Delhi District Court
Sh. Raj Baboo Nischal vs Sh. Vijay Kumar Chhabra on 18 September, 2018
IN THE COURT OF SH. AJAY NAGAR, COMMERCIAL CIVIL
JUDGE-CUM-ADDITIONAL RENT CONTROLLER (WEST),
TIS HAZARI COURTS, DELHI.
ARC No: 25852/2016
Sh. Raj Baboo Nischal,
S/o Late Sh. Sohan Singh,
R/o 1-A/83, Punjabi Bagh (West),
New Delhi-110026.
.... Petitioner
VERSUS
Sh. Vijay Kumar Chhabra
Shop No. 9, 1-A/83,
West Punjabi Bagh,
New Delhi-110026.
.... Respondent
Date of Filing : 17.05.2013
Date of Judgment : 18.09.2018
JUDGMENT
1. Brief facts of the present case are that on 17.05.2013, the petitioner filed a petition Under Section 14 (1) (a)&(j) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act') praying to this court to pass an order for eviction in favour of the petitioner and against the respondent/Tenant in respect of Shop bearing No. 9, situated at ground floor of the property No. 1-A/83, West Punjabi Bagh, New Delhi-110026, more specifically shown in red colour in the site plan attached (hereinafter referred to as 'tenanted shop') with the petition.
2. It is averred by the petitioner that the respondent was let ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra -2- out @ Rs. 400/- p.m. excluding house tax and all other charges and the respondent is further liable to enhance the rent by 10% after 30 days of service of the summons in the present case.
It is further submitted that respondent/tenant has neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date of legal demand notice dated 12.09.2012.
It is further submitted that respondent/tenant has caused or permitted to be caused substantial damage to the tenanted shop as the respondent has carved out a basement in the tenanted shop after removing the floor and due to which the structural stability of the tenanted shop has also weakened.
It is also submitted that legal demand notice dated 12.09.2012 was issued to the respondent and duly received by the respondent but a false and frivolous reply dated 25.09.2012 was given.
It is further claimed that the petitioner is owner of property bearing no.1-A/83, West Punjabi Bagh, New Delhi-110026 ('hereinafter referred to as 'suit property'). It is clarified that originally the petitioner and his brother namely Sh. Amarjit Nischal were the owners of the suit property having purchased the same in 1975 when they were minors but the said brother expired in February, 1988 unmarried and intestate. Thus, his share devolved upon the petitioner and the parents. The father namely Sh. Sohan Singh also expired in June, 2002. Smt. Sarup Kaur executed a registered Relinquishment Deed dated 28.07.2006 relinquishing her share in the suit property in favour of the petitioner and thus the petitioner became the exclusive ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra -3- owner of the suit property.
It is further submitted that Smt. Sarup Kaur, mother of the petitioner let out the tenanted shop to the respondent and his brother Sh. Satish Kumar vide agreement dated 05.09.1978 but presently it is only the respondent who is in exclusive use and occupation of the tenanted shop and other co-tenant namely Sh. Satish Kumar is not using the tenanted shop.
Lastly, it is prayed that an order for eviction may be passed in favour of the petitioner and against the respondent in respect of tenanted shop.
3. Respondent filed his Written Statement in which he stated that he is the tenant in the tenanted shop and earlier mother of the petitioner Smt. Swaroop Kaur was the landlady and rent till 31.03.2006 was paid by the respondent to Smt. Sarup Kaur. Thereafter, the rent was deposited by the respondent in the court as Smt. Sarup Kaur refused to accept the rent sent by the respondent. It is further claimed that respondent filed petition for deposit of rent for the period 01.02.2010 to 31.12.2010. In the said petition Smt. Sarup Kaur first time intimated that she has executed relinquishment deed on 28.07.2006.
It is further contented that the tenanted shop is even till date in the same condition as it was at the time of taking on rent. However, due to passage of time the construction of the tenanted shop became very old and the road level increased high because of which the level of tenanted shop came down.
