Delhi District Court
Shri Devi Charan Gupta vs M/S Kapoor Lamp Shade Co on 18 August, 2012
In the Court of Sh. Manoj Kumar : Rent Controller of New Delhi District at
Patiala House Courts, New Delhi
E. No. 08/08
Unique ID No. 02403C0000911989
In the matter of:
1. Shri Devi Charan Gupta, son of
late Shri Lal Girdhar Lal, age about 85 years,
R/o 6/B, under Hill Road (Forming a part of
the larger plot formerly known as 6, Under Hill Road),
Civil Lines, Delhi - 110 054. (Since deceased and
represented by his legal representative, the
applicant no. 3)
2. Smt. Kailash Gupta, wife of
Shri Devi Charan Gupta, aged about 82 years,
R/o 6/B, under Hill Road (Forming a part of
the larger plot formerly known as 6, Under Hill Road),
Civil Lines, Delhi - 110 054.
3. Shri S.K. Gupta, son of
Sh. Devi Charan Gupta, age about 60 years,
R/o 6/B, under Hill Road (Forming a part of
the larger plot formerly known as 6, Under Hill Road),
Civil Lines, Delhi - 110 054. ....................Applicants
VERSUS
M/s Kapoor Lamp Shade Co.
84, Janpath, New Delhi.
Also available at :
E. No. 08/08 Page no. 1 of 36
8284, Janpath, New Delhi110001. ....................Respondent
Date of Institution : 19.07.1989
Date of Arguments: 08.08.2012
Date of Judgment : 18.08.2012
APPLICATION FOR EVICTION UNDER SECTION 14 (1) (j) OF THE
DELHI RENT CONTROL ACT, 1958.
JUDGMENT
This is an application for recovery of possession of premises namely, showroom on the ground floor measuring 2160 Sq. Feet together with mezzanine floor measuring 300 Sq. Feet alongwith open space measuring 273 Sq. Feet behind the showroom and half portion of the room at the rear side and comprised in property no. 84, Janpath, New Delhi as shown in the site plan enclosed with the application made by applicants Sh. Devi Charan Gupta (since deceased and represented by his legal representative, applicant no. 3 Sh. S.K. Gupta), Smt. Kailash Gupta (name deleted vide order dated 11.07.2003) and Sh. S.K. Gupta under clause (j) of proviso to subsection (1) of section 14 of the Delhi Rent Control Act, 1958 (Act 59 of 1958) against respondent M/s Kapoor Lamp Shade Company.
2. It is stated in the application that by way of a written agreement dated 23.4.1973 the premises namely, showroom on the ground floor measuring 2160 Sq. Feet together with mezzanine floor measuring 300 E. No. 08/08 Page no. 2 of 36 Sq. Feet alongwith open space measuring 273 Sq. Feet behind the showroom and half portion of the room at the rear side as shown in green in the plan enclosed with the application were let out by the applicants (landlord) to the respondent (tenant) at monthly rent of Rs.850/ excluding electricity and water charges; that the premises were let out to the respondent for a period of seven years with option to extend the tenancy for a further period of seven years on the same terms and conditions; that the tenancy has determined by efflux of time but the respondent failed to deliver vacant and peaceful possession of the premises to the applicants; that the respondent has caused or permitted to be caused substantial damage to the premises without oral or written consent and approval of the applicant and has weakened the very existence and foundation of the premises which has also caused nuisance and is also detrimental to the interest of the applicants and their property; that on 06.10.1999 the premises were inspected by a local commissioner Mr. S.L. Dhir who submitted his report that in the course of inspection on 16.10.1999 (sic) he observed the extent of additions and alterations made by the respondent including the additions and alterations made by the respondent without any permission of the applicants after the filing of the present application; that the additions and alterations effected by the respondent at the premises are, namely, (i) illegal and unauthorised construction of the open space on the back of the showroom as a permanent room (red), (ii) illegal and unauthorised E. No. 08/08 Page no. 3 of 36 construction of a basement and underground offices (red), (iii) illegal and unauthorised other additions and alterations endangering the very existence of the property, (iv) in Plan no. 3 one room marked at place "A" is 15'3" x 19' which has been built of pakka brick wall plastered and was being used for office and store and the same is in the main hall of the showroom on ground floor and a portion of this room is partly under the old mezzanine, and this room has got one column in the center and has got one staircase leading downwards and the room has marble floorings and the floor has been dug to two feet visible from the upper surface, and for the digging and lowering of the floor, the plinth of the building has also been cut and such cutting of the plinth is not supported and has reduced the strength of the wall and has become risk to safety; (v) there was an old mezzanine measuring 28' 9" x 10' and 15' 6" x 10' 3" which was increased to 28' 9" x 25' 6" and 28' x 10' 3" which is at the height of 8 feet from the ground and is made of wooden planks and wooden battens which are marked at place B, C, D, E, F, G and H and the said mezzanine was being used as office; in the mezzanine a wall of wooden partition has also been erected for making store and to reach up to this mezzanine a wooden staircase at place mark "I" had also been erected, this mezzanine towards the two walls is supported by wooden beams which have been inserted into the side walls; and the side walls on account of insertion of wooden beams have become weakened and amounts to substantial damage to the building, (vi) a wooden staircase E. No. 08/08 Page no. 4 of 36 marked at place "I" in the plan has also been erected to newly added mezzanine, (vii) a toilet market at place "J" in the plan of size 10' x 5' 9"
high beside a passage for back portion size 10' x 4'5" has been constructed with provision of sewer connection, (viii) AC sheets shed having kitchen marked "K" in the attached plan of about size 6'6" x 8' and a store marked at place "L" in the attached plan about size 6'6" x 4' have been made in the back open courtyard, (ix) the rest of the open courtyard of about size 19' x 12' has been covered from open court into a room marked "L" place "M" in the attached plan by laying AC sheets, (x) in the back of the premises, W.C. marked at place "N" in the attached plan has been made of about size 3'6"
