Delhi District Court
Sh. Prakash Kambli vs Smt. Satnam Kaur on 9 August, 2010
IN THE COURT OF SH. PARVEEN SINGH, ARC (NE),
COURT ROOM NO. 53, KARKARDOOMA COURTS, DELHI.
R04/09
UNIQUE CASE ID NO. 02402C0584622005
IN THE MATTER OF:
SH. PRAKASH KAMBLI
S/O SH. BAL KISHAN KAMBLI
PROP. OF M/s. PRAKASH AUTO MOBILE,
136137, LINK ROAD, SHIV PURI,
DELHI110051. .... PETITIONER
VERSUS
SMT. SATNAM KAUR
W/O LATE SHRI BHAGAT SINGH
R/O 136137, LINK ROAD,
SHIV PURI, DELHI110051. .... RESPONDENT
DATE OF INSTITUTION : 10.11.2005
DATE OF RESERVING JUDGEMENT : 31.07.2010
DATE OF JUDGEMENT : 09.08.2010
JUDGEMENT
1. Vide this judgement, I shall dispose off this petition u/S. 44 of the DRC Act filed by the petitioner.
Petition No. R04/09 Page 1/12
2. The case of the petitioner is that he is a tenant under the landlordship of the respondent in respect of one shop situated at the ground floor of property bearing no. 136137, Link Road, Shiv Puri, Delhi110051. Till September 2005, the petitioner paid rent @ Rs.200/ p.m. and thereafter, since October 2005, the petitioner has been paying rent @ Rs.220/ p.m. It is further submitted that the petitioner is running a scooter repair shop under the name and style of `M/s. Prakash Automobiles' since 1981. It is further submitted that the roof of the tenanted premises has been in damaged condition and, the petitioner requested the respondent several times to get the shop repaired but, in order to harass and torture the petitioner, the respondent did not repair the roof. The shop is in a damaged condition and may falldown at any time and the petitioner may suffer monitory and physical loss due to the same. It is further submitted that the petitioner got served a legal notice to the respondent on 23.09.2005, through regd. AD and UPC, which was duly served upon the respondent. Instead of giving permission to repair the roof, the respondent sent a false and vague reply. The roof of the shop is constructed with stones and mud and, the rain water has started Petition No. R04/09 Page 2/12 leaking from the roof and small pieces of stones also are, usually falling from the roof. The estimated cost of repairs has been submitted as AnnexureA. Hence, the present petition.
3. The respondent on being served with the notice of the petition, filed her Written Statement. In the Written Statement, the respondent has taken a preliminary objection that the petitioner has not submitted any authentic estimate of the cost of the alleged repairs proposed to be carriedout and as such, the petition is not maintainable. A further preliminary objection is taken that the premises is in a good and habitable condition and, does not require any repairs. A further preliminary objection is taken that no valid notice, as per provisions of Section 44 DRC Act, has been served by the petitioner upon the respondent. A further preliminary objection is taken that even if, for the sake of arguments, it is considered that there is any damage caused to the tenanted premises, the same is wholly and totally attributable to the act and conduct of the petitioner as, the petitioner is running hazardous activities causing great pollution in the tenanted premises. On a number of occasions, he has been called upon to stop such activities but, he continued to carryout the same which might Petition No. R04/09 Page 3/12 have damaged the suit premises. It is further submitted that without prejudice to the contentions, as raised earlier, after receiving the notice of the present petition, from the court, the respondent vide her letter dated 21.12.2005, had called upon the petitioner, to allow the inspection of the tenanted premises on 28.12.2005 at 12.30 P.M. However, when the respondent reached the tenanted premises at 12.30 P.M. on 28.12.2005, the petitioner did not permit the respondent to inspect the tenanted premises. Thereafter the respondent lodged a complaint with police station Preet Vihar, Delhi. Immediately thereafter, the respondent issued a legal notice dated 28.12.2005, wherein the entire incident, as occurred on 28.12.2005, was narrated and the petitioner was again called upon by the respondent to permit the inspection of the tenanted premises under his occupation by notifying to the respondent, the date and time, when he would allow such inspection. The petitioner had duly received the notice on 30.12.2005 but, till date he has not allowed the respondent to inspect the tenanted premises wherefrom, it can be presumed, that neither the tenanted premises are damaged nor, the same require any repairs.