It is further contended that respondent sent a legal notice dated 16.02.2013 through speed post to the petitioner ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra -4- requesting him to get the tenanted shop repaired but even after receipt of the notice, the petitioner failed to get the tenanted shop repaired. Consequently, respondent has filed a petition U/S 44 of DRC Act to get the tenanted shop repaired and the present petition is the counter blast to the petition of the respondent moved U/S 44 of DRC Act.
It is further submitted that the rate of rent is Rs.400/- which includes all amenities. Legal notice dated 12.09.2012 was duly replied by the respondent and there is no basement in the tenanted shop. Lastly, it is prayed that this court be pleased to dismiss the petition of the petitioner.
4. Replication also filed by the petitioner reaffirming his stand as taken in the eviction petition and inter-alia submitted that the relinquishment deed was always in the knowledge of the respondent since the day of its execution and the tenanted shop is in good and proper condition and the level of the floor has gone down only due to carving of basement by the respondent.
5. The petitioner examined PW1 to prove his case. The petitioner/ PW-1 tendered his evidence by way of affidavit Ex. PW1/A and he relied upon the documents Ex. PW-1/1 to Ex. PW-1/7. The documents Ex. PW1/3 and Ex.PW1/4 were de- exhibited and marked as Mark-A and Mark-B as the same were photocopies. He also relied upon the photographs Ex.PW1/7 which was however not exhibited in his affidavit. Thereafter, evidence was closed by the petitioner.
ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra -5- On the other hand, respondent examined himself as RW-1. The respondent/RW-1 tendered his evidence by way of affidavit Ex. RW-1/A and relied upon the documents i.e. certified copy of order dated 13.12.2013 Ex. RW1/1 and photocopy of reply dated 25.09.2012 Ex. RW-1/2 (The photocopies are exhibited since the same was also relied upon by the petitioner in his evidence as Mark-A). The said reply is exhibited in affidavit as Ex.RW1/1 due to clerical mistake. The postal receipts exhibited in his affidavit in para 12 as Ex.RW1/2 was de-exhibited as the same was not on record. There was no document which was marked as Mark-H. Thereafter, respondent closed his evidence.
6. Perusal of the record shows that an order U/S 15(1) of DRC Act was passed by my Ld. Predecessor on 15.07.2015 directing the respondent to pay or tender the rent to the petitioner or deposit in the court at the rate of Rs. 400/- p.m. w.e.f. 01.01.2011 till the date of order within one month and also directed him to pay or tender future rent at the same rate by 15 th of each succeeding English Calendar month.
7. I have heard arguments advanced on behalf of Ld. Counsels for the parties and gone through the record carefully.
It is argued by Ld. counsel for the petitioner that the petitioner that respondent was let out at the rate of rent Rs. 400/- p.m. excluding house tax and all other charges and the respondent is also liable to enhance the rent by 10% after 30 days of service. He further argues that the respondent/tenant ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra -6- neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date of notice dated 12.09.2012. He further argues that the legal notice dated 12.09.2012 was issued to the respondent and duly received by the respondent but a false and frivolous reply dated 25.09.2012 was received. He further argues that the petitioner is owner of suit property and originally the petitioner and his brother namely Sh. Amarjit Nischal were the owners of the suit property having purchased the same in 1975 when they were minors and the said brother expired in February, 1988 unmarried and intestate. Thus, his share devolved upon the petitioner and the parents. He further argues that the father namely Sh. Sohan Singh also expired in June, 2002 and Smt. Sarup Kaur executed a registered Relinquishment Deed dated 28.07.2006 relinquishing her share in the suit property in favour of the petitioner and thus, the petitioner had become the exclusive owner of the suit property. Ld. Counsel further argues that Smt. Sarup Kaur, mother of the petitioner let out the tenanted shop to the respondent and his brother Sh. Satish Kumar vide agreement dated 05.09.1978.