x 4' beyond open passage of about size 4' x 8', and (xi) front one side window and a door have been converted into two show windows and a door in the center; that on 16/17.6.1989 a notice was served upon the respondent through registered AD and UPC by the applicants. It is further stated in the application that since the respondent has caused substantial damage of a nature which cannot be compensated in money, therefore, the applicant seek the eviction of the respondent for unauthorised, illegal and unlawful act in endangering the very existence of the building.
3. The application is contested by the respondent by way of a written statement (which was subsequently amended in the wake of the amendment of the application for eviction) wherein preliminary objections are taken to the effect that the application under clause 14(1)(j) lacks in E. No. 08/08 Page no. 5 of 36 material particulars and the allegation made therein are false and frivolous and the application discloses no cause of action; that all the allegations raised in the application are vague and deserves to be rejected; that the original application was filed in 1989 and the same has been amended as per order dated 16.10.2001 after a span of 12 years; that the main application was kept pending with ulterior motive to pressurise the respondent to get the rent enhanced which the applicants had been demanding and the sole aim of the present application is abuse of the process of the court and to coerce the respondent to accede to the illegal demands of the applicants; that there are two distinct tenancies, one with respect to the main showroom created by registered lease deed dated 23.4.1973 and another tenancy with respect to half portion of a room at the rear side which was created on 01.4.1981; that both these independent tenancy premises cannot be joined for the present proceedings and as such the present proceedings are bad for misjoinder of cause of action as there exists two independent tenancies. In the reply on merits the relationship of landlord and tenant between the parties is not disputed and it is stated that the main showroom was let out at the rate of Rs.700/ per month and later on in April, 1981 another half room at the back was let out at the rate of Rs.150/ per month and both tenancies are separate and independent. In the written statement filed on behalf of the respondent it is denied that the respondent has raised unauthorised construction at the premises and has caused or permitted to be caused substantial damage to the E. No. 08/08 Page no. 6 of 36 premises; that whatever renovation, additions, alterations have been carried out in the premises are strictly according to the terms of the registered lease deed entered into between the parties and with the express consent and the approval of the applicant no. 1. In the written statement filed on behalf of the respondent it is denied that the respondent has illegally or unauthorisedly covered the open space on the back of the showroom as a permanent room; it is stated that no illegal or unauthorised construction has ever been made nor any damage has been caused to the premises. It is also denied that there exists any basement in the premises or the respondent has constructed such basement. It is stated that the floor of the room, which is alleged to have been lowered by about 11/2 feet, was in the same condition except that the respondent carried out the renovation of the same. It is also denied that the floor of the room has been lowered by digging or cutting the plinth and it is stated that the floor of the room was at the time of letting was in the same shape except that the respondent, as permitted by the lease deed, laid a new flooring in it which was badly needed. In the written statement it is also denied that the construction or extension of the mezzanine has been effected and the staircase has caused any damage to the premises or the same are without the consent of the landlord. It is further stated that the premises let out to the respondent are half portion of the main shop which originally had a mezzanine with stairs from southern end of the premises running up to the northern end and since the building was divided into half E. No. 08/08 Page no. 7 of 36 there was no approach to the mezzanine and that is why the respondent was specifically permitted under clause 6 of the lease deed to carry out these changes according to its requirements and satisfaction at its cost. It is further stated that specific permission has been granted under clause 6 of the lease deed and the changed as referred to in subclause (v) and subclause
(vi) of paragraph no. 18(a) of the application for eviction with respect to staircase and mezzanine are with permission. It is further stated that in addition to or in alternative the extension of the mezzanine are of wood supported on girders and they do not come under the purview of any structural change in the premises nor it impair the utility and value of the property nor do they cause any damage to the property. It is further stated that the contents of paragraphs no. 18(a)(vii) to (x) are wrong and denied. It is further stated that the renovation has been effected in the premises as per the terms and conditions of the lease deed entered into between the parties and with specific permission of the landlord. It is further stated that neither of the alteration including covering of courtyard with AC sheets or making of mezzanine on wooden planks amounts to any material alteration as alleged in the application for eviction. It is denied that converting of side window and door into a show windows in any way amounts to damaging of the property and it is stated that permission has been specifically granted in the lease deed. It is further stated in the written statement that the application for eviction be dismissed.
