Delhi District Court
Sh. Bhadra Sain Sethi vs Smt. Saroj Bala Talwar on 19 May, 2010
IN THE COURT OF SH. PARVEEN SINGH, ARC (NE),
COURT ROOM NO. 53, KARKARDOOMA COURTS, DELHI.
R07/08
Unique Case ID No.02402C0370542008
IN THE MATTER OF:
SH. BHADRA SAIN SETHI
724, BABAR PUR ROAD,
WEST ROHTASH NAGAR,
SHAHDARA,
DELHI32. .... PETITIONER
VERSUS
SMT. SAROJ BALA TALWAR
W/O LATE SH. KEWAL KRISHAN
724, BABAR PUR ROAD,
WEST ROHTASH NAGAR,
SHAHDARA,
DELHI32. .... RESPONDENT
DATE OF INSTITUTION : 13.05.2008
DATE OF RESERVING THE JUDGEMENT : 10.05.2010
DATE OF JUDGEMENT : 19.05.2010
JUDGEMENT
The present petition u/S. 44 of the DRC Act has been filed by the petitioner against the respondent.
2. The case of the petitioner is that he is a tenant in respect of one shop in premises no. 724, Babar Pur Road, West Rohtash Nagar, Shahdara, Petition No. R07/08 Page 1/ 11 Delhi32. He is doing the business therein under the name and style of M/s. Sethi Vastra Bhandar. The rate of rent is Rs.467/ p.m. He is a tenant for the last more than 30 years. It is further submitted that the respondent wants the shop to be vacated by any means and, no alteration or repairing has been done since the commencement of tenancy and, water comes in the shop from the roof, side of the walls and, also from the front side of the shop because, the said shop is below the road level and in rainy season so many damages, losses occurred due to this to the petitioner and the stock of the said shop is more than Rs.5.00 Lacs. The petitioner so many times requested to the respondent for the alteration or repairing of the said shop and each and every time, all efforts were in vain. The petitioner had also served a notice dated 21.07.2000 and thereafter, the respondent had given assurance that the whole alteration or repairing shall be made as soon as possible but, the respondent intentionally and deliberately, wanted to grab and vacate the said shop by hook and crook by causing harassment to the petitioner. It is further submitted that the respondent is also having a shop in the said premises and she is running her business of STD, recharge coupon of mobiles and also doing other works from her shop. Further, the respondent had repaired and constructed her shop and raised its level upto three feet high from the road and at that time also, the petitioner requested the respondent for the same but again, all efforts were in vain and then a legal notice dated 01.05.2008 was served upon the respondent through regd. AD as well as UPC and courier which was wrongly replied by the Petition No. R07/08 Page 2/ 11 respondent. It is prayed by the petitioner that an order/ decree may be granted to him for alteration or repairing of the said shop i.e. to repair walls, roof, floor, stairs etc. against the respondent with cost in respect of the tenanted premises and give directions to the respondent to make alteration or repairing of the said shop i.e. walls, roof, floor, stairs etc. at her cost and if the respondent fails to do so then allow the petitioner for alteration or repairing of the said shop and the expenses incur on the same, may be deducted from the rent, as per DRC Act.
3. The respondent on being served with the notice of the petition, filed her Written Statement. In the Written Statement, a preliminary objection was taken that the petitioner has not come to the court with clean hands and that the petition has been filed without any cause of action. A further preliminary objection is taken that the petitioner has not filed any report of the Architect to the effect that the tenanted premises requires repairs nor, the petitioner has filed any estimate/ details for the repair or the cost for the alleged repairs.
4. On merits, the relationship of landlord and tenant stands admitted. It is, however, submitted that the rate of rent is Rs.423/ p.m. It is further submitted that the tenanted shop is in good condition and no repairs are required and thus, the petitioner has no right to obtain any order of repair and that he will not suffer any loss and injury if the repairs sought are not allowed.
5. In the replication to the written statement the contents of the written statement are denied and those of the petition are reaffirmed.
Petition No. R07/08 Page 3/ 11
6. Thereafter, the parties led their respective evidence. The petitioner examined himself as PW1, one Sh. Gulshan Kumar as PW2, one Sh. Manoj Kumar as PW3 and one Sh. Rajesh Kumar, Executive (Claims) from Tata AIG General Insurance Company Ltd. as PW4. On the other hand, the respondent examined herself as RW1, one Sh. Aslam as RW2.
7. I have heard the Ld. counsels for parties and perused the record very carefully.
8. In the present case, the relationship of landlord and tenant between the parties stands admitted. Therefore, the question which needs to be decided is whether the property in question requires repairs, as alleged, or not?