He further argues that respondent/tenant has caused or permitted to be caused substantial damage to the tenanted shop and the respondent has carved out a basement in the tenanted shop after removing the floor and due to which the structural stability of the tenanted shop has also become weakened.
On the other hand, Ld. Counsel for respondent submits that respondent is the tenant in the tenanted shop and earlier mother of the petitioner Smt. Swaroop Kaur was the landlady.
ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra -7- He further claims that the rent till 31.03.2006 was paid by the respondent to Smt. Sarup Kaur and thereafter, the rent was deposited by the respondent in court as Smt. Sarup Kaur refused to accept the rent sent by the respondent. It is also claimed that the respondent filed petition for deposit of rent for the period from 01.02.2010 to 31.12.2010. In the said petition Smt. Sarup Kaur first time intimated that she has executed a relinquishment deed on 28.07.2006.
Ld. Counsel for respondent argues that the tenanted shop is even till date in the same condition as it was at the time of taking on rent. However due to passage of time, the construction of the tenanted shop became very old and the road level increased high because of this the level of tenanted shop came down.
Ld. Counsel submits that respondent sent a legal notice dated 16.02.2013 through speed post to the petitioner thereby requesting him to get the tenanted premises repaired but despite receipt of the notice, the petitioner failed to get the tenanted shop repaired.
It is further argued that respondent has filed a petition U/S 44 of DRC Act to get the tenanted shop repaired and the present present petition is the counter blast to the petition of the respondent moved U/S 44 of DRC Act. He submits that the rate of rent is Rs.400/- which includes all amenities and the legal notice dated 12.09.2012 was duly replied by the respondent. He lastly contends that there is no basement in the tenanted shop.
ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra -8-
8. Law on 14(1) (a):-
It is expedient to reproduce the relevant provision of Delhi Rent Control Act so that position may be crystal clear:-
"Section-14. Protection of tenant against eviction- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by court or any controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, make an order for recovery of possession of the premises on one or more of the following grounds only, namely:-
"(a) that the tenant has neither paid nor tendered the whole arrears of the rent legally recoverable from him within two months of the day on which a notice of demand for the arrears of rent has been served of him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882 (4 of 1882)."
As such, the following are the ingredients of section 14(1) proviso (a) :-
(i) There should be a relationship of landlord and tenant between the parties.
(ii) There should be a non-payment or tendering of whole arrears of legally recoverable rent within two months ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra -9- of service of legal notice upon the tenant given by the landlord.
9. I have carefully gone through the pleadings of the parties, evidence led by the petitioner and respondent as well as the case law relied upon by the Ld. counsels. I have also gone through the material on record minutely.
10. Let us discuss the ingredients of Sec. 14(1)(a) D.R.C. Act.
(i). Relationship of Landlord and Tenant:-
11. Perusal of record reveals that petitioner has claimed himself as well as the owner of the tenanted shop. As per the claim of the petitioner, originally the petitioner and his brother were the owners of the tenanted shop having purchased it in 1975 when they were minors. But in the year 1988 said brother expired unmarried and intestate and his share devolved upon the petitioner and the parents. The father of the petitioner namely Sh. Sohan Lal also expired in June, 2002. Thereafter, mother of petitioner Smt. Sarup Kaur executed a registered relinquishment deed dated 28.07.2016 relinquishing her share in the suit property in favour of the petitioner and thus, the petitioner became the exclusive owner of the suit property. It is claimed by the petitioner that his mother Smt. Sarup Kaur let out to the shop to respondent Sh. Vijay Kumar Chhabra and his brother Sh. Satish Kumar vide rent agreement dated 05.09.1978. But presently, co-tenant sh. Satish Kumar is not ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra -10- using the tenanted shop and only respondent is in exclusive use of the tenanted shop.
On the other hand, respondent has admitted himself as tenant in the tenanted shop accepting the mother of petitioner as the landlady of the tenanted shop.