Petition No. R04/09 Page 4/12
4. On merits, the relationship of landlord and tenant stands admitted. It is denied that the petitioner was regularly paying rent @ Rs.200/ p.m. till September 2005 or thereafter @ Rs.220/ p.m. It is submitted that the respondent is habitual defaulter in payment of rent and has not paid the enhanced rent, as per law. It is denied that the petitioner is running a shop for repairing scooters, etc. and again submitted, that the petitioner is running hazardous activities causing pollution in the tenanted premises. It is denied that the roof of the tenanted premises is in a damaged condition and petitioner requested the respondent to get the same repaired. It is denied that the roof may fall at any time and, the petitioner can suffer monetary and physical loss. It is further submitted that as the petitioner himself is liable for the damages, he is, therefore, responsible to restore it back to the same condition which it had at the time of lettingout.
5. Thereafter, the parties led their respective evidence. The petitioner examined himself PW1. On the the other hand, the respondent examined herself as RW1.
6. In the present case, the relationship of landlord and tenant Petition No. R04/09 Page 5/12 stands admitted. Therefore, the question which needs to be decided first is whether the premises is in a damaged condition, as alleged, and requires any repairs?
7. The petitioner appearing as PW1, deposed that there is a leakage from the roof of the shop and, the said roof is in a totally damaged condition. He further deposed that there is a danger of the roof fallingdown, which may be hazardous to the life of the petitioner as well as his customers. He further deposed that the roof of the tenanted shop is constructed of stones and mud and now, the ceiling has started leaking during the rains. Not only that, small pieces of stones eusually falldown from the roof. The photographs of the roof are Exs.PW1/2 to PW1/9. During his crossexamination, he admitted that since the inception of tenancy, he is running an auto repair work shop in the tenanted shop. He further deposed that he only carriesout scooter repairs and maintenance in the said shop. He denied the suggestion that he had damaged the tenanted shop by carrying on the work of scooter repairing. He denied the suggestion that a damage caused to the shop is due to his negligence and the nature of business he is carrying on in this shop. He denied the Petition No. R04/09 Page 6/12 suggestion that the tenanted shop does not require any immediate repairs.
8. On the other hand, the respondent appearing as RW1, deposed, that the suit premises are in good and habitable condition and do not require any repair. She further deposed that even if, it is admitted for the sake of arguments, that the shop in question has been damaged, the same is due to the petitioner's running hazardous activities and causing pollution in the tenanted premises. Thus, if any damage had been caused, the same is entirely due to the acts and conduct of the petitioner. During her crossexamination, she admitted that the roof of the tenanted premises is of asbestos sheets. She further deposed that she was not allowed to inspect the shop and therefore, cannot admit or deny, if, the roof of the shop in question has been damaged and there are leakages in the same.
9. Now, from the above evidence, it is very much clear that the respondent has not posed any serious challenge to the testimony of the petitioner that the tenanted premises is in damaged condition. On the contrary, during the crossexamination of the petitioner, it was Petition No. R04/09 Page 7/12 suggested to him that he has damaged the shop by carryingout the work of scooter repairs and, the respondent herself says, that she has no knowledge whether, the shop is in damaged condition or not because, she was not allowed to inspect the tenanted premises. Furthermore, there is no challenge, that the photographs Exs.PW1/2 to PW1/9, are not of the shop in question. In fact, these photographs have not been challenged any point at all. These photographs also clearly show that the condition of the shop's roof is far from being good. I accordingly find, that the petitioner has succeeded in proving that the roof of the shop in question is in damaged condition and requires to be repaired. Now, a defence has been taken by the respondent, that the shop in question has been damaged by the hazardous activities being carriedout by the petitioner, which resulted in polluting the environment and thus, damaging the roof of the shop. However, in the crossexamination of the petitioner itself, it was suggested and the petitioner admitted, that since the inception of tenancy, he has been carryingout a scooter repair and maintenance business and, he denied the suggestion, that he has damaged the tenanted shop due to carrying on the work of scooter repairs. It has not been shown to the court and, I fail to understand, how the work of Petition No. R04/09 Page 8/12 scooter repairing can be hazardous and, can result in pollution to the extent, that it would damage the roof of the tenanted premises to the extent that it would require major repairs. Therefore, I find that the respondent has failed to show/ prove that the damage of the tenanted premises is because of the conduct of the petitioner.