9. The onus to prove the same is upon the petitioner. The petitioner appeared as PW1 and deposed that he is a tenant in respect of premises in question shown in site plan Ex.PW1/1. He further deposed that the respondent is not repairing the shop since the commencement of the tenancy and the water comes into the shop from the roof, sides of the walls and from the front side of the shop because, the said shop is below the road level and in rainy season many damages/ losses have occurred to the stock of the petitioner. Due to this, stock worth more than Rs.5.00 Lacs, has been damaged and the property is in very poor condition and is dangerous to human life/ habitation. Therefore, the petitioner many times requested the respondent for repairing of the shop but, all in vain. He further deposed that he also served a notice dated 21.07.2000, which is Ex.PW1/4 and, the same was replied vide Ex.PW1/5. Thereafter, the Petition No. R07/08 Page 4/ 11 respondent gave assurance that the repairing of the shop will be done as soon as possible, however, she did not do so. He further deposed that the respondent reconstructed the adjoining shop which is being run by her son raising its height to three feet above the road. At that time also, the petitioner requested for repairing of his shop but all in vain and, the water came from the roof of the respondent to the roof of the petitioner as well as from the side of the shop's walls due to which so many damages and losses have occurred in the shop. He further deposed that he lastly served a notice dated 01.05.2008 which is Ex.PW1/8 upon the respondent through registered AS well as UPC and courier which are Exs.PW1/7 to PW1/10. He further deposed that the shop of the petitioner is insured with Tata AIG Insurance Company Limited. The insurance documents are Exs.PW1/11 to PW1/13. He further deposed that suddenly on 08.08.2008, it rained heavily during the night and the whole shop was filled with water from the roof, walls and from the road and approximate damage was Rs.3.50 Lacs. He further deposed that he had taken photographs which are Exs.PW1/4 to PW1/32 and also filed the claim, list of damages, estimate/ quotation with insurance company which are Exs.PW1/33 to PW1/36. He further deposed that there are two photographs showing the shop of the petitioner at the road level and the shop of the respondent to be three feet above the road level which are Exs.PW1/38 to PW1/39 and there is no Patnala (drain pipe) at the shop of the respondent and the water comes on the shop of the petitioner and hence, there has been further damage due to this.
Petition No. R07/08 Page 5/ 11
10. At the time of his crossexamination, the court had observed that the documents Exs.PW1/2 and PW1/32 to PW1/39 were not on record.
11. During his crossexamination, he denied the suggestion that the height of the roof/ roof level of his shop and the other shop of the respondent adjoining his shop is the same. He denied the suggestion that from time to time the respondent has been getting the roof of the shop quoted with ceiling (cement) so as to prevent seepage. He denied the suggestion that there is no water seepage from the roof. He admitted that he had installed a false ceiling made of plywood in his shop. He denied the suggestion that the water mark as seen in the photographs has been created by him by throwing water on the sealing as well as on the walls. He admitted that he had not given any detail and estimate for the repairs and expenses to be incurred on the same. He further deposed that he had not consulted with any Architect and volunteered that there was no need. He further deposed that the water logging shown in the photographs exhibited by him pertains to 08.08.2008 and admitted, that on that date, it had rained heavily. He denied the suggestion that there is no requirement of the repairs of his shop.
12. PW2 Sh. Gulshan Kumar deposed that since the inception of tenancy, the respondent has not repaired this shop and the water comes in the shop from the roof, sides of walls and also from the front side of the shop because, the shop is below the road level. During his cross examination, he denied the suggestion that the roof level of all the three shops including the shop of the respondent is the same. He further Petition No. R07/08 Page 6/ 11 deposed that there is leakage from the roof and all the three walls of the petitioner. He further admitted that the cement of the walls and the roof has been destroyed due to leakage and he saw the same. He denied the suggestion that he did not see any damage of the cemented wall and roof of the petitioner. He denied the suggestion that there is no seepage from the roof and walls of the petitioner.
13. PW3 Sh. Manoj Kumar deposed that he is an employee of the petitioner and since he joined the petitioner, till date he has not seen any repairs being conducted by the respondent and water comes in the shop from the roof, side of the walls and also from the front side of the shop as, the shop is below the road level and in rainy season many losses and damages occurred due to this. During his crossexamination, he deposed that he did not have any knowledge whether on requirement the cement was pasted on the roof. He further deposed that he knew whenever there was requirement, the shop was repaired. He denied the suggestion that on 08.08.2008, water in the shop had entered only due to water logging on the road. He further deposed that the water had also entered because, the walls of the shop around the knee height had holes in them. He further deposed that apart from this, the water was also seeping through the roof and the entire roof of the shop drips. He denied the suggestion that there was water seepage or dripping from the roof. He admitted that the roof of the shop in question is not visible as, the same is covered by plywood. He volunteered that the water drips through the plywood. He admitted that since 2008 till date the false ceiling of the Petition No. R07/08 Page 7/ 11 plywood of the shop has not been changed. He further denied the suggestion that the plywood ceiling has not been changed as it has not been damaged due to the water seepage. He admitted that only that stock was damaged which was placed on the lower racks in the shop.
14. PW4 Sh. Rajesh Kumar, Executive (Claims) of Tata AIG General Insurance Company deposed that he had brought the original summoned record and the attested copies of the pages running from 1 to 91 were collectively exhibited as Ex.PW4/A.
