Delhi District Court
Tis Hazari Courts vs Ram Kishan (Since Deceased Through Lrs) ... on 17 December, 2013
//1//
IN THE COURT OF SATISH KUMAR ARORA, ARC-1 (CENTRAL)
TIS HAZARI COURTS, DELHI.
E-251/09/99
Sh. Ganga Prashad Sharma
S/o Sh. Nathu Ram Sharma
(since deceased)
Represented through LRs :-
(i) Krishna Kumari Sharma
Wd/o Late Sh. Ganga Prashad Sharma
(expired on 13.03.2013)
(ii) Anil Kr. Sharma
S/o Late Sh. Ganga Prashad Sharma
R/o 3258, Lal Darwaza, Bazar Sita Ram,
Delhi-06.
(iii) Lalit Kr. Sharma
S/o Late Sh. Ganga Prashad Sharma
R/o 214-B, First Floor, Prakash Mohalla,
East of Kailash, New Delhi-65.
(iv) Rekha Sharma
W/o Sh. Mohinder Sharma
D/o Late Sh. Ganga Prashad Sharma
R/o 116-Block 'A', 2nd Channel,
3rd Floor, Jwala Heri Market,
Near Dussehra Park, Paschim Vihar, New Delhi.
(v) Rachna Mishra,
W/o Sh. Yogendra Mishra,
D/o Late Sh. Ganga Prashad Sharma
R/o A-4, Arya Nagar Group Housing Society,
Plot No. 91, Patparganj, Delhi.
(vi) Deepali Sharma
W/o Sh. Somesh Sharma,
D/o Late Sh. Ganga Prashad Sharma
R/o WE-75, Mohan Garden,
Uttam Nagar, Delhi-59. ...Petitioners
E-251/09/99 Ganga Prashad (since deceased through LRs) Vs.
Ram Kishan (since deceased through LRs) & Anr. Page 1 of 25
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VERSUS
1. Sh. Ram Kishan Dass s/o Sh. Roshan Lal
(since deceased)
Represented through LRs :-
(i) Sh. Prem Chand
S/o Late Sh. Ram Kishan Dass
At : M/s Anupam Traders, 3103,
Gali Taksaliyan, Bazar Sita Ram, Delhi-06.
(ii) Smt. Veena Gupta
Wd/o Late Sh. Sushil (pre deceased son)
R/o 3265, Lal Darwaza, Bazar Sita Ram,
Delhi-06.
(iii) Leeza
(iv) Kumari Pryagi
(v) Kumari Charu
(vi) Master Ayush
All r/o 3265, Lal Darwaza, Bazar Sita Ram,
Delhi-06.
(Respondent no. iii to vi as above are minors
and represented through their mother and
natural guardian, respondent no. ii Smt. Veena Gupta)
(vii) Sh. Sanjeev
S/o Late Sh. Ram Kishan Dass
R/o 12-B, LIG Flats,
Near Madipur Bus Stop,
Rohtak Road, New Delhi.
2. Sh. Sanjeev s/o Sh. Ram Kishan Dass
R/o 12-B, LIG Flats,
Near Madipur Bus Stop,
Rohtak Road, Delhi. ...Respondents
Petition u/s 14 (1) (a), (b) & (j) of Delhi Rent Control Act
1. Date of institution of the case : 03.12.1999
E-251/09/99 Ganga Prashad (since deceased through LRs) Vs.
Ram Kishan (since deceased through LRs) & Anr. Page 2 of 25
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2. Date of Judgment reserved : 30.11.2013
3. Date of Judgment pronounced : 17.12.2013
JUDGMENT
1. This is an eviction petition u/s 14(1)(a),(b) and (j) of the DRC Act filed by the petitioner Ganga Prashad Sharma (since deceased, now represented through LRs) against Ram Kishan Dass (since deceased, represented through LRs) and Sh. Sanjeev, son of Sh. Ram Kishan Dass.
