Delhi District Court
Smt. Balbir Kaur vs Sh. Vijay Kumar on 7 April, 2014
IN THE COURT OF SHRI VINOD GOEL, DISTRICT & SESSIONS
JUDGECUMADDITIONAL RENT CONTROL TRIBUNAL:
SHAHDARA: KARKARDOOMA COURTS: DELHI
RCA No. 51/13
Unique Identification No.02402C0291772013
Smt. Balbir Kaur
W/o Sh. Gurdev Singh,
R/o D100, Gali No.1,
New Govind Pura,
Parwana Road, Delhi110051. .... Appellant
Versus
Sh. Vijay Kumar
S/o late Sh. Ramji Lal,
Proprietor M/s. Prince Tailor,
At D100, Shop at ground floor,
Gali No.1, New Govind Pura,
Parwana Road, Delhi110051. ... Respondent
Date of Institution : 10.09.2013
Arguments heard on : 19.03.2014
Date of Judgment : 07.04.2014
Appeal under Section 38 of the Delhi Rent Control Act, 1958 against
the impugned judgment dated 01.08.2013 passed by Ld. Rent
Controller, Shahdara, Delhi in petition no. M(44)38/11.
RCA No. 51/13
Smt. Balbir Kaur Vs. Sh. Vijay Kumar
Decided on 07.04.2014 Page 1 of 11
JUDGEMENT :
1. The appellate jurisdiction of this court has been invoked by the appellant/landlady under Section 38 of the Delhi Rent Control Act, 1958 (hereinafter referred to as the "DRC Act") feeling aggrieved by the impugned order dated 01.08.2013 passed by Ld. Rent Controller, Shahdara, KKD Courts, Delhi, by which the appellant/landlady was directed to get repaired the floor as per by laws of MCD and to make the shop in habitable condition as well as necessary repairs to the shutter.
2. Shorn of unnecessary details, the relevant facts for disposal of this appeal are that the respondent/tenant preferred a petition under Section 44 of the "DRC Act" before the Ld. Rent Controller on the premises that he has been a tenant in respect of a shop on the ground floor consisting of property bearing no. D100, Gali No.1, New Govind Pura, Parwana Road, Delhi110051 on a monthly rent of Rs.235/ and the said property has been more specifically shown with red colour in the site plan attached with the petition. The floor and wall of the said shop are in very poor condition as the level of the floor has gone down by 1½ ft. below the road level and due to this reason, the water get enters into the shop particularly in rainy season and cause damages to the cloths and raw material in the shop. The water also comes from the front side wall of RCA No. 51/13 Smt. Balbir Kaur Vs. Sh. Vijay Kumar Decided on 07.04.2014 Page 2 of 11 the shop in rainy season and the shutter of the shop also require repairs. The respondent/tenant got issued a legal notice dated 08.11.2011 to the appellant/landlady for repairing of the said shop by speed post and courier but of no avail.
3. In her reply, the appellant/landlady did not dispute the relationship of landlord and tenant between the parties or rate of rent of the shop in question. However, it is pleaded that the respondent/tenant has been using the said shop as a godown and he has been running a tailor shop in property bearing no. D72, Gali No.2, New Govind Pura, Delhi110051. The shop in question cannot be repaired as same is in very dilapidated condition and needs to be reconstructed after getting the same vacated from the respondent/tenant.
4. The respondent/tenant filed replication to the written statement of appellant/landlady and denied the allegations of the appellant/landlady and reaffirmed the averments made in his petition.
5. In support of his case, the respondent/tenant examined himself as PW1. He has also examined his brother Sh. Prem Kumar as PW2 and his employee Sh. Arjun Kumar as PW3. On the other hand, the appellant/landlady examined herself as RW1.
6. I have heard ld. counsel for both the parties and very carefully RCA No. 51/13 Smt. Balbir Kaur Vs. Sh. Vijay Kumar Decided on 07.04.2014 Page 3 of 11 perused the material available on record.
7. Ld. counsel for the appellant/landlady argued that the shop in question is in very dilapidated condition and needs to be reconstructed instead of getting it repaired. He also argued that repair is not possible without changing the roof as first floor is already there over and above the shop in question and the level of the shop in question is already 1½ ft. below than the road level and if the floor level of the shop is raised, it will deface and diminish the value of the shop in question. Per contra, it is argued by ld. counsel for the respondent/tenant that under Section 44 of the "DRC Act", it is the duty of the landlord to keep the premises in good and tenantable repairs. He also argued that the shop in question is repairable and he is ready to get the said shop repaired at his own expenses and will not claim even deduction of repair expenses from the rent and he has already so mentioned in the relief para of his petition under Section 44 of the "DRC Act" to carry out the repairs at his own cost.
