any time causing damage to the lives and properties of the inmates and customers as well as passerby. The respondent has denied the same and has contended that there is no addition, alteration or unauthorized construction from any corner at any point of time and the suit premises is in its original condition as was let out to the respondent and in fact the portion shown in green colour in the site plan filed by the petitioner is the tenanted portion which was let out to the respondent but the petitioner has intentionally mentioned the green colour portion as unauthorized and illegal construction.
E101/10 20/26
34. In order to succeed under this ground, it was for the petitioner to prove that at the time of letting out the suit premises to the respondent there was no mezzanine floor, staircase leading to the mezzanine floor and a gate towards Gali Paswan and same was unauthorizedly constructed by the respondent which has caused substantial damage to the property in question and has also diminished the utility of the suit premises. Moreso, when the respondent has categorically taken a stand that suit premises is in its original condition as was let out to the respondent. However, the petitioner has failed to place on record any single document to show that what was the condition of the suit premises at the time of letting out the same to the respondent. In this regard, PW1 who is petitioner himself has categorically stated in the crossexamination that, "It is correct that I have not filed any document on the record to show that while the premises was let out to the respondent the portion shown as B in the site plan was not in existence." It has also come in the evidence of PW1 that there is a duchhatti in existence in adjoining shops bearing No. 4667 and 4668 as PW1 has categorically admitted that there is a duchhatti in existence in adjoining shop bearing no.4667 as well as in 4668 as that of 4666. Therefore, it strengthens the case of the respondent that the duchhatti/mezzanine floor was in existence in the suit premises at E101/10 21/26 the time of letting out the same to the respondent.
35. The petitioner has also examined Mohd. Rehan as PW3 who has deposed in his evidence that the mezzanine floor, staircase and the gate were not in existence at the time of letting out the shop to the respondent and execution of the agreement of tenancy and the respondent has unauthorizedly constructed the same and divided the shop in question in two different portions i.e. one shop on the ground floor and one completely separate mezzanine floor with staircase from Gali Paswan and gate leading to staircase. In the crossexamination PW3 states that there are other shops adjoining to tenanted shop and the petitioner is the owner of those shops also and there is no duchhatti/ mezzanine floor in those shops. He denied the suggestion that there is duchhatti/ mezzanine floor in those adjoining shops. He stated that there are rent agreements for the adjoining shops and those rent agreements also bears his signature. He further stated that there was no site plan prepared at the time of letting out the premises and there was no photographs taken at the time of letting out the premises . He further stated that the unauthorized construction as stated in his affidavit was constructed by the respondent somewhere in the beginning of the year 2001. He further stated that he did not make any complaint to the police in this regard and he does not know if E101/10 22/26 landlord had made any complaint or not.
36. From the aforesaid testimony of PW1 and PW3, it is revealed that there are contradictions in the testimony of both the witnesses regarding the existence of duchhatti/ mezzanine floor in the adjoining shops to the tenanted shop. As per PW1, there is a duchhatti in existence in adjoining shop bearing no.4667 as well as in 4668. While PW3 has denied the same and stated in his cross examination that there is no ducchatti/mezzanine floor in the adjoining shops which are also owned by the petitioner. Therefore, the plea of the respondent gets strengthened that the adjoining shops which are owned by the petitioner have ducchatti/mezzanine floor and same was the condition in respect of the tenanted premises at the time of letting out the same to the respondent. Further, the petitioner has also failed to show what was the condition of the suit premises at the time of letting out the same to the respondent as neither any site plan of the suit property was prepared nor any photographs of suit premises were taken at the time of letting out the same which has also been admitted by PW3 in his crossexamination.
37. Another interesting aspect of the matter is that the petitioner has not disclosed either in the petition or in the evidence that when the said unauthorized construction was carried out by the E101/10 23/26 respondent. However, PW3 Mohd. Rehan has stated in his cross examination that the unauthorized construction was carried by the respondent somewhere in the beginning of the year 2001. It is highly improbable that if a tenant unauthorizedly constructs a duchhatti/ mezzanine floor, a staircase leading to the mezzanine floor and also opens a gate, the landlord would keep silent and would not take any action against the tenant for unauthorized construction. PW3 has categorically stated in his cross examination that he has not made any complaint to the police in this regard and he does not know if landlord had made any complaint or not. It is also not the case of the petitioner that he has made any complaint to the police or any other authority for the alleged unauthorized construction carried out by the respondent.
38. Ld. Counsel for the petitioner has argued that the inspection report Ex. PW1/6 carried out by DDA shows that there was only one shop in premises no. 4666 and it does not find any mention of duchhatti and it goes to show that the ducchatti has been constructed by the respondent unauthorizedly and the respondent has caused substantial damage to the property in question.
39. A perusal of document Ex. PW1/6 shows that same is inspection report carried out by DDA and Sh. Pratap Singh has E101/10 24/26 been shown as occupier of the premises no. 4666, ground floor which consists of one shop measuring 16'x8'. Although, there is no mention of ducchatti/ mezzanine floor in the premises no. 4666 in the said inspection report Ex. PW1/6, but it does not prove the case of the petitioner that it is the respondent who has constructed the ducchatti/ mezzanine floor in the premises because the said inspection report Ex. PW1/6 shows the name of Sh. Partap Singh as a tenant in the premises no.4666 in the year 197677 and the respondent was inducted as a tenant in the suit premises on 01.11.1999 vide rent agreement Ex. PW1/5. It is categorical case of the respondent that the suit premises is in its original condition as was let out by the petitioner to him. Therefore, it was for the petitioner to prove that at the time of letting out the suit premises to the respondent, ducchatti/ mezzanine floor was not in existence in the suit premises and it is the respondent who has unauthorizedly constructed the same later on.
40. But, as discussed herein above, the petitioner has failed to produce any single document or evidence to show that what was the condition of the suit premises at the time of letting out the same to the respondent as no site plan was prepared at the time of letting out the suit premises to the respondent nor any photographs of the suit premises were taken. As such, the inspection report Ex. PW E101/10 25/26 1/6 which shows Sh. Partap Singh as a tenant of one shop does not help the case of the petitioner because the petitioner was required to prove the condition of the suit premises at the time of letting out the same to the respondent in the year 1999 and not to his father.
41. In view of aforesaid discussions, in the absence of any cogent evidence regarding the condition of the suit premises at the time of letting out the same to the respondent, it cannot be said that the mezzanine floor, staircase leading to mezzanine floor and a gate was unauthorizedly constructed by the respondent which has caused substantial damage to the property in question. Hence, no ground is made out u/s 14 (1) (j) of DRC Act and the present petition under this ground is also dismissed. No order as to cost.
File be consigned to record room.
Announced in the open court (Balwant Rai Bansal) on 30 July, 2010 th ARC, Central, Delhi E101/10 26/26 E101/10 30.07.2010 Present: None.
Vide my separate judgment announced in the open court, the present petition u/s 14 (1) (a), (b) and (j) of DRC Act is dismissed. No order as to cost.
File be consigned to Record Room.
(B.R. Bansal) ARC (Central), Delhi/30.07.2010 E101/10 27/26