10. The next question which needs to be decided is whether the petitioner is entitled to the repairs of the tenanted premises and/ or the respondent is liable to carryout the same?
11. It is admitted that the Notice u/S. 44 of the DRC Act was served by the petitioner upon the respondent. The said notice has been exhibited as PW1/10 and, the respondent during her cross examination, admitted that she had received the legal notice Ex.PW1/10 and that, she had sent a reply to the said notice which is Ex.RW1/P2. I have gone through the legal notice Ex.PW1/10 and the reply Ex.RW1/P2. In the notice Ex.PW1/10, the petitioner had clearly stated that the roof of the tenanted premises is in a damaged condition and, demanded that the respondent repaired the same. The respondent in her reply Ex.RW1/P2, had outrightly denied that the Petition No. R04/09 Page 9/12 tenanted premises was in a damaged condition. On the other hand, it was claimed that it was due to the activities of the petitioner. The claim that the damage to the tenanted premises is due to the activities of the petitioner has been found to be incorrect. As it has been found that the roof of the tenanted premises is in damaged condition and requires repairs and that the legal notice u/S. 44 of the DRC Act was duly served upon the respondent, I find that the petitioner is entitled for the repair of the roof of the tenanted premises.
12. However, it has also to be decided whether, the respondent is liable to carryout these repairs? It is a very well settled principle of law that the landlord is required to keep the tenanted premises in good condition and, is duty bound to carryout all the necessary repairs. However, in the present case, interestingly, the respondent after filing of the present petition sought the inspection of the tenanted premises vide letter Ex.RW1/1. She deposed that she was not allowed to inspect the premises and thus, she sent a notice Ex.RW1/4, to the petitioner calling upon him to notify her, the date and time on which she would be allowed to inspect the tenanted premises alongwith a Civil Engineer so that, the extent of damage and the repairs required Petition No. R04/09 Page 10/12 to be conducted could be assessed. The petitioner during his cross examination admitted that after receiving the notice from the respondent/ landlady, he did not permit her to inspect the tenanted shop for assessing the nature and extent of the damage. On the other hand, it was suggested to the respondent during her crossexamination that she had issued the legal notices Exs.RW1/1 and RW1/4 in order to create false defence. She also admitted that she had not issued any notice prior to filing of the present petition whereby, she had asked the petitioner to allow her to inspect the tenanted premises. It is, therefore, very much clear that after filing of the petition, the respondent may have realized the need to repair the tenanted premises but, she was stopped by the petitioner from inspecting the tenanted premises. The respondent being a landlady had every right to inspect the tenanted premises. Furthermore, she was required to inspect the tenanted premises to have the extent of damage assessed, so that, she could have carriedout the necessary repairs. The arguments of the Ld. counsel for the petitioner is that it is merely a ploy to create a defence. He may be right but, by not allowing the respondent to inspect the tenanted premises, the petitioner allowed the respondent to raise a defence. Thus, when the petitioner himself did not afford the Petition No. R04/09 Page 11/12 respondent an opportunity to examine the extent of damages and thus, take remedial actions, the liability of carryingout the repairs cannot be fastened upon the respondent. However, as it has been found that the premises are in damaged condition and that the petitioner is entitled to carryout the repairs, I hereby allow the petitioner to carry out the necessary repairs of the roof and roof alone at his own expenses without any rights of adjusting the same towards rent. The petition stands disposed off.
13. File be consigned to record room.
Announced in the open court on this 9th day of August, 2010.
(This judgement contains twelve (PARVEEN SINGH)
pages and each page bears ARC(NE)
my signatures) KARKARDOOMA COURTS,
DELHI.
Petition No. R04/09 Page 12/12