Delhi District Court
Sh. Milkhi Ram vs Smt. Mukhtiari Devi on 7 August, 2008
1/15
IN THE COURT OF SHRI RAKESH TEWARI:
ADDL. DISTRICT JUDGE: DELHI.
MCA NO.4/08
Sh. Milkhi Ram
s/o Sh. Nihal Singh
r/o 2957, Gali No.12,
Ranjit Nagar,
New Delhi - 110008.
....Appellant
VERSUS
1. Smt. Mukhtiari Devi
w/o Late Sh. Mohinder Singh
2. Sh. Sahib Singh
s/o Late Sh. Mohinder Singh
3. Sh. Anup Singh
s/o Late Sh. Mohinder Singh
All r/o WZ-117, Shadipur,
New Delhi - 110008.
....Respondents
Date of Institution : 25.07.2008
Date when the case reserved for order : 04.08.2008
Date of Order : 07.08.2008
ORDER
1. This is an appeal directed against the impugned order dated 19.7.2008 by the concerned Ld. Civil Judge in suit No. 2/15 363/08 to the extent whereby in the application U/o 39 Rules 1 and 2 CPC the permission to carry out the repairs of the fallen roof of the tenanted premises by the appellant was rejected on the ground that the subject matter of repair was to be entertained and tried by the court of Ld. Rent Controller particularly keeping in view the nature of extensive repairs which were required to be carried out in the suit property.
2. The facts giving rise to the present appeal are that the appellant has filed a suit for permanent injunction against the respondents to the effect that he was a tenant in the suit property since 1960 and from time to time the monthly rent was increased and the initial landlord was one Sh. Ghasi Ram and after his death his son namely Sh. Mohinder Singh became the landlord and after the death of Sh. Mohinder Singh, the present respondents, being the legal heirs of the deceased landlord, became the landlords of the premises in question.
3. It is alleged in the suit by the appellant that the respondents are bent upon evicting him from the premises in question and that he is an old person of 70 years of age and that the roof of the tenanted premises shown in the 3/15 photographs was damaged badly and the major portion of the roof had fallen down and as the rainy season is in progress, the roof is required to be repaired and for that purpose he brought the material and labour on 14.7.2008 but the respondents not only threatened the labour but did not allow to carry out the repairs of the fallen roof and the application U/o 39 Rules 1 and 2 CPC was filed along with the suit praying therein that an ex parte ad-interim injunction may be granted in favour of the appellant and against the respondents restraining them and their associates in causing any interference or disturbance in the peaceful possession and occupation of the appellant and also from carrying out the permissible repair of the portion of the roof and from dispossessing the appellant from the suit premises.
4. The respondents did not file any written statement by the date but filed a reply to the said application U/o 39 Rules 1 and 2 CPC wherein they have taken the objection that the appellant has suppressed the material facts from the court as they have already filed eviction petition under Section 14(1)(f) of the DRC Act for the eviction of the appellant for carrying out the repairs of the premises in question and that they had 4/15 no intention to forcibly dispossess the appellant and that there existed a relationship of tenant and landlord between the appellant and the respondents and as such jurisdiction of the civil court is barred under Section 50 of the DRC Act and that the appellant has got equal and efficacious remedy under Section 44 of the DRC Act to get the permission of repair from the court of ld. Rent Controller and thus, opposed the said application of the appellant.
5. Ld. Trial Court held that the respondents did not dispute the appellant as the tenant in respect of the suit property, they were restrained from dispossessing the appellant from the suit property without following the due process of law but rejected the prayer of the appellant qua the repairs to be carried out in the suit property.
6. Before this appellate court, the respondents have filed the reply to the memo of appeal wherein it has been alleged that the premises in question is lying locked since 1991 as the said premises is no more required by the appellant as he is residing in property no. 2954, Gali No.12, Ranjit Nagar, Delhi, which is just in front of the suit property and has been built as his own house by the appellant and it is further 5/15 averred that for the purpose of running his business, the appellant is using his property no. 2967/3, Gali No.12, Ranjit Nagar, Delhi, which is also owned by the appellant and that was the reason this tenanted premises in question was lying locked and they have further alleged in the reply that the roof of the tenanted premises has fallen down on 14.7.08 and that the present suit was filed as a counter blast to their eviction petition under Section 14(1)(f) of the DRC Act and if any order granting interim relief of repair is passed, the suit of the appellant will be decreed without any further trial and grant of relief at this stage in the present appeal, the eviction petition so filed by the respondents will become infructuous.