E. No. 08/08 Page no. 8 of 36
4. A replication to the written statement was filed on behalf of the applicants and thereafter the matter was put on trial.
5. In support of their case the applicants got examined PW1 Mr. S.L. Dhir, PW2 Mr. S.K. Gupta, PW3 Mr. Bhoop Singh Sharma, PW4 Mr. Bhagmal Sharma (not produced for cross examination), PW5 Mr. R.K. Bhatia, PW6 Mr. S.K. Arora, PW7 Mr. Rakesh Ranjan, PW8 Mr. Sunil Srivastav, PW9 Mr. Abhishek Maurya, PW10 Mr. N.N. Anand and PW11 Mr. Manoj Madhwal. During the examination of the witnesses of the applicants documents Ex. PW1/1 to Ex. PW1/5, Ex. PW2/1 to Ex. PW2/3, Ex. PW5/1 to Ex. PW5/7, Ex. PW7/1, Ex. PW9/1 to Ex. PW9/4 , Ex. PW10/1, Ex. PW10/A, Ex. PW10, B, Ex. PW11/A, Ex. PW11/B, Ex. PW11/C were also tendered in evidence. After examination of PW11 Mr. Manoj Madhwal evidence on behalf of the applicants was closed.
6. In its defence the respondent got examined RW1 Mr. C.M. Gupta and RW2 Mr. Sant Bhushan Lal. During the examination of the witnesses of the respondent document Ex. RW1/1 was also tendered in evidence and thereafter evidence on behalf of the respondent was closed.
7. During the pendency of the case the applicant no.1 Mr. Devi Charan Gupta expired and on an application made in this regard his legal representative and son, the applicant no. 3, was brought on the record.
8. During the pendency of the case on an application made on behalf of the applicants by order dated 11.07.2003 the name of applicant no.
E. No. 08/08 Page no. 9 of 36 2 Smt. Kailash Devi was struck off from the array of the parties.
9. On 26.2.2011 a statement was made on behalf of the respondent to the effect that the respondent did not press the objection that there were two tenancies and therefore, there should have been two applications for eviction. On 26.2.2011 it was admitted by counsel for the respondent that there is one tenancy between the parties.
10. I have heard counsel for the parties and gone through the material on record carefully.
11. Having drawn my attention on the contents of the eviction application, testimony of PW1 Mr. S.L. Dhir, PW2 Mr. S.K. Gupta, PW3 Mr. Bhoop Singh Sharma, PW5 Mr. R.K. Bhatia, PW6 Mr. S.K. Arora, PW7 Mr. Rakesh Ranjan, PW8 Mr. Sunil Srivastav, PW9 Mr. Abhishek Maurya, PW10 Mr. N.N. Anand and PW11 Mr. Manoj Madhwal, documents Ex. PW1/1 to Ex. PW1/5, Ex. PW2/1 to Ex. PW2/3, Ex. PW5/1 to Ex. PW5/7, Ex. PW7/1, Ex. PW9/1 to Ex. PW9/4 , Ex. PW10/1, Ex. PW10/A, Ex. PW10, B, Ex. PW11/A, Ex. PW11/B, Ex. PW11/C, an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) made on behalf of the respondent on 28.8.2003, letter dated 29.7.2003 filed by the respondent alongwith the application under Order VI Rule 17 of CPC on 28.8.2003 and the law laid down in Asha Rani and others v. Satinder Kumar, 159 (2009) DLT 282, Sukhdev Rai Kaushal v.
Partul Chand
and others , 2009 (4) Law Herald (P&H) 2688, P.C.