2. Briefly stated, the facts as narrated in the eviction petition are that the petitioner is the owner of the property bearing no. 3277-3281, Bazar Sita Ram, Lal Darwaza, Delhi having purchased the same by way of registered sale deed dated 22.05.1980 and that respondent no. 1 was an existing tenant in the tenancy premises which is a shop in property bearing no. 3278, Ward No. IX, Bazar Sita Ram, Delhi having a covered area of 97 sq. ft and more specifically shown in red in the site plan filed with the eviction petition. It is the case of the petitioner that respondent no. 1 neither tendered nor paid arrears of rent w.e.f 01.04.1982 at the rate of Rs. 38.50/- per month despite repeated request and demands. A notice of demand of arrears of rent and on other grounds was issued on 31.10.1991 which was served upon the respondent no. 1 on 07.11.1991. Despite service of the said notice, respondent no. 1 did not make payment of arrears of rent as demanded. Consequently, a suit for injunction and recovery of rent of three years was filed and in the said suit respondent no. 1 tendered the arrears of rent as demanded, in the court on 03.11.1993 which was accepted by the petitioner without prejudice to his rights. It is further the case that subsequent thereto, respondent no. 1 again did not tender or pay the arrears of rent w.e.f 01.09.1993 at the rate of E-251/09/99 Ganga Prashad (since deceased through LRs) Vs. Ram Kishan (since deceased through LRs) & Anr. Page 3 of 25 //4// Rs. 42.35/- per month (which was enhanced by 10% under the law) and the rent at the rate of Rs. 46.58/- per month w.e.f 01.05.1997 (again enhanced by 10% under the law) despite service of another demand notice dated 26.03.1997. Petitioner again filed Civil Suit for recovery of rent therein demanding the rent till 31.05.1997 and the respondent no. 1 paid the claimed amount of rent on 28.08.1997 in the Court itself. It is stated that respondent no. 1 is again in arrears of rent w.e.f 01.06.1997 at the rate of Rs. 46.58/- per month. It is also the case that the respondent no. 1 caused substantial damage to the tenancy premises/shop by making additions, alterations and extending the shop upto the platform/chabutra thereby enhancing its size/covered area from 97 sq. ft to 124 sq. ft. illegally and unauthorizedly without the permission/consent of the petitioner. It is also the case that respondent no. 1 after making the additions/alterations in the tenancy premises had sublet, assigned or otherwise parted with its possession to his son/respondent no. 2 Sanjeev in or about the year 1994. It is also stated that the respondent no. 1 himself started working with a firm M/s Babu Ram Rajesh Kumar, Gali Prantha Wali, Chandni Chowk, Delhi. It is on the basis of these facts that a prayer has been made to pass an eviction order against the respondents and in favour of the petitioner in respect of the tenancy premises.
3. Summons were issued to both the respondents and whereas respondent no. 2 did not enter his appearance and was proceeded ex-parte, it was respondent no. 1 alone who contested the matter by filing his written statement. In the written statement, all the averments of the eviction petition were denied as false and incorrect. However, it was admitted that the rent upto 31.05.1997 was paid by the respondent no. 1 on 28.08.1997 in the Court E-251/09/99 Ganga Prashad (since deceased through LRs) Vs. Ram Kishan (since deceased through LRs) & Anr. Page 4 of 25 //5// during the pendency of the Civil Suit. Regarding causing of the substantial damage, it was stated that the tenancy premises/shop has remained in the same condition and position as it was at the time of letting out to the answering respondent. It was stated that there was no chabutra in front of the tenancy shop, therefore, there is no question of covering of shop till the chabutra/platform. Regarding subletting, the averments of the eviction petition were again denied as false and incorrect. It was stated that the respondent no. 1 has been carrying on petty parchun/grocery business from the tenancy shop as a sole proprietor and it was only at times that the respondent no. 2/his son assisted him in the said business. It was also stated that as the respondent no. 1 did not earn sufficient income from the said business and as such in order to make his both ends meet, started working as a part time job with M/s Babu Ram Rajesh Kumar for two hours in the noon. Accordingly, a prayer was made to dismiss the eviction petition with costs.
4. Petitioner filed the replication to the written statement of the respondent no. 1 wherein the averments of the written statement were denied and controverted and those of the eviction petition were reiterated and reaffirmed.
5. It is pertinent to note that when the matter was at the stage of petitioner's evidence and he was partly cross examined, the petitioner expired and an application for bringing on record his LRs was preferred u/o 22 rule 3 CPC which came to be allowed vide order dated 06.11.2007. It is also pertinent to note that during the pendency of the eviction proceedings, respondent no. 1 also expired and his LRs were brought on record vide proceedings dated 05.10.2004 on the application preferred u/o 22 rule 4 CPC r/w order 32 rule 3 CPC.
E-251/09/99 Ganga Prashad (since deceased through LRs) Vs. Ram Kishan (since deceased through LRs) & Anr. Page 5 of 25 //6// Evidence led by the parties.