7. I have heard Ld. Counsels for the parties and perused the Trial Court Record.
8. Ld. Counsel for the appellant contended that a suit for permanent injunction is maintainable for the relief of repairs of the premises in question which has become unfit for habitation and that the appellant wants to repair the suit property at his own expenses and as such he may not be forced to go for the remedy under Section 44 of the DRC Act. In his support, he has relied upon a judgment of the Hon'ble 6/15 High Court of Delhi titled Shashi Kumar Mahajan Vs. Ramesh Kumar Mahajan & Ors reported as 61 (1996) Delhi Law Times 402 wherein the directions were issued by the Hon'ble High Court of Delhi for carrying out the repairs and restrained the opposite party from interfering in the said repairs.
9. In the said judgment Hon'ble High Court of Delhi was dealing with a case of family litigation and suit for partition between the family members and as such the said direction and restraint order was passed. Certainly Hon'ble High Court of Delhi was not dealing with the situation for permission of repairs between a landlord and a tenant as is the situation in the present case and as such the said judgment does not come to the help of the appellant and is not applicable to the fact and law involved in the present case.
10. Ld. Counsel for the appellant has further relied upon the judgment of Hon'ble Supreme Court titled Shadi Singh Vs. Rakha reported as AIR 1994 SC page 800 wherein Hon'ble Supreme Court was dealing with a petition filed by 7/15 the landlord for eviction of the tenant for reconstruction of the building since it became unsafe and unfair for human habitation, as the roof had fallen down and the tenant already repaired the roof but without taking recourse under the relevant law and it was in this circumstance that Hon'ble Supreme Court held that the tenant effected repairs by replacing the fallen roof and made it safe and fit for habitation, the requirement of the building for the same purpose no longer subsisted and the fact that the repairs were effected by the tenant at its own cost without taking recourse of Section 12 of the East Punjab Urban Rent Restriction Act, would not alter the situation and as such the tenant could not be ejected.
11. The said judgment, in my considered opinion, was dealing with altogether a different situation where an eviction petition under the said rent legislation was already pending on behalf of the landlord for eviction of the tenant for the repairs of the tenanted premises and in the meantime the tenant repaired the rented premises and it was in this background that the Hon'ble Supreme Court held that the tenant could not be ejected. The said judgment rather goes 8/15 against the interest of the appellant because in the present case also as per submission of the respondents, the eviction petition on the ground of repairs of the premises in question is pending against the appellant, although both the parties are alleging before me that the said eviction petition as well as the present suit are the counter blast of the respective litigations filed by the parties. Even if a litigation may be counter blast but the judicial orders should not curtail or pass any order whereby litigation of a party may become infructuous.
12. Ld. Counsel for the appellant has further relied upon a judgment of the Hon'ble High Court of Delhi titled Mahabir Vs. Vijay Kumar & Anr. reported as 1996 Rajdhani Law Reporter (Note) 11 wherein Hon'ble High Court of Delhi has held that the appellant was occupying the suit premises for about 20 years and the respondent no.1 was its owner and that appellant sued him for injunction that owner should not forcibly dispossess him except by due course of law and that the suit was decreed but in appeal it was remanded to trial court on 23.11.1984 and that a month before this respondent no.1 sold the house to respondent no.2 9/15 on 20.10.1984 and that after remand the suit was dismissed in default and that two years later, he sued respondent no.2 for injunction alleging that he was a tenant and should not be forcibly dispossessed and that the trial court held on 15.1.1990 that appellant was not a tenant and that he should not be forcibly dispossessed and then both respondents sued the appellant for possession on the ground that he was a caretaker and his license had been cancelled but the appellant raised plea that he was tenant and that during the pendency of the case, appellant made an application for permission to repair the property which was opposed and the trial court dismissed the application.
13. It was in this background that Hon'ble High Court of Delhi held that the appellant is admittedly occupying the suit premises for more than 20 years and has got possessory title until he was evicted by the real owner by due process of law and as the respondents do not admit petitioner to be tenant they cannot plead that appellant should go to Rent Controller under Section 44 of the DRC Act and that a tenant may have recourse to Section 44 only if he wants costs of repairs and that the appellant has every right to make the premises 10/15 habitable but in doing so he must not damage or alter the premises.
14. The ratio of the said judgment of the Hon'ble High Court of Delhi was that a person who is not a tenant cannot be forced to take recourse to Section 44 of the DRC Act but in the present case relationship of landlord and tenant is not denied and as such, in my considered opinion, the said judgment also does not come to the help of the appellant coupled with other circumstance and issue involved in the present case, as discussed in this judgment.