Record also shows that respondent has not specifically disputed the relationship of landlord and tenant between the petitioner and respondent. However, he has claimed that he came to know about the ownership of the petitioner only when petition for deposit of rent for period 01.02.2010 to 31.12.2010 filed by him.
As such, record clearly shows that landlordship of the petitioner is not disputed by the respondent in the present case and it is well settled that admitted facts need not be proved.
12. In case titled as Jiwan Lal Vs. Gurdial Kaur & Ors. 1995 RLR 162 a Bench of Hon'ble High Court of Delhi while dealing with the concept of ownership in a pending eviction petition had noted as follows:
"There is a tendency on the part of tenants to deny ownership in cases. To test the substance of such a plea on the part of the tenants the Courts have insisted that they should state who else is the owner of the premises if not the petitioner. In the present case it is not said as to who else is the owner. Further these cases are not title cases involving disputes of title to the property. Ownership is not to be proved in ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra -11- absolute terms. The respondent does not claim the owner of the premises."
Further, in the case titled as Smt. Shanti Sharma & Ors. Vs Smt Ved Prabha & ors 1987 AIR 2028, the Hon'ble Supreme Court observed :-
"That the meaning of term 'owner' is vis a vis the tenant i.e. the owner should be something more than the tenant."
13. As such, it is well settled that the landlord should be something more than the tenant and he needs not to prove his ownership in absolute term. In view of material on record, I am of the considered view that the petitioner has been able to prove that he is something more than the respondent herein.
As such, ingredient in respect of relationship of landlord and tenant between petitioner and respondent is satisfied.
ii). Service of Legal Demand Notice:-
14. Perusal of Section 14 (1) proviso (a) clearly shows that before initiating the eviction proceeding before the rent controller under D.R.C. Act, the landlord has to serve the notice demanding the payment of arrears of rent. And if the tenant does not pay or tender the rent within two months of service of such notice, the landlord becomes entitled to file eviction proceeding under section 14 (1) (a) of D.R.C Act.
ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra -12- Record shows that the petitioner has claimed to have served legal demand notice dated 12.09.2012 on the respondent and the respondent gave reply to the legal demand notice.
On the other hand, the respondent himself has admitted to have been served with the legal demand notice dated 12.09.2012 and he has also admitted to have given reply thereof.
As such, in view of material on record legal demand notice 12.09.2012 is admitted by the respondent and in view thereof, service of legal demand notice dated 12.09.2012 is proved.
iii). Non payment of legally recoverable rent :-
15. It is well settled that when a landlord/petitioner makes the allegations that rent has not been paid or tendered by the tenant, it is a duty of the tenant/respondent to refute the allegations of such non-payment by leading oral or documentary evidence.
It is also well settled law that when the petitioner files the petition under section 14(1) (a) of D.R.C Act for non-payment of rent, the onus is always upon the respondent /tenant to prove that he had paid the rent and there was no due against him at the time of service of legal demand notice served by the petitioner on the respondent/tenant.
In the present case, the petitioner has served the legal demand notice dated 12.09.2012 on the respondent demanding ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra -13- arrears of rent from 2005 till the date of legal demand notice at market rate of Rs.20,000/- p.m. Furthermore, the petitioner has filed the petition on 17.05.2013. As such, legally recoverable rent is for three years prior to filing of such eviction petition. In view therof, the petitioner may have rent only from 17.05.2010 onwards and not for the period prior thereto.
Now, the court is to determine whether the respondent has paid or tendered the arrears of legally recoverable rent within two months of legal demand notice dated 12.09.2012 or not.
Record itself shows that the respondent has admitted that he did not pay the rent as claimed by the petitioner in legal demand notice within two months. Perusal of legal demand notice shows that petitioner has demanded the rent at the market rate of Rs. 20,000/- p.m. On the other hand, it is also admitted fact that the rent has not been paid or tendered by the respondent within two months from legal demand notice.