6. In order to substantiate their case, LRs of the deceased petitioner examined two witnesses. PW-1 Sh. Anil Kumar Sharma is one of the LRs of the deceased petitioner and he was examined by way of affidavit Ex. PW-1/A1. PW-2 Virender Saini is the draftsman who prepared site plans reflecting therein the tenancy premises as it was let out and the tenancy premises as it existed after material alterations and additions. Following documents were relied upon by the petitioners :-
i. Ex. PW-1/1 (OSR) is the certified copy of the sale deed dated 22.05.1980 by virtue of which the deceased petitioner Ganga Prashad Sharma purchased the property bearing municipal no. 3277-3281, Ward No. 9, Bazar Sita Ram, Delhi-06.
ii. Ex. PW-1/2 is the building plan of the property bearing no. 3277-3281 which was part of the sale deed Ex. PW-1/1.
iii. Ex. PW-1/3 and Ex. PW-1/4 are the two site plans prepared by the draftsman/PW-2 Virender Saini.
iv. Ex. PW-1/5 is the notice dated 31.10.1991 with its postal receipt as Ex. PW-1/6 and the returned AD card as Ex. PW-1/7.
v. Ex. PW-1/8 is again a legal notice dated 26.03.1997 with its postal receipt as Ex. PW-1/9, returned AD card as Ex. PW-1/10 and UPC receipt as Ex. PW-1/11.
vi. Ex. PW-1/12 is the certified copy of the civil suit for recovery bearing civil suit no. 153/97 titled as Ganga Prashad Sharma Vs. R.K.Dass. Ex. PW-1/13 are the statements of respondent no. 1 R.K.Dass and of P.N.Mehta, Ld. Counsel of the plaintiff (petitioner herein) recorded in the said civil suit regarding payment of rent upto 31.05.1997 without E-251/09/99 Ganga Prashad (since deceased through LRs) Vs. Ram Kishan (since deceased through LRs) & Anr. Page 6 of 25 //7// prejudice to the rights of the parties. Ex. PW-1/14 is the certified copy of the order dated 28.08.1997 passed by the Ld. Judge, Small Cause Court, Delhi in the abovesaid civil suit thereby disposing it of as satisfied.
vii. Ex. PW-1/15 (OSR) is the copy of the telephone directory of the year 1994 wherein respondent no. 2 has been shown having his telephone number installed in the tenancy premises.
viii.Ex. PW-1/16 is the certified copy of the order dated 10.12.1998 of the Competent Authority (Slum).
ix. Ex. PW-2/1 is the survey report dated 10.03.2003 of the tenancy premises/shop as prepared by PW-2 Virender Saini.
The documents proved during the cross examination of PW-1 and PW-2 by the respondent side are as follows :-
i. Ex. PW-1/R1 is the copy of the notice dated 02.01.2006 served by the respondent upon the deceased petitioner and Ex. PW-1/R2 is its returned AD card.
ii. Ex. PW-2/R1 and PW-2/R2 are the two photographs showing the tenancy premises/tenanted shop at point A and B.
7. Respondents, on the other hand, in their defence examined Veena Gupta, one of the LRs of the deceased respondent as RW-1 by way of affidavit Ex. R1.
8. Heard the Ld. Counsel for the parties and perused the record carefully.
Case of the petitioner u/s14(1)(a) of the DRC Act
9. With respect to the ground of eviction u/s 14 (1) (a) of the DRC Act, following were required to be established by the petitioner side :-
E-251/09/99 Ganga Prashad (since deceased through LRs) Vs. Ram Kishan (since deceased through LRs) & Anr. Page 7 of 25 //8// i. That there existed relationship of landlord and tenant between the parties;
ii. That the respondent (no. 1) was in arrears of rent/legally recoverable rent on and before the date of notice of demand; iii. That the respondent/tenant was served with the notice of demand in the manner as provided in section 106 of the Transfer of Property Act ; iv. That the respondent/tenant failed to pay or tender the whole of the arrears of rent legally recoverable from him alongwith interest as claimed within two months of the service of notice of demand upon him.
10. As is to be seen, neither the relationship of landlord-tenant nor the rate of rent which was subsequently enhanced to Rs. 46.58/- per month is in dispute between the parties. Also, the service of two demand notices, one dated 31.10.1991 identified as Ex. PW-1/5 and the other dated 26.03.1997 identified as Ex. PW-1/8 is not in dispute between the parties. It is also an admitted fact that the arrears of rent as demanded by the petitioner in the abovesaid two demand notices was paid by the respondent (since deceased, now represented through LRs) in the civil suit for recovery of rent preferred by the petitioner and its certified copy identified as Ex. PW-1/12. The said payment as made by the deceased respondent no. 1 was for the rent upto 31.05.1997 and was made on 28.08.1997. Clearly from the said documentary evidence which has come on record and proved by the petitioners, it is apparent that despite service of the two demand notices Ex. PW-1/5 and PW-1/8 respectively, respondent did not pay or tender the arrears of rent as demanded/claimed within two months of the service of the said notices. As E-251/09/99 Ganga Prashad (since deceased through LRs) Vs. Ram Kishan (since deceased through LRs) & Anr. Page 8 of 25 //9// has been noted, the arrears of rent till 31.05.1997 was paid only on 28.08.1997 and the said payment was tendered and accepted by the parties without prejudice to their rights. Thus, the petitioner discharged the onus of proving that respondent no. 1 was in arrears of rent at the time of issuance of two notices Ex. PW-1/5 and PW-1/8 and that the arrears were not paid or tendered within two months of the service of the said notices. The onus then shifted upon the respondent's side to prove otherwise that respondent no. 1 was never in arrears of rent or that the payment made in the civil suit was not in pursuance to the demand notices or towards the arrears of rent. Admittedly, there is no evidence brought on record by the respondent's side to show or suggest that the respondent no. 1 was not in arrears of rent or that the arrears of rent, if any, were paid or tendered within two months of the service of two demand notices. Hence, the petitioner succeeds in establishing the ground of eviction u/s 14(1)(a) of the DRC Act against the respondent no. 1 (since deceased and represented through LRs).