E. No. 08/08 Page no. 10 of 36
Purushothama Reddiar v. S. Perumal, AIR 1972 SC 608, Janki Vashdev Bhojwani v. Indusind Bank Ltd., AIR 2005 SC 439, Shakuntala v. Avtar Singh, 113 (2004) DLT 454, Parmeshwari Dass Khanna v. Bhala Nath Parihar, 18 (1980) DLT 372, Ghanshyam Sharma and others v. Surender Nath and others, 2009 LE (DEL) 354, Pearey Lal and another v. Surender Nath and others, 162 (2009) DLT 412, Mehar Ilahi v. Verha Mal, 22 (1982) DLT 384, Subhash Chander v. Rehmat Ullah, 1972 RLR 236, Venkatlal G. Pittie v. Bright Brothers Pvt. Ltd., AIR 1987 SC 1939, Bawa Singh v. Pushpa Wati and others, 1980 (2) All India Rent Control Journal 376, Smt. Nirmala v. Ishwar Chander, AIR 1982 NOC 28 (Punjab & Haryana), Gurbachan Singh v. Shivalak Rubber Industries, AIR 1996 SC 3057, Kartar Singh v. Kesar Singh and another, 1980 (1) All India Rent Control Journal 1, Krishan Dev son of Pahlad Rai v. Jhabu Ram son of Kanhya Lal Brahmin, 1969 RCR 36, Vipin Kumar v. Roshan Lal Anand, 1993 (2) SCC 614, Vidya Wati v. Bhoop Singh, 1979 (1) RCR 407, British Motor Car Company v. Madan Lal Saggi, AIR 2005 SC 240, provisions of the Delhi Building Bye Laws, 1983, provisions of the Punjab Municipal Act, 1911 and the provisions of New Delhi Municipal Council Act, 1994 it is submitted by counsel for the applicants that the respondent has raised unauthorised construction at the premises and has caused structural changes in the premises which are irreparable in nature and thus has violated the provisions of clause (j) of proviso to subsection (1) of section 14 of Act 59 E. No. 08/08 Page no. 11 of 36 of 1958. It is further submitted by counsel for the applicants that the respondent has caused or permitted to cause substantial damage in the premises, therefore, eviction order be passed against the respondent and in favour of the applicants. It is also submitted by counsel for the applicants that the respondent in its application under Order VI Rule 17 of CPC as well as the documents attached with the same has admitted having caused structural changes in the premises and nearby and therefore, ground for eviction stands proved against it. It is also submitted by counsel for the applicants that from the documents proved by the officials of the Land & Development Office (L&DO) the factum of raising unauthorised construction by the respondent is corroborated. It is further submitted by counsel for the applicants that under no provisions of the Punjab Municipal Act, 1911 the unauthorised acts of the applicants can be treated as authorised. It is also submitted by counsel for the applicants that by way of the lease deed entered into between the parties the respondent was permitted to carry out such acts which have been permitted by the applicants and that is also only subject to the municipal law. It is also submitted by counsel for the applicants that even if the applicants have failed to prove causing of substantial damage by the respondent still under the provisions of section 14 (10) of Act 59 of 1958 the respondent can be directed to remove the damage.
12. Per contra, having drawn my attention on Joginder Singh v.
E. No. 08/08 Page no. 12 of 36 Nirmal Nanny Mehra and others, AIR 1986 Delhi 305, Suraj Prakash Chopra Raj Kumar v. Baij Nath Dhawan and another, 103 (2003) DLT 645, Sh. Anoop Chand and others v. Sh. Tarlok Singh, 1977 All India Rent Control Journal 752, Gobind Ram v. Kaushalya Rani and others, 1983 (1) All India Rent Control Journal 295, Shruti Enterprises v. Daya Nand, 63 (1996) DLT 68, Waryam Singh v. Baldev Singh, 2002 Supp (4) SCR 9, lease deed executed between the parties, the documents proved by the officials of the L&DO, provisions of Delhi Municipal Corporation Act, 1958 it is submitted by counsel for the respondent that the respondent has not caused or permitted to cause any substantial damage to the premises and therefore, the application for eviction is liable to be dismissed. It is further submitted by counsel for the respondent that the alleged unauthorised construction was existing at the premises before the commencement of the tenancy between the parties and this fact can be ascertained from the reports of the L&DO. It is further submitted by counsel for the respondent that whatever construction, which was objected to by the applicants, has already been removed by the respondent, therefore, there is no cause to proceed with the present matter which can be dismissed. It is also submitted by counsel for the respondent that the utility and value of the premises has not been diminished by the respondent or its agent and therefore, no eviction order can be passed in the present case.
13. I have given my thoughtful consideration to the submissions E. No. 08/08 Page no. 13 of 36 made on behalf of the parties.