15. Now, from this evidence of the petitioner, the case of the petitioner which he is makingout appears to be, that the entire shop requires reconstruction. The shop is three feet below the ground level, therefore, in the season of rains, water from the road enters the shop, walls of the shop are damaged, they have holes in them and the plaster has peeledoff, the roof of the shop is dripping from everywhere and there is seepage therefrom. Now, there are three witnesses of the petitioner apart from the petitioner. PW2 and PW3, however, I find that the most important witness is PW4. PW4 has proved on record the entire record of the insurance claimed by the petitioner due to the damage occurred to his shop on 08.08.2008, when water had entered his shop. Perusal of this record shows that on page 1 there is a note regarding the occurrence of the incident dated 08.08.2008. This is based on the report of the petitioner and the same is as under: th "As reported by insured, on 08 August 2008 in the midnight hrs. a heavy storm with very heavy rain lashed Shahdra, Delhi and its adjoining areas. A large quality of water Petition No. R07/08 Page 8/ 11 reportedly started flowing down the drain pipes from the roof. The gutter, below however could not cope with the heavy gush of water and started overflowing. The overflowed water inundated & flooded the stock of school uniform, their accessories and furniture, fixture and fittings, 2.5 to 3 feet of water got collected and the racks fell down due to which stocks kept on the higher racks also fell on the water and got damaged."
On page 5, the cause of loss is given which is as under: "We examined the cause of loss in detail. On careful study of the rain water drainage system installed at the Insured's premises, it was observed that the rain drain pipes from roof carries water to an under ground header, having various open gutters on the ground floor, for carrying the floor water to the header. The rainwater was found to have back flow through the gutter, due to choking of the header, resulting in damage to stock lying on the floor"
16, Now, if this cause of loss, as stated above, is compared to the cause of loss given by the petitioner as well as PW3, I find that there are material contradictions in the same. As per the statement of claim made by the petitioner to the insurance company, as discussed above, and as stated above; and cause of loss, as assessed by the insurance company, the loss had occurred only due to the reason that on 08.08.2008, there were heavy rains, sewages got chocked and water, thus entered the shop of the petitioner. On the contrary,0 in the present case, the petitioner as well as PW3 state, that the loss was also due to the fact that water had seeped/ dripped from the roof and had also entered from the holes which were in the wall. Interestingly, no mention of such stateof affairs has been made by the petitioner either in his statement of claim or Petition No. R07/08 Page 9/ 11 by Surveyor in the report regarding the cause of loss. Therefore, the only reason for the loss/ damage to the stock of the petitioner appears to be exceptionally heavy rain which had poured in the night of 08.08.2008. Therefore, primarily the damage to the property, as alleged by the petitioner, is not seen. Furthermore, on page 9 of Ex.PW4/A, the condition of the tenanted premises has been detailed as under: "CONSTRUCTION, COMMUNICATION, OCCUPATION The affected premises are constructed on RCC column and beam structure. Walls are made in burnt bricks laid in cement sand mortar and plastered from both sides. The roof is in RCC and use of glass is made in the construction of the building. In short, the Insured premises in one of the modern buildings dotting New Delhi."
17. Now, even in this part of report, it has nowhere been mentioned that any part of the shop is in damaged condition. On the contrary, the report states the shop to be a modern building dotting New Delhi. This evidence, in the form of the report of the Insurance Company and its Surveyor, has been produced by the petitioner and has been prepared by an independent Surveyor at the instance of a claim moved by the petitioner. Therefore, I have no hesitation in holding that this report and contents thereof can certainly be relied upon, especially in order to see the case of the petitioner. However, the report, as discussed above, clearly shows that the building is in good condition and does not need any repairs. Now, once the petitioner has relied upon this report and received insurance claims pursuant thereto and, has produced this report in his own evidence, the petitioner is estopped from challenging the Petition No. R07/08 Page 10/ 11 validity of the same. I accordingly find that there is no damage to the walls or roof of the property which would require any repairs to be conducted, as alleged by the petitioner.
18. As regards the shop of the petitioner being at a level lower than the road, I find, that simply because the level of the shop is below the road level, the petitioner does not get the right to have the level of the roof as well as floor raised unless, the same is prejudicial to the interest of the petitioner in the form of damage to his business activity. As discussed above, the water in the tenanted premises had entered on 08.08.2008, not because of the shop being below the road level but, because of the reason that on that date admittedly, it had rained exceptionally heavy. Therefore, simply because, the respondent had raised the level of her own shop, the petitioner does not get an equitable right to demand the raising of the level of his own shop, unless the same is necessary. The necessity for the same, in my opinion, is not established.
19. In view of my above discussion, I find that the petitioner has failed to prove his case. The petition is accordingly dismissed.
20. File be consigned to record room.
Announced in the open court on this 19 day of May, 2010.
th
(This judgement contains eleven (PARVEEN SINGH)
pages and each page bears ARC(NE)
my signatures) KARKARDOOMA COURTS,
DELHI.
Petition No. R07/08 Page 11/ 11
R07/08
19.05.2010
Present: None.
Vide my separate judgement, the petition of the petitioner stands dismissed.
File be consigned to record room.
(PARVEEN SINGH) ARC (NE) KKD, DELHI.
19.05.2010
Petition No. R07/08 Page 12/ 11