Case of the petitioner u/s14(1)(b) of the DRC Act
11. Section 14(1)(b) lays down that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on the ground that the tenant has, on or before 9th June, 1952, sublet, 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. Section 14 (1) (b) of the Act uses three expressions namely, "subletting", "assigning" and "parting with possession". As has been held by our Hon'ble High Court in Sohal Lal Vs. Sri Pal and others, 48 (1992) DLT 65 that "these three expressions deal with E-251/09/99 Ganga Prashad (since deceased through LRs) Vs. Ram Kishan (since deceased through LRs) & Anr. Page 9 of 25 //10// different concepts and apply to different circumstances. In subletting, there should exist the relationship of landlord and tenant as between the tenant and his subtenant and the instance of letting of the tenancy must be found namely the transfer of an interest in the estate, demand of rent and the right to possession against the tenant in respect of the premises sublet. In assignment the tenant has to divest himself of all the rights that he has as a tenant. The expression parting with possession undoubtedly postulates parting with legal possession. Parting with possession means giving possession to persons other than those to whom possession has been assigned by the lease and the parting with possession must have been by the tenant. The divestment or abandonment of right to possession is necessary in order to invoke the clause of parting with possession".
12. Hon'ble Supreme Court in Celina Coelho Pereira (Ms) & Ors. Vs. Ulhas Mahabaleshwar Kholkar & Ors., (2010) 1 SCC 217 summarized the legal position with respect to the eviction on the grounds of sub-letting in the following :-
(i) In order to prove mischief of sub-letting as a ground for eviction under Rent Control Laws, two ingredients have to be establish, (one) parting with possession of tenancy or part of it by the tenant in favour of a third party with exclusive right of possession, and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent.
(ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to sub-letting. However, if the E-251/09/99 Ganga Prashad (since deceased through LRs) Vs. Ram Kishan (since deceased through LRs) & Anr. Page 10 of 25 //11// purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-
letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant.
(iii) The existence of deed of partnership between the tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person.
(iv) If the tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be alongwith partners, tenant may not be said to have parted with possession.
(v) Initial burden of proving sub-letting is on the landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to the tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.
(vi) In other words, initial burden lying on the landlord would stand discharged by adducing prima facie proof of the fact that a party other than the tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and E-251/09/99 Ganga Prashad (since deceased through LRs) Vs. Ram Kishan (since deceased through LRs) & Anr. Page 11 of 25 //12// would amount to proof unless rebutted.
13. Applying the principle as laid down to the facts of the present case, it is to be seen that the petitioner in the eviction petition and in the evidence alleged that respondent no. 1 during his lifetime had sublet, assigned or otherwise parted with the possession of the tenancy premises/shop to his son/respondent no. 1 Sanjeev. In support of the said claim, petitioner made a mention of two facts. Firstly, that there is an admission by the respondent no. 1 in the WS that he was working with M/s Babu Ram Rajesh Kumar and secondly, through the entry in the telephone directory which was proved and identified as Ex. PW-1/15, petitioner had proved that respondent no. 2 who is son of the respondent no. 1 had his telephone number installed in the tenancy premises.