14. By way of the present application for eviction, the applicants have sought eviction of the respondent on the ground prescribed in clauses
(j) of proviso to sub section (1) of section 14 of Act 59 of 1958 which reads as follows:
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 and court or 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 the 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;
* * *
15. In Suraj Prakash Chopra's case (supra) having analysed the provisions of Act 59 of 1958 and the case law on the subject, the Hon'ble Delhi High Court summarised the proposition of law regarding eviction of tenant on the ground mentioned in clause (j) of proviso to subsection (1) of section 14 of Act 59 of 1958 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 E. No. 08/08 Page no. 14 of 36 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 tenancy premises which had brought about material impairment in the value and utility of premise;
(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 alternation 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.
16. In the present case the relationship of landlord and tenant between the parties is not in dispute. It is also not in dispute that the foundation of the relationship of landlord and tenant between the parties, save one room the tenancy of which was admittedly created on 01.04.1981 but now forms part of one tenancy, is a lease deed Ex. PW2/1 dated 23.04.1973 of which a site plan Ex. PW2/2 also forms part. As per the contents of lease deed Ex. PW2/1 the premises namely, a show room on the E. No. 08/08 Page no. 15 of 36 ground floor admeasuring 2160 Sq. Feet together with the mezzanine floor measuring 300 Sq. Feet alongwith open space measuring 273 Sq. Feet behind the said show room situated at 8284, Janpath, New Delhi fully detailed and shown in blue in the plan annexed to the lease deed were let out to the tenant for a period of seven years at monthly rent of Rs.700/. As per clause 6 of lease deed Ex. PW2/1 it was agreed between the parties as follows:
6. That the tenant shall not cause or permit to be caused any damage to the "showroom" or any part thereof. The Tenant shall also not effect or make any additions or alterations of any kind whatsoever without the written permission of the landlord. The tenant shall not do or permit to be done any act which may be nuisance or may be determintal (sic) to the interests of the Landlords or their property. However, the Landlords have permitted the tenant to extend his mezzanine floor in accordance with his requirements at his own costs after obtaining requisite sanction from the N.D.M.C. and Land and Development Office and other appropriate authority, if any, subject to the condition that the structural cost will not be borne by the Landlord on vacation of the premises by the tenant. The Landlord shall remain committed of signing any such document for submission to the authorities concern without any obligation.
17. Further clause 12 of lease deed Ex. PW2/1, whereupon strong reliance has been placed by the learned counsel for the respondent, reads as follows:
12. That the Landlords have agreed to the tenant effecting renovation to the show room consistent with the Municipal byelaws and on obtaining requisite approval from the concerned authorities. The Landlords will render all such assistance as the tenant may require to that connection.
The renovation agreed to include facelifting, providing Mazzanine floor additional bathroom and pantry, shifting of any doors and windows, false ceiling, ducting for airconditioning, fixing cooling tower provisions in order to divide the floor area into rooms, change of flooring and wiring etc. E. No. 08/08 Page no. 16 of 36 However, the cost of all renovation will be borne by the tenant and the tenant will not charge any cost on that account.
18. According to the applicants by raising construction at the premises and by making alterations therein the respondent has caused substantial damage to the premises.
19. As the applicants are alleging causing of substantial damage therefore, the onus of proof to prove the allegations is on the applicants.
20. To prove the factum of causing substantial damage, the applicants have strongly relied upon the pleading of the parties, the contents of an application under Order VI Rule 17 of CPC made on behalf of the respondent, which according to the applicants contains admissions of raising construction by the respondent, and testimonies of PW1 Mr. S.L. Dhir, PW2 Mr. S. K. Gupta and the other witness called from the L&DO.
21. In their application for eviction (as amended) the applicants have pointed out the following construction or alteration in the premises caused by the respondent which resulted in substantial damage to the premises, namely:
(i) Illegally and unauthorisedly constructed the open space on the back of the showroom as a permanent room (red)
(ii) Illegally and unauthorisedly constructed the basement and underground offices (Red)
(iii) Illegally and unauthorisedly have made other additions and alternations endangering the vary existence of the property
(iv) In Plan No.3 one room marked at place "A" is 15'3'' x 19'. This room is built of pakka brick wall plastered and was as being used for office and store. This room is in the main hall of the showroom on ground floor and a portion of this room is partly under the old mezzanine. This room has got E. No. 08/08 Page no. 17 of 36 one column in the centre and has got one stair case leading downwards.