16. The claim of the respondent is that rent till 31.03.2006 was paid by the respondent to Smt. Sarup Kaur and thereafter, he deposited rent in court as thereafter, Smt. Sarup Kaur refused to accept the rent sent by him by money order and consequently respondent filed deposit of rent petition for period 01.02.2010 to 31.12.2010.
17. I have carefully gone through the W.S. on record which reflects that the respondent has claimed to have paid rent to Smt. Sarup Kaur only till 31.03.2006 and thereafter claimed ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra -14- have deposited the rent with court for period 01.02.2010 to 31.12.2010 but he has not specifically stated about the payment of rent/deposit of rent in respect of period from 01.04.2006 to 31.01.2010. As such, he has impliedly admitted to have not paid or deposited the rent for the above mentioned period.
Furthermore, the record also shows that the respondent has not claimed that he has paid or deposited the rent within two months from legal demand notice. During the cross- examination RW1/respondent himself has admitted that he received notice dated 12.09.2012 Ex.PW1/2 and reply thereto was also given by him Ex.RW1/2 but he did not give any rent to the petitioner after receipt of legal demand notice.
As such, it is proved on record that no rent was paid or tendered within two months from legal demand notice.
Even it is assumed that the respondent was not supposed to pay the rent at the market rate but it was the duty of respondent to pay or deposit the rent at least at the rate agreed. But he has not paid or deposited the rent at all within two months.
Furthermore, even if it is assumed that respondent was confused about the name of the landlord, he could have deposited the rent with the court but he omitted to do so for the reasons best known to him. As such, he did not deposit the rent within two months even after the receipt of legal demand notice.
18. As such, in view of material on record and discussion as earlier and well settled proposition of law, it is proved on record that no rent was paid or deposited by respondent and ingredient ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra -15- in respect of non-payment of legally recoverable rent is also satisfied.
Section 14(1) (j) of D.R.C. Act:-
19. Section 14(1)(j) is reproduced as under:-
"Section-14. Protection of tenant against eviction- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by court or any controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, make an order for recovery of possession of the premises on one or more of the following grounds only, namely:-
(j) that the tenant has, whether before or after the commencement of this Act, caused or permitted to be caused substantial damage to the premises."
It is well settled that every damage to premises does not entitle the landlord to obtain the eviction order. There should be substantial damage to the premises. There should be material alteration in the premises. The onus to prove that the tenant has caused substantial damage to the property is on the landlord.
20. In the case titled as Shakuntla Devi Vs Avtar Singh 113 ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra -16- (2004) DLT 424 (relied upon by the petitioner), the Hon'ble Delhi High Court observed that:-
"6. Having analysed the reasonings of the courts below, I am of the view that the very fact that the tenant-respondent has punctured the weight-bearingwalls of the premises in question and created additional space for himself by way of parchhati equivalent to the floor area, admits of increase of weight on the load-bearing walls and certainly can be said to have caused substantial damage to the premises in question. The tenant can not damage the walls, erect additional space and yet claim that no substantial damage has been caused to the premises in question. Structural change which brings about additional load on the existing load bearing walls, is substantial damage to the premises in question. It is not necessary that the walls must crumble under additional weight to bring the mischief of the tenant under Section 14(1)(j) of the Act. Suffice to say in the facts and circumstances of the present case where the tenant has punctured holes into the walls created additional space by erecting a parchhati equivalent to the floor area of the room in question and is using the same for either storage of goods and/or residence purposes, would come within the mischief of Section 14(1)(j) of the Act. The tenant is not permitted to make any changes/alterations so ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra -17- as to increase load on the walls which are otherwise designed to hold the structure as was let out to the tenant".