14. Ld. counsel for the petitioners argued that once the petitioners have succeeded in showing by virtue of Ex. PW-1/15 that name of the respondent no. 2 is shown in the telephone directory list having his telephone number installed at the tenancy premises address, the onus was upon the respondent to prove otherwise. It was further argued that even RW-1 Veena Gupta in her cross examination had stated that her defence is the same as taken up by her father in law (deceased respondent no. 1) in his written statement. It was further argued that RW-1 had given contradictory replies so far as the carrying on of the business by the two respondents from the tenancy premises is concerned. It was also argued that RW-1 had admitted that her father in law/deceased respondent no. 1 had permitted her brother in law Sanjeev/respondent no. 2 herein to sit in the suit premises during 1994-95. It was further argued that respondent no. 2 Sanjeev Kumar despite being a son E-251/09/99 Ganga Prashad (since deceased through LRs) Vs. Ram Kishan (since deceased through LRs) & Anr. Page 12 of 25 //13// of the respondent no. 1 neither contested the eviction proceedings nor appeared as a witness in the witness box so as to counter the case as projected by the petitioners. It was argued that if the case of the petitioners would have been false or incorrect, respondent no. 2 being one of the LRs of respondent no. 1 ought to have stepped into the witness box. It was argued that the respondent no. 2 having not been produced as a witness in defence, it amounts to withholding of material evidence and an adverse inference is to be drawn against the respondent's side. It was also argued that RW-1 in her further cross examination had also admitted that later on, respondent no. 2 started crockery business from the tenancy shop. It was thus argued by the ld. counsel for the petitioners that from the admission of the respondent no. 1 in his written statement coupled with the fact that petitioner has successfully shown that respondent no. 2 had a telephone connection in the tenancy premises, it gets established on record that respondent no. 1 had sublet, assigned or otherwise parted with the possession of the tenancy premises/shop to the respondent no. 2 during the subsistence of tenancy.
15. Per contra, Ld. counsel for the respondent argued that merely because there was a telephone connection installed in the name of the respondent no. 2 in the tenancy premises, it cannot in itself be said to be a proof of subletting, assigning or parting with the possession of the tenancy premises by the deceased respondent no. 1 in favour of the respondent no. 2. It was further argued that the onus always remained upon the petitioners to prove that it was the respondent no. 2 who was carrying on the business from the tenancy premises and not the respondent no. 1. It was argued that the petitioners having failed to discharge the said onus, it cannot be said that the E-251/09/99 Ganga Prashad (since deceased through LRs) Vs. Ram Kishan (since deceased through LRs) & Anr. Page 13 of 25 //14// respondents having not examined the respondent no.2 as a witness in defence have withheld material evidence or that an adverse inference is to be drawn against them. It was further argued that the admission of respondent no.1 in the written statement that he was working with a firm M/s. Babu Ram Rajesh Kumar was not an admission of having stopped his business from the tenancy shop. It was argued that respondent no.1 clearly stated in the written statement that as sufficient income could not be earned from the business being run from the tenancy premises, therefore, respondent no.1 was forced to work as a part time job with the aforesaid firm for two hours in the noon when generally no customers visit the tenancy premises/shop. It was, thus, argued that petitioners have failed to prove the case of subletting against the respondent.
16. Having heard the rival contentions and having gone through the record, I am of the considered view that in terms of the principle of law as laid down by the Hon'ble Apex Court in Celina Coelho's case (supra), the initial onus that some person other than the tenant is in exclusive possession of the tenancy premises is always upon the petitioner. As is to be seen, petitioner made an attempt to discharge the said onus by relying upon the relevant entry in the telephone directory of the year 1994 which was identified as Ex PW1/15 so as to establish that it was respondent no.2 who was in possession of the tenancy premises and not the respondent no.1. Merely because telephone connection was installed in the name of respondent no.2 in the tenancy premises, it cannot in itself be said to be a sufficient proof of subletting/assigning or parting with possession. Admittedly, respondent no.2 is one of the sons' of the respondent no.1 and it is quite natural that the son E-251/09/99 Ganga Prashad (since deceased through LRs) Vs. Ram Kishan (since deceased through LRs) & Anr. Page 14 of 25 //15// would at times assist his father in the business carried on from the tenancy premises. Merely because a son sits in the tenancy premises and carries on business, it cannot in itself be said to be a proof of subletting. Petitioner has to prove on record that the possession of the son of the tenant was exclusive and was in exclusion to the possession of the tenant/his father. Admittedly, this is not so in the present case. So far as the admission of the respondent no.1 in the written statement that he was working in the firm is concerned, again it was not an admission of having sublet or parted with possession of the tenancy premises. What was stated by the respondent no.1 in the written statement was that as sufficient income could not be earned from the business carried out from the tenancy premises, therefore, he was constrained to do a part time job with a firm and that too for two hours in the noon. It is to be seen that onus was always upon the petitioner to establish that respondent no.1 was doing a full time job with the said firm and not on part time basis as alleged. Admittedly, no evidence has been brought on record by the petitioner's side to substantiate the same. So far as the testimony of RW-1 is concerned, what has been stated by her in her cross examination is that her brother -in-law Sanjeev Kumar (respondent no.2) used to sit in the suit premises during the year 1994-95. What has been stated by RW-1 again does not show the exclusive possession of the respondent no.2 in the tenancy premises but the permission given by the respondent no.1 to the respondent no.2 to sit and assist in the business being run from the tenancy premises. Also, testimony of PW-1 Anil Kumar Sharma offers no help so far as subletting of the tenancy premises is concerned as except his bald testimony that respondent no.1 was working with the firm and that he had E-251/09/99 Ganga Prashad (since deceased through LRs) Vs. Ram Kishan (since deceased through LRs) & Anr. Page 15 of 25 //16// sublet the tenancy shop to his son/respondent no.2, nothing further was stated by the witness and this in itself is not sufficient to establish subletting. Thus, petitioners fail to establish and prove the ground of eviction u/s 14 (1)
(b) of the DRC Act.