This room had marble floorings and the floor had been dug to two feet visible from the upper surface. For this digging and lowering of the floor, the plinth of the building has also been cut. This cutting of the plinth is not supported and has reduced the strength of the wall. It is submitted that the cutting of plinth has become risk of safety
(v) There was an old mezzanine measuring 28' 9'' x 10' and 15' 6'' x 10' 3''. This mezzanine was increased to 28' 9'' x 25' 6'' and 28' x 10' 3''. This mezzanine is at a height of 8 feet from the ground and is made of wooden planks and wooden battens which are marked at place B, C, D, E, F, 6 and H. This mezzanine was being used as an office. In this mezzanine a wall of wooden partition had also been erected for making store. To reach up to his mezzanine a wooden stair case at place marked "I" had also been erected. This mezzanine towards the two walls is supported by wooden beams which have been inserted into the side walls. The side walls on account of insertion of wooden beams have become weakened and amounts to substantial damage to the building
(vi) A wooden staircase marked at place "I" in the attached plan has also been erected to reach newly added mezzanine
(vii) A toilet marked at place "J" in the attached plan of size 10' x 5' 9'' high beside a passage for back portion size 10' x 4' - 5" had been constructed with provision of sewer connection
(viii) A. C. Sheets shed having kitchen marked "K" in the attached plan of about size 6' 6'' x 8' and a store marked at place "L" in the attached plan about size 6' - 6" x 4' have been made in the back open court yard (now covered with A.C. Sheets).
(ix) The rest of the open court yard of about size 19' x 12' has been covered from open court into a room marked "L" place "M" in the attached plan by laying A.C. Sheets
(x) In the back of the premises, W.C. marked at place "N" in the attached plan has been made of about size 3' 6" x 4 0" beyond open passage of about size 4' 0" x8' 0"
(xi) Front on side window and a door have been converted into two show windows and a door in the centre.
22. In the corresponding paragraphs of the written statement the respondents have denied covering of open space on the back of the show E. No. 08/08 Page no. 18 of 36 room as a permanent room and existence of any basement inside the premises by lowering the floor by about one and half feet or by cutting the plinth. According to the respondent the floor of the room is in the same condition wherein the same was let out by the applicants. In their written statement the respondent has also denied the construction or extension of the mezzanine; and that the erection of the staircase has caused any damage to the premises or the same (the mezzanine and staircase) are without the consent of the landlord, implying that the respondent has extended the mezzanine and erected a staircase which according to it has not caused any damage to the premises and have been done with the consent of the landlord. As per the version of the respondent the mezzanine has been extended as per the consent of the landlord as given by way of lease deed Ex. PW2/1 and the same does not cause any damage. In the written statement of the respondent, the construction of toilet, erection of A.C. Sheet shed, the covering of court yard and erection of W.C. have been referred to as renovation, additions and alterations which according to the respondent have been carried out with the consent of the landlord. According to the respondent such renovation, addition and alterations have been done as per the consent of the landlords given by way of lease deed Ex. PW2/1. Further in the written statement of the respondent it has not been disputed that the respondent has converted front one side window and a door into two show room doors and a door in the centre but according to E. No. 08/08 Page no. 19 of 36 the respondent the permission for the same has been specifically granted in the lease deed.
23. It is noteworthy that during the pendency of the case on 28.08.2003 an application under Order VI Rule 17 read with section 151 of CPC was made on behalf of the respondent which has been signed by Mr. K. Kapoor whose affidavit has also been attached alongwith the application. The said application made on behalf of the respondent was eventually dismissed but the contents of the same, and the conduct of the respondent in making the same, are relevant and admissible in evidence and thus can be relied upon against the respondent. The application filed on 28.08.2003 reads as follows, namely:
IN THE COURT OF SH. V. K. GOEL RENT CONTROLLER, DELHI.
IN THE MATTER OF:
SHRI DEVI CHARAN GUPTA & OTHER .......... PETITIONERS.
Versus M/S. KAPOOR LAMPS SHADE CO. ...........RESPONDENT.
APPLICATION UNDER ORDER 6 RULE 17 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE The Respondent Respectfully submits as under:
1. That the above mentioned eviction petition under Section 14 (1) (j) of Delhi Rent Control Act is pending disposal before this Hon'ble Court.
2. That as per the allegations in para No.17 and 18 of the petition, the E. No. 08/08 Page no. 20 of 36 petitioner alleges that the respondents have caused substantial damage to the premises by carrying out illegal and unauthorised addition and alteration in the premises; more particularly the following: (1). Illegally and unauthorisedly constructed a room measuring 15.3 ft. X 19 Ft. and also lowering its floor in the main hall of the show room.
(2) . A Mezzanine at about 8 ft. heights of wooden planks and battons.
(3). Wooden stairs.
(4). A toilet with provision of sewer connection besides the passage of the back portion.
(5). A kitchen with AC Sheets Shed measuring about 6.6 ft. X 8 ft. (6). Covering of the back courtyard with AC Sheets and construction of a WC at the back of the premises.
3. The contention of the respondent in the written statement is that whatever alleged addition or alteration are there, have been carried out under the specific permission granted by the landlord/petitioner at the time of granting the lease of the premises dated 23rd April, 1973, which is a registered document.