In the case titled as Suraj Parkash Sawhney Vs Bhagat Ram passed in S.A.O.No.328-D of 1964 (relied upon by the petitioner), the Hon'ble Punjab High Court observed that:-
"Sub-Section (10)has been introduced as a corollary to clause (j) of the proviso to sub- section(1), and it is provided that in cases where the tenant caused a substantial damage to the demised premises the Controller may direct the tenant to carry out repairs to the damage caused to his (the Controller's) satisfaction or to pay such amount by way of compensation as the Controller may direct. The sub-section has been enacted to grant relief to the tenant causing substantial damage to the demised premises in case he is prepared to undo the damage caused by him. Sub-section (10), however, does not make it imperative for the Controller to give a choice to the tenant either to repair the damage or to pay the compensation. It would in my view, depend upon the circumstances of each case for the Controller to decide as to whether he should make an order calling upon the tenant to repair the damages or to pay an amount by way of compensation and to mould his directions accordingly. The Controller is vested with a discretion in the matter which must be exercised judicially looking to the facts of each case, and it is for the Controller to decide as to ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra -18- what type of order contemplated by sub-section (10) should be made by him. In a case like the present if the order were not for the construction of the intervening wall but only for payment of a paltry compensation of Rs.200/- which would, according to Mr. Hardy, be the cost of constructing the wall, there would always be a danger of the entire building falls down because of the demolition of the wall which was supporting roof.
The payment of compensation in a case like the present wall hardly be the proper relief and as such the Additional Controller and Tribunal were in my opinion fully justified in direct the tenant construct the intervening wall in case he wanted to avoid his eviction in Appeal No.328-D of 1964 is consequently dismissed."
21. In the case titled as Suraj Parkash Chopra Raj kumar vs Baij Nath Dhawan and Anr. 2003 III AD Delhi 705, 103 (2003) DLT 645, (relied upon by the petitioner) the Hon'be High Court of Delhi observed as under :-
"(i) the onus of proving that the tenant has caused substantial damage to the demised premises is upon the landlord;
(ii) landlord must prove that addition and alteration in the tenancy premises is carried out by the tenant;
(iii) tenant has made his construction without the consent of landlord;
(iv) the said construction has materially affected the tenancy premises and further that ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra -19- the construction which had been carried out by the tenant had materially altered the premises;
(v) Court must determine the nature, character of the construction and the extent to which they make changes in the structure of the premises having regard to the purpose for which the premises have been let out;
(vi) landlord has to prove it by cogent evidence and wherever necessary expert witness should be examined;
(vii) 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;
(viii) every construction or alteration does not impair the value and utility of the 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 utilisation aspect of the building;
(ix) a temporary alteration or addition which can be easily repaired without causing damage to the structure is not substantial damage to the tenancy premises;
(x) 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; and
(xi) 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."-20-
ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra
22. I have carefully gone through the pleadings of the parties keeping in view the guidelines and observations made by the Hon'ble Supreme Court and Hon'ble High Court.
23. The petitioner has claimed that the respondent has carved out a basement in the tenanted shop after removing the floor and has weakened the structural stability of the tenanted shop.
On the other hand, the respondent has contended that the tenanted shop is same as it was at the time of inception of tenancy. However, construction of the tenanted shop became old and due to passage of time, the road level increased height because of which level of tenanted shop came down. As such, it is denied by the respondent that there is basement in the tenanted shop dug up by the respondent as alleged by the petitioner.
24. I have carefully and minutely gone through the testimonies of all the witnesses on record. During the cross- examination, it is admitted by the PW1/petitioner that there is no change in the height of the tenanted shop and he further deposed that he is not able to tell how deep is the basement as made by the respondent because he was not allowed by the respondent to go into the tenanted shop. He further deposed that he can not tell whether the road adjacent to which shop was repaired many a times since inception of tenancy. He also claims that he has not seen any repair work for the last 12-15 years but he has admitted that he does not remember any repair work prior thereto.