Grounds u/s 14(1)(j) of the DRC Act
17. Before taking up the rival contentions of the Ld. counsel for the parties, it is deemed fit to make a reference to the law regarding s. 14 (1) (j) of the DRC Act which was summarized by Hon'ble High Court of Delhi in Suraj Prakash Chopra Raj Kumar Vs. Baij Nath Dhawan & Anr., 103 (2003) DLT 645 as follows :-
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 the construction without the consent of landlord. iv. the said construction has materially affected the tenancy premises and further that 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 E-251/09/99 Ganga Prashad (since deceased through LRs) Vs. Ram Kishan (since deceased through LRs) & Anr. Page 16 of 25 //17// 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 utilization 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.
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.
18. Now, coming on to the facts of the present case, the alleged substantial damage in the tenancy premises has been pleaded by the petitioner in the following words :-
i. that the respondent/tenant with a view to enlarge the projection under the chajja over the tenanted shop had illegally fixed three iron pipes 1 inch diameter/T-iron about 6 ft. long in front wall of the shop so as to cover the platform in front thereof. Subsequently, respondent/tenant illegally and unauthorizedly removed the dividing wall having door in the shop and converted the tenancy shop into one big shop and also lowered the floor of the shop as well as of the platform/chabutra and E-251/09/99 Ganga Prashad (since deceased through LRs) Vs. Ram Kishan (since deceased through LRs) & Anr. Page 17 of 25 //18// affixed/installed iron shutter at the end of the platform/chabutra from its original position thereby extending the main shop upto the end of the platform.
ii. Subsequently, in the last week of September, 1993, respondent/tenant made further additions and alterations by digging out the earth of the floor and reducing the thickness of the walls of the shop from inside so as to make it wide and spacious. These alterations made the walls weak to bear the load of the upper storey structure. Also, iron girders were fixed in the shop under the existing roof with stone slabs placed over it to make another ceiling under the existing ceiling resulting in over load on the weakend walls. With respect to the said act of the respondent/tenant a civil suit for injunction was filed which is pending disposal.
19. To substantiate the abovesaid allegations of causing of substantial damage to the tenancy premises by the respondent/tenant, as is to be seen petitioner examined one of the LRs Anil Kumar Sharma as PW-1 and the draftsman Virender Saini as PW-2. PW-1 in his testimony by way of affidavit Ex. PW-1/A1 reiterated the averments of the eviction petition. In his cross examination PW-1 stated that respondent no. 1 Ram Kishan was a tenant in respect of the suit premises from the time much before the purchase of the suit property by his late father/petitioner. He further admitted that there is a pavement in front of the tenancy shop which belongs to the government and is in existence till date. He also admitted that as on date, the shutter of the suit premises and that of adjoining shops are at the same level and at the same distance from the road. In his further cross examination, PW-1 stated that he E-251/09/99 Ganga Prashad (since deceased through LRs) Vs. Ram Kishan (since deceased through LRs) & Anr. Page 18 of 25 //19// cannot state the height of the shop from the ground when the respondent Ram Kishan was inducted as a tenant in the tenancy premises. From the testimony of PW-1 and the case as projected in the eviction petition, one fact which emerges on record is that respondent no. 1 Ram Kishan was the tenant in respect of the tenancy premises/shop much prior to its purchase by the petitioner from the previous owner in May, 1980. Thus, what was the extent of the tenancy premises at the inception of tenancy, there is no evidence on record. The evidence which the petitioner has relied upon so as to project and give the extent of the tenancy premises as it existed is the building plan identified as Ex. PW-1/2 of house bearing no. 3277 to 3281, Ward no. IX, Bazar Sita Ram, Delhi which was part of the sale deed Ex. PW-1/1. Measurement of the shops in the abovesaid property has been given in the said building plan Ex. PW-1/2 and it includes the tenancy shop as well. In the building plan, a platform and chabutra has been shown just in front of the four shops situated on the ground floor of the above said property. One more relevant fact which may be taken note of is the admission of PW-1 in his cross examination that the shutter of the suit premises and that of the adjoining shops are at the same level and at the same distance from the road. This admission of PW-1 shows that even if there was any addition/alteration done to the tenancy premises still it was no different from the other adjoining shops and was in existence much before the time when the property in question was purchased by the petitioner. Now, coming on to the testimony of PW-2 Virender Saini, who for the petitioners is a material witness, he in his examination in chief recorded on 29.11.2010 stated that he alongwith the deceased Ganga Prashad went to the property bearing