15. On the other hand, Ld. Counsel for the respondent has relied upon a judgment of the Hon'ble High Court of Delhi titled Phelps & Company Vs. Shalimar Paints, NDMC reported as 1980 RLR page 646 wherein Hon'ble High Court of Delhi has held that where prayer for interim relief is the same as for permanent relief, the interim injunction should not ordinarily be granted unless there are overwhelming factors and if landlord refuses to repair a deteriorated roof unless tenant vacates the demised premises then the tenant can repair the same himself and if he does not invoke Section 44 of the Rent Act, then he must bear the 11/15 expense himself.
16. In the said case before the Hon'ble High Court of Delhi the subordinate Judge refused the injunction for grant of permission for repairing the fallen roof but the prayer was granted by the Sr. Subordinate Judge and the Hon'ble Single Judge of the Hon'ble High Court of Delhi held that he had heard the parties and had come to the conclusion that this was not the type of injunction that the civil court should ordinarily have granted. It was further held that in a case in which the main prayer is the grant of an injunction to restrain obstruction to the proposed repairs, the granting of the same relief by way of an interim injunction followed by the actual physical carrying on of those repairs would mean that the suit virtually stands fully decided by the interim injunction and from that point of view he had been compelled to find whether there were some overwhelming factors which weighed in favour of the tenant justifying the grant of an injunction. Thereafter the Hon'ble High Court of Delhi has reproduced the provisions of Section 44 of the Act and came to the conclusion that in the circumstances of the said case, as the landlord refuses to carry out the repairs except after 12/15 the tenant has vacated the premises, it was not wrong for the court to grant the injunction prayed for and that the Hon'ble High Court of Delhi would not in any case interfere with the grant of such an injunction on the revisional side. Hon'ble High Court of Delhi as a matter of precaution gave a clarification in para 8 of the judgment which is reproduced as below.
"I think, I would just make one clarification about the injunction. The effect of the injunction is to restrain the defendants from interfering with the repairs. It does not mean that the repairs will become legally valid in the sense of being approved by the Civil Court. Whatever repairs are carried out will have to correspond to the Municipal Corporation bylaws and the plan of the building as sanctioned originally. Any unauthorised construction under the cover of this injunction will not be considered to be justified merely because an injunction has been granted."
17. In my considered opinion, the case reported as 1980 RLR page 646 (Supra) is dealing exactly with the issue 13/15 involved in the present appeal. The material point in the judgment is that the Hon'ble High Court of Delhi was compelled to find whether there were some overwhelming factors which weighed in favour of the tenant justifying grant of an injunction. Otherwise ordinarily such interim reliefs which ultimately disposes of the main relief must not be granted by the civil courts.
18. Judging in the light of the said law laid down by the Hon'ble High Court of Delhi, in the present appeal the relationship of landlord and tenant has not been denied. In the memo of appeal itself I found that on several occasions the appellant himself has taken recourse to the various provisions of the DRC Act such as fixation of the rent by the court of Additional Rent Controller, filing of petition under Section 27 of the said Act for deposit of rent, filing a petition under Section 26 of the said Act for direction to issue the rent receipts etc. The said petitions filed by the appellant were under the provisions which were curative in nature with regard to the rights of the tenants. I failed to see any reason as to why in case of repair of the roof the appellant may not take recourse to the said provision under Section 44 of the 14/15 said Act which is express, wider in its scope, effective and curative in nature also. I have also gone through the photographs placed on record with regard to the fallen roof and I am of the prima facie view that the repair required in the premises is of extensive nature and there are apprehensions on both the sides with regard to carrying out the repairs as such and the said apprehensions may generate further litigations or injunction applications. The fact that the appellant has acquired other premises in the same vicinity has not been rebutted or denied during the course of arguments which is also a strong factor to be taken into consideration in deciding the said prayer of the appellant. Even the second proviso to sub clause (3) of Section 44 of the DRC Act also provided that the Rent Controller can also permit the tenant to make such repairs if he agrees to bear the excess cost himself and the said provision was also referred to by the Hon'ble High Court of Delhi in the case reported as 1980 RLR page 646 (Supra). Thus, I am of the considered opinion, that there are no overwhelming factors in favour of the appellant justifying the grant of the interim injunction which was refused by the Ld. Trial Court and I am 15/15 also of the view that grant of such an injunction will ultimately decide the main relief claimed in the suit itself and which must not ordinarily be granted. Hence, the appeal is hereby dismissed.
19. Nothing said herein above shall effect the merits of the suit in any manner whatsoever nor shall effect the right of the appellant to take appropriate action under any other law, as discussed above, for the relief claimed by him in this suit.
20. A copy of this order be placed on the Trial Court file which be sent back forthwith. Parties are left to bear their own cost. Appeal file be consigned to Record Room. ANNOUNCED IN THE OPEN COURT ON 07.08.2008 (RAKESH TEWARI) ADDL. DISTRICT JUDGE:
DELHI.