-21-ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra PW1 also admitted that suit property is consisting on the same pillars and walls but claim that a basement was dug up by the respondent. PW-1 also admitted that he has not mentioned about any damage occurred to his residence or to any other adjacent shop to the tenanted shop. He also admitted to have not filed any structural stability certificate regarding suit property.
PW1 himself has deposed that he is deposing about the structural stability of the tenanted shop on the basis of statement of neighbours and also admitted that he saw the shop from distance and also admitted that he did not make any complaint regarding basement.
It is a matter of common knowledge that whenever a road is constructed, there is very likelihood of increase of height of road and roads are constructed generally after a gap of a few years. It is on record that respondent was let out in the year 1978. As such, 40 years have already elapsed since the beginning of tenancy which is a very long period.
As such, there is very likelihood of construction of road a number of times. Moreover, PW1/petitioner himself has admitted that he is not aware of the fact that whether the road was construction prior to 15-17 years or not. As such, in view of evidence of PW1 and material on record, there is very likelihood of lowering of the floor of the tenanted shop due to construction of road. Moreover, the PW1 has also admitted that he himself has not entered the tenanted shop and he has deposed only on the basis of statement of neighbours. It is on record that no neighbour has been examined by the petitioner on this point. As such, his evidence on this point only a hearsay evidence which -22- ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra can not be relied upon by this court.
Moreover, every damage is not substantial damage. No expert witness was examined by the petitioner. Furthermore, the PW1 has himself admitted that suit premises is standing on the same pillars and walls. As such, testimony of PW1 clearly states that there is no digging of basement by the respondent and there is no weakening of structural stability of tenanted shop and suit property.
As such, in view of well settled proposition of law and discussion earlier and material on record, I am of the considered view that no substantial damage has been caused by the respondent to the tenanted shop U/Sec. 14(1)(j) of DRC Act.
CONCLUSION:-
25. In view of the aforesaid discussion, this court has come to the conclusion that the petitioner has satisfied all the ingredients of Section 14(1)(a) of D.R.C. Act in respect of the tenanted shop i.e. Shop bearing No. 9, situated at ground floor of the property No. 1-A/83, West Punjabi Bagh, New Delhi-110026, more specifically shown in red colour in the site plan Ex. PW-1/1 attached with the petition.
26. It is on record that an order U/S 15(1) of DRC Act was passed by my Ld. Predecessor on 15.07.2015 directing the respondent to pay or tender the rent to the petitioner or deposit in the court at the rate of Rs. 400/- p.m. w.e.f. 01.01.2011 till the date of order within one month and also directed him to pay or tender future rent at the same rate by 15th of each succeeding -23- ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra English Calendar month.
27. As such, in view of earlier discussions, a modified order is passed U/Sec. 15(1) of DRC Act directing the respondent to pay or tender the rent @ Rs. 400/- p.m. w.e.f. 17.05.2010 to 30.06.2013 and w.e.f. 01.07.2013 @ Rs.440/- p.m. till date within one month from today along with 15% simple interest and he is further directed to continue to pay or tender the future rent at the same rate on or before 15th of each succeeding English calendar month.
28. As such, Nazir is directed to report on 30.01.2019 for compliance of previous order dated 15.07.2015 passed by Ld. Predecessor as well as the order passed today for the purpose of consideration of benefit U/S 14(2) of DRC Act.
29. A miscellaneous file be prepared for consideration on the aspect U/Sec. 14(2) of DRC Act.
30. As discussed earlier, ingredients of Sec. 14(1)(j) D.R.C. Act could not be proved by the petitioner.
31. File be consigned to Record Room after due compliance.
Announced in the open court AJAY Digitally signed by AJAY NAGAR on 18th September, 2018. NAGAR Date: 2018.09.18 18:24:24 +0530 (This judgment contains 23 pages) (AJAY NAGAR) Commercial Civil Judge-cum-
Additional Rent Controller, West District, THC, Delhi.
ARC No. 25852/2016 Raj Baboo Nishchal vs. Vijay Kr. Chhabra