8. Before appreciating the rival contentions of the parties, it is necessary to refer the relevant provisions of law i.e. Section 44 of "DRC Act" which read as under: "44. Landlord's duty to keep the premises in RCA No. 51/13 Smt. Balbir Kaur Vs. Sh. Vijay Kumar Decided on 07.04.2014 Page 4 of 11 good repair.-(1) Every landlord shall be bound to keep the premises in good and tenantable repairs.
(2) If the landlord neglects or fails to make, within a reasonable time after notice in writing, any repairs which he is bound to make under subsection (1), the tenant may make the same himself and deduct the expenses of such repairs from the rent or otherwise recover them from the landlord:
Provided that the amount so deducted or recoverable in any year shall not exceed one twelfth of the rent payable by the tenant for that year.
(3) Where any repairs without which the premises are not habitable or usable except with undue inconvenience are to be made and the landlord neglects or fails to make them after notice in writing, the tenant may apply to the Controller for permission to make such repairs himself and may submit to the Controller an estimate of the cost of such repairs, and, thereupon, the Controller may, after giving the landlord an opportunity of being heard and after considering such estimate of the cost and making such inquiries as he may consider necessary, by an order in writing, permit the tenant to make such repairs at such cost as may be specified in the order and it shall thereafter be lawful for the tenant to make such repairs RCA No. 51/13 Smt. Balbir Kaur Vs. Sh. Vijay Kumar Decided on 07.04.2014 Page 5 of 11 himself and to deduct the cost thereof, which shall in no case exceed the amount so specified, from the rent or otherwise recover it from the landlord.
Provided that the amount so deducted or recoverable in any year shall not exceed one half of the rent payable by the tenant for that year:
Provided further that if any repairs not covered by the said amount are necessary in the opinion of the Controller, and the tenant agrees to bear the excess cost himself, the Controller may permit the tenant to make such repairs."
9. A bare reading of the provision shows that if the landlord neglects or fails to make out any repairs in the demised property under Sub Section (1) of 44 of "DRC Act", the tenant may carry out such repairs himself and deduct the expenses of such repairs from the rent to the extent of 1/12th of the rent for that year and under Sub Section (3) where any repairs without which the premises are not habitable or usable, the tenant may apply to the Rent Controller for permission to make such repair himself and after making such inquiries, the Rent Controller if consider it necessary by an order in writing permit the tenant to make such repairs himself and deduct the cost thereof, which shall in no case exceed the amount so specified, from the rent or otherwise recover it RCA No. 51/13 Smt. Balbir Kaur Vs. Sh. Vijay Kumar Decided on 07.04.2014 Page 6 of 11 from the landlord to the extent of one half of the rent payable by the tenant for that year.
10. The tenant /respondent has specifically pleaded in para no.6 of his petition under Section 44 of the "DRC Act" that the floor and wall of the shop in question are in very poor condition and the level of the floor of the said shop is approximately 1½ ft. below the road level due to which the water get enters into the shop and during rainy season also water get enters the shop and damages cloths and raw material and shutter of the shop is also to be repaired. These facts have not been specifically denied by the appellant/landlady in corresponding para of her written statement and she has only pleaded that the tenanted shop cannot be repaired as it needs to be reconstructed after getting the same vacated from the respondent/tenant. Therefore, under Order VIII Rule 5 of Code of Civil Procedure, contents of para no.6 of the petition are deemed to have been admitted by the appellant/landlady. Order VIII Rule 5 of Code of Civil Procedure, 1908 reads as under:
"Specific denial.(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:RCA No. 51/13
Smt. Balbir Kaur Vs. Sh. Vijay Kumar Decided on 07.04.2014 Page 7 of 11 Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission."