no. 3278, Ward E-251/09/99 Ganga Prashad (since deceased through LRs) Vs. Ram Kishan (since deceased through LRs) & Anr. Page 19 of 25 //20// No. IX, Near Lal Darwaza, Bazar Sita Ram, Delhi-06 and inspected the shop situated on the ground floor and a part of the said property on 10.03.2003. He improved upon by stating that he visited the shop in the year 1991 and 1993 and prepared the report Ex. PW-2/1 on 10.03.2003. He also identified the site plans prepared by him as Ex. PW-1/3 and Ex. PW-1/4 respectively. He further stated that he submitted the report as per site plan and after seeing the original site plan and compared the status of the property with it. Perusal of the report Ex. PW-2/1 which is dated 10.03.2003 shows the witness to have visited the property firstly on 15.06.1991, secondly on 25.09.1993 and lastly on 28.02.2003. In the report, it has been stated that on the first visit on 15.06.1991, PW-2 has made a comparison of the said plan/building plan which was part of the registered sale deed and then had compared the existing structure/tenancy shop and has thus noted alterations in the nature of removal of supporting/dividing walls converting into one big shop shown in green color in the site plan Ex. PW-1/3, installation of a shutter at the end of the platform/chabutra and 3 iron pipes affixed on the front wall below chabutra. On his second visit on 25.09.1993, PW-2 reports in the report Ex. PW-2/1 about the following changes and alterations :- (i) 4-5 persons were working : (ii) walls were peeld off to widen area of the shop and no plaster on the walls : (iii) girders affixed and stone slabs being put on girders under original old roof so as to construct another roof with lowering of the floor after digging but still not completed : (iv) karees of old roof visible through space between un-plastered stone slabs on girders to construct new roof under the old roof : (v) Cement, roree, badarpur lying there and lastly debris also lying inside and outside the shop. The area of the shop is now shown to be 124 sq. E-251/09/99 Ganga Prashad (since deceased through LRs) Vs. Ram Kishan (since deceased through LRs) & Anr. Page 20 of 25 //21// ft. and the additions/alterations as shown in site plan Ex. PW-1/4. On the last visit on 28.02.2003, PW-2 notes in his report that plaster has been done inside the shop on walls with a new constructed roof and floor. Cracks appeared all over the property and the walls found tilted/deformed. Dilapidation and weakening of the foundation observed due to alterations done in the structure. PW-2 in his cross examination had stated that he holds no degree or diploma in the field of architecture and that has done only a diploma in the field of draftsman after passing 12th standard. He also stated that he had a license from MCD to inspect property and give survey report of the property measuring 200 sq. yards, however, admitted that no such permission or license has either been filed or brought by him. PW-2 in his further cross examination admitted that the tenancy premises/shop has been shown at point A and B in the photographs Ex. PW-2/R1 and Ex. PW-2/R2. He also admitted that he was not present when the shop in question was let out and also does not know what was the length/width and height of the shop at the time of letting out.
20. Ld. counsel for the petitioners argued that as is apparent from the testimony of PW-2, petitioners have succeeded in establishing that the respondent no. 1 caused substantial damage to the tenancy premises by not only extending its area from 97 sq. ft. to 124 sq. ft. but also making other substantial additions/alterations without the consent of the deceased petitioner.
21. Per Contra, Ld. counsel for the respondent argued that respondent no. 1 was already a tenant much prior in time to the purchase of property by the petitioner and that the tenancy premises/shop was the same as it was E-251/09/99 Ganga Prashad (since deceased through LRs) Vs. Ram Kishan (since deceased through LRs) & Anr. Page 21 of 25 //22// when the purchase of the property was made by the petitioner. It was further argued that PW-2 Virender Saini placed no document on record so as to establish his competency to inspect the property and file the survey report. It was also argued that PW-2 admitted that he holds no degree or diploma in the field of architecture and had only a diploma in the field of draftsman. It was argued that PW-2 holding no degree/diploma in the filed of architecture/civil engineering could not have inspected the property or have given the survey report Ex. PW-2/1. It was also argued that even otherwise PW-2 in his cross examination admitted that the tenancy premises/shop has been shown at point A and B in the photographs Ex. PW-2/R1 and Ex. PW-2/R2. It was argued that from the photographs, it is evident that the tenancy premises/shop is having the same front and location as that of the adjoining shops. It was argued that even PW-1 in his cross examination admitted that the shutter of the tenancy premises/shop and that of the adjoining shops is at a same distance and place from the pavement which belongs to the government. It was thus argued that the survey report Ex. PW-2/1 cannot be relied upon and thus petitioners have failed to prove the case of substantial damage done to the tenancy premises by the respondent no. 1.