4. That since all these renovation were carried out in the year 197374 all of them have become outdated and the respondents have decided to remove all these addition and alteration and renovate the show room a fresh. For these purpose on 29 th July, 2003 an intimation was sent to the petitioner/landlord informing him about the same and seeking his permission to carry out the same.
5. That the petitioner vide their letter dated 30th July, 2003 granted the said permission subject to certain conditions mentioned therein. a. That the respondents have demolished the room constructed in the main hall of the showroom and has filled the lowered floor with concrete and has brought the level of the room to the level of the floor of the show room.
b. The complete mezzanine constructed and supported on Girders and Beams has been demolished including the removal of Girders and Beams supported in the walls.
c. The wooden stair case constructed in the show room has been demolished.
d. That the toilet measuring 10 ft. X 5 ft. has been demolished and the space of the toilet merged with the show room.
e. The kitchen constructed under the AC Sheets has been E. No. 08/08 Page no. 21 of 36 demolished and also the back courtyard which was covered with AC Sheets has been converted into open space as it was originally let out.
6. That thus under the present circumstances all the alleged addition and alteration existing in the tenanted premises have been removed and after extensive repairs and replastering and reflooring the show room has been brought back in its original shape in which it was taken on rent.
7. That under the such circumstances it has become necessary to amend the written statement and add the following paragraph after paragraph No.18 (a) (xi) as 18 (a) (xii) as fallows (sic): 18 (a) (xii). That in addition to or in the alternative, after 29th July, 2003, after seeking permission from the petitioner, the respondent has removed all the addition and alteration, stated above in paras (a) to (e) and as alleged by the petitioner in the petition and has brought the show room back to its original shape in which it was let out by the petitioner in 1973. The further renovation which is being done is only of wooden work and no structural addition or alteration is being done.
18 (a) (xiii). That under these circumstances no cause of action survives in the present petition as on today no alleged addition or alteration is existing on the spot and as such the present petition does not survive and is liable to be dismissed.
8. That the respondents further wants to add the following in prayer clause after the words ................ caused to the premises: "or in the alternative as on today no addition and alteration, as alleged exists on the premises therefore" the petition is not maintainable and is liable to be dismissed with costs.
9. That the above amendment have arisen only during the pendency of this petition and more particularly after 30th July, 2003 when the petitioner was gracious enough to grant the respondent required permission to renovate the showroom.
10. That the present amendment in very material and goes to the root of the case.
It is, therefore, prayed that this Hon'ble Court may be pleased to allow the respondent to carry out the above said amendments in the written statement.
Any other and further order which this Hon'ble Court my (sic) deem fit and proper may also be passed in favour of the respondents and against the petitioners.
E. No. 08/08 Page no. 22 of 36
Sd
RESPONDENTS
Through
Delhi Sd
Dated 28.8.2002 MANBIR SINGH & CO.
Advocates
1 Pusa Road,
New Delhi 110005
25721028, 25727409,
23958912
24. From the testimony of PW1 Mr. S.L. Dhir, report Ex. PW1/1, site plan Ex. PW1/2, the pleadings of the parties and the statements made on behalf of the respondent in the application under Order VI Rule 17 of CPC it has been proved that the respondent has constructed a room in the main hall of the show room which corresponds with the construction at point A in site plan Ex. PW1/2 proved during the testimony of PW1 Mr. S.L. Dhir.
25. From the testimony of PW1 Mr. Mr. S.L. Dhir, report Ex. PW1/1, site plan Ex. PW1/2, the pleadings of the parties and the statements made on behalf of the respondent in the application under Order VI Rule 17 of CPC it has also been proved that digging work was done by the respondent in the portion pointed out at point A in Ex. PW1/2 and thus the floor of the premises was lowered by cutting plinth for about two feet.
26. From the testimony of PW1 Mr. S.L. Dhir, report Ex. PW1/1, site plan Ex. PW1/2, the pleadings of the parties and the statements made on behalf of the respondent in the application under Order VI Rule 17 of CPC E. No. 08/08 Page no. 23 of 36 it has also been proved that the respondent has extended the mezzanine inside the premises and supporting the same on girder as shown in site plan Ex. PW1/2 and referred to in report Ex. PW1/1.
27. From the testimony of PW1 Mr. Mr. S.L. Dhir, report Ex. PW1/1, site plan Ex. PW1/2, the pleadings of the parties and the statements made on behalf of the respondent in the application under Order VI Rule 17 of CPC it has also been proved that the respondent has constructed a wooden staircase in the premises as shown at point I in site plan Ex. PW1/2 and the said staircase has been used to reach newly added mezzanine.
28. From the testimony of PW1 Mr. S.L. Dhir, report Ex. PW1/1, site plan Ex. PW1/2, the pleadings of the parties and the statements made on behalf of the respondent in the application under Order VI Rule 17 of CPC it has also been proved that the respondent has constructed a toilet at the premises at the place shown by letter J in plan Ex. PW1/2.
29. From the testimony of PW1 Mr. S.L. Dhir, report Ex. PW1/1, site plan Ex. PW1/2, the pleadings of the parties and the statements made on behalf of the respondent in the application under Order VI Rule 17 of CPC it has also been proved that the respondent had covered the open space behind the showroom by giving it a shape of room as shown at points L and M in plan Ex. PW1/2.
30. From the testimony of PW1 Mr. S.L. Dhir, report Ex. PW1/1, site plan Ex. PW1/2, the pleadings of the parties and the statements made on E. No. 08/08 Page no. 24 of 36 behalf of the respondent in the application under Order VI Rule 17 of CPC it has also been proved that in the back of the premises at place 'N' in the site plan Ex. PW1/2 the respondent has constructed a WC of the size 3'6''x beyond open passage of about size 4'0'' x 8'0''.
31. From the testimony of PW1 Mr. Mr. S.L. Dhir, report Ex. PW1/1, site plan Ex. PW1/2, the pleadings of the parties and the statements made on behalf of the respondent in the application under Order VI Rule 17 of CPC it has also been proved that front one side window and a door have been covered into two show windows and a door in the centre.
32. The more important question which requires determination by this court is: whether such construction or modification by the respondent at the premises amounts to causing substantial damage to the premises?.
33. As I have already observed save the room shown at point N in plan Ex. PW1/2 the premises were let out by the applicants to the respondent by way of a lease deed Ex. PW2/1. At the time of letting out the premises it broadly comprised of two parts namely, 'showroom' and open space measuring 275 Sq. Feet behind the said showroom situated at 8284, Janpath, New Delhi.
34. From the testimony of PW2 Mr. S. K. Gupta it has been proved that when the premises were let out to the respondent the same were in the condition as shown in Ex. PW2/2 and it was not separated from the premises bearing no.82, Janpath. As per the testimony of PW2 Mr. S. K. E. No. 08/08 Page no. 25 of 36 Gupta after letting out of the premises the portion comprised in property no. 82 was separated from the portion comprised in property no.84. From the testimony of PW2 Mr. S. K. Gupta it has also been proved at the time of letting out the premises to the respondent the access to the mezzanine floor of the premises no.82 and 84 was from the premises no.82 where a staircase was erected on the corner at south west side of the premises no.82. As per the testimony of PW2 Mr. S. K. Gupta after the lease of the premises and on partition of properties no. 82 and 84, the passage to premises no. 84 was got blocked. During his examination PW2 Mr. S.K. Gupta refused to answer specifically if after the division of the properties no. 82 and 84 to approach the mezzanine floor of premises no. 84, there as no alternative but to construct a separate staircase.
35. The nature of constructions and modifications made by the respondent are to be analysed from the angle whether such modifications or constructions have been made in the portion referred to as showroom in Ex. PW2/1 or in the portion referred to as open space behind the showroom. If the things are looked at from this angle then following constructions and modifications, as found by this court, have been made by the respondent or by its consent in the showroom portion of the premises, namely,
(a) construction of room which corresponds with the construction at point A in site plan Ex. PW1/2 proved during the testimony of PW1 Mr. S. L. Dhir.
(b) digging work and lowering of the floor of a portion of the premises E. No. 08/08 Page no. 26 of 36 caused by the respondent at the portion pointed out at point A in Ex. PW1/2.
(c) extension of the mezzanine inside the premises and supporting the same on girder as shown in site plan Ex. PW1/2 and referred to in Ex. PW1/1.
(d) construction of a wooden staircase in the premises as shown at point I in site plan Ex. PW1/2 to reach newly added mezzanine.
(e) construction of a toilet at the premises at the place shown by letter J in plan Ex. PW1/2.
(f) conversion of front one side window and a door into two show windows and a door in the centre.
36. And following constructions and modifications have been made by the respondent or by its consent in the portion referred to as open space in Ex. PW2/1 behind the showroom, namely,
(a) covering the open space behind the showroom by giving it a shape of room as shown at points L and M in plan Ex. PW1/2.
(b) construction back of the premises at place 'N' in the site plan Ex. PW1/2 the respondent has constructed a WC of the size 3'6''x beyond open passage of about size 4'0'' x 8'0''.
37. From the lease deed Ex.PW2/1 it has been established that the main premises comprised of only the showroom; and the open space could have been used by the respondent but no structure was erected thereupon. As per the