This rule is known as doctrine of Non Traverse embodied in order VIII Rule 5 of Code of Civil Procedure, 1908 and is applicable where material averments made in the plaint is not specifically denied by the defendant in the written statement and as such all averments is taken to be admitted. It has been held by our own Hon'ble High Court in Anant Constructions (P) Ltd. vs. Ram Niwas (1994) 4 AD Delhi 185 that Rule 5 of Order VIII enjoins the defendant to deny specifically such of the averments of the plaint which he does not admit. An averment made in the plaint if not specifically denied or only evasively denied in the written statement would be deemed to have been admitted. Similarly Hon'ble Supreme Court in Seth Ramdayal Jat vs. Laxmi Prasad (2009) 11 SCC 545 para 24 held that if averments contained in a paragraph of the plaint are not traversed in the written statement, the same would be deemed to have been admitted in terms of order VIII Rule 5 of Code of Civil Procedure. Recently our own Hon'ble High Court in Minda HUF Limited vs. Union Bank of India 2011 (185) DLT 33 (DB) has held that allegation in pleadings must be specifically denied. Absence RCA No. 51/13 Smt. Balbir Kaur Vs. Sh. Vijay Kumar Decided on 07.04.2014 Page 8 of 11 of specific denial can be construed as acceptance of fact stated. Similarly the Hon'ble High Court in Ghanshyam Das Soni vs. Sundri Apparels (India) Ltd. 2013 (196) DLT 196 has held that it is a settled legal position that where denial is not specific or evasive, then allegations made in the plaint shall be deemed to have been admitted.
11. The respondent/tenant has examined himself as PW1 and tendered his affidavit in evidence deposing all the facts pleaded by him in his petition and in his cross examination, the appellant/landlady has given the suggestion that main shutter is required to be replaced because of the gap between the floor and the shutter. The appellant/landlady has neither pleaded in her written statement nor deposed in her affidavit tendered in evidence that the repair of the shop in question is not possible without changing or repairing the roof or that if the level of the shop is lifted above the road level, it will deface the shop or that it will decrease the value of the suit property. In her cross examination, she stated that she cannot say whether the level of the shop is below the road level as she has not visited the shop. She stated that the road in front of the shop has been raised from its original level from time to time and cannot say if the level of the shop is below from the road level. She has also admitted having received a notice from the respondent/tenant prior to filing the RCA No. 51/13 Smt. Balbir Kaur Vs. Sh. Vijay Kumar Decided on 07.04.2014 Page 9 of 11 petition. During the course of arguments in the appeal, it is not disputed by the ld. counsel for the appellant/landlady that the level of the floor of the shop has gone down because of raising of the level of the road, and front wall of the said shop and the shutter require repairs.
12. The landlady/appellant could not shake the testimony of respondent/tenant in the cross examination that the floor level of the shop is 1 ½ ft. below the road level and water enters the shop particularly during rainy season and water also enters the shop from front side wall and shutter also requires repair. The appellant/landlady admitted that road level infront of the shop has been raised from time to time but did not answer the question that floor level of the shop is lower than road level by taking excuse that she did not visit the shop. If it is so, how she is aware of raising of road level from time to time. If she has not visited the shop, how she pleaded in ground of appeal that shop is not habitable and requires reconstruction and value of shop would be diminished by raising the floor level. It appears that the defence put forward by the appellant/landlady is just vexatious to defeat the petition. The Ld. Rent Controller has ignored the mandate of Section 44 of "DRC Act" and instead of giving permission to the tenant/respondent herein, the learned Rent Controller has directed the landlord/appellant to carry out the RCA No. 51/13 Smt. Balbir Kaur Vs. Sh. Vijay Kumar Decided on 07.04.2014 Page 10 of 11 repairs in the shop in question which is against the spirit of the provision. Therefore, the impugned order of Ld. Rent Controller dated 01.08.2013 directing the appellant/landlady to get repaired the shop is set aside and the respondent/tenant is permitted to get the said shop repaired at his own cost by raising the level of the shop by 1½ ft., repair the shutter and front wall by getting it plastered and the respondent/tenant shall not have any right to claim deduction from the rent on account of the cost of repair as envisaged by Section 44 of the "DRC Act" as prayed and argued by ld. counsel for the respondent/tenant.
13. With these modifications in the impugned order dated 01.08.2013 of Ld. Rent Controller, this appeal is disposed of accordingly. Trial Court record be sent back with an instant copy of this judgment. Appeal file be consigned to record room.
Announced in open Court
on 07th April, 2014 (Vinod Goel)
District & Sessions Judgecum
Additional Rent Control Tribunal,
Shahdara, KKD Courts, Delhi.
RCA No. 51/13
Smt. Balbir Kaur Vs. Sh. Vijay Kumar
Decided on 07.04.2014 Page 11 of 11