22. Having heard the rival contentions and having gone through the record, one fact which emerges is that when the tenancy premises/shop was let out to the respondent no. 1, the present petitioner was not in the scene as he purchased the property comprising the tenancy premises from the previous owner/landlord in May, 1980. Another fact which emerges from the record is that there is no document available with the petitioner so as to prove on record as to what was the dimension or measurement and description of the E-251/09/99 Ganga Prashad (since deceased through LRs) Vs. Ram Kishan (since deceased through LRs) & Anr. Page 22 of 25 //23// tenancy premises at the inception of tenancy. The only document relied upon by the petitioner to show the extent and dimensions of the tenancy premises is the building plan of house no. 3277-3281 identified as Ex. PW-1/2 which was part of the sale deed Ex. PW-1/1 executed on 22.05.1980. This document which is the building plan cannot be said to be a proof of the dimensions of the tenancy premises when it was let out or when the property was purchased by the petitioner from the erstwhile owner/landlord. At the most, the building plan Ex. PW-1/2 gives the exact dimensions and measurement of the entire property which was possessed and owned by the erstwhile owner/landlord and cannot be said to be a reference point for verification of the dimensions of the various tenancy portions including the tenancy premises at the inception of the respective tenancies. Had it been the case that the tenancy premises/shop was having the same dimensions as shown in the building plan Ex. PW-1/2, there ought to have been a reference in the sale deed Ex. PW-1/1 as otherwise the sale deed makes a mention of the various portions/shops under the tenancy of various tenants including the respondent no. 1 herein. Going further, there is nothing in the testimony of the petitioner's witnesses that when the property was purchased from the erstwhile owner/landlord, it was informed that the tenancy premises/shop is in the same shape and structure as it existed at the inception of tenancy. Thus, there is nothing proved on record by the petitioner's side as to what was the exact measurement and dimensions of the tenancy premises/shop when the same was purchased by the petitioner from the erstwhile owner. So far as the testimony of draftsman PW-2 Virender Saini is concerned, it is to be seen that in his cross examination PW-2 not only admitted that he was not present E-251/09/99 Ganga Prashad (since deceased through LRs) Vs. Ram Kishan (since deceased through LRs) & Anr. Page 23 of 25 //24// when the shop in question/tenancy premises was let out or what was its length, width and height at the time of letting out, he further admitted of the tenancy premises/shop being shown at point A and B in the photographs Ex. PW-2/R1 and PW-2/R2 respectively. The said photographs depicts that the tenancy premises/shop is at the same level and has the same construction as of the adjoining shops existing in the property in question. Also, during his examination in chief, PW-2 Virender Saini initially stated that he alongwith petitioner Late Ganga Prashad visited and inspected the tenancy premises/shop on 10.03.2003. It was subsequently that he improved upon by stating that he visited the shop in the year 1991 and 1993 and submitted the report on 10.03.2003. As to what made him kept waiting in preparing the report till the year 2003 when the inspection has been stated to have been carried out way back in the year 1991 and 1993, no explanation was offered by the witness in his testimony. Even otherwise, as per the case of the petitioner, there have been three visits and inspections by the draftsman, firstly on 15.06.1991, secondly, on 25.09.1993 and lastly on 28.02.2003. In his examination in chief PW-2 Virender Saini did not utter a single word as to his last visit and inspection on 28.02.2003. Even if it is believed that PW-2 did visit and inspect the tenancy premises/shop on three occasions as above noted, still there is nothing in his testimony as to how he could have entered inside the tenancy premises/shop without seeking the permission of the respondent no. 1 or of the person alleged to be occupying and remaining present at the relevant time. Also, except the report Ex. PW-2/1, there is no other accompanying document especially in the form of photographs of the site at the time of its inspection which could otherwise have given credence to E-251/09/99 Ganga Prashad (since deceased through LRs) Vs. Ram Kishan (since deceased through LRs) & Anr. Page 24 of 25 //25// the report. Thus, from the evidence brought on record by the petitioner's side, it cannot be said that respondent no. 1 caused substantial damage to the tenancy premises/shop of the nature as described in the eviction petition. Therefore, the petitioners fail to establish the ground of eviction u/s 14(1)(j) of the DRC Act.
23. In view of the forgoing, whereas the eviction petition of the petitioners u/s 14(1)(b) and (j) of the DRC Act is dismissed, the same is allowed u/s 14(1)
(a) of the DRC Act. No orders as to costs.
24. Be put up for Nazir report regarding compliance of section 15(1) of the DRC Act and for consideration on the point of giving benefit u/s 14(2) of the DRC Act for 30.01.2014.
(Announced in the open court
on 17.12.13) (Satish Kumar Arora)
ARC-1/Central/THC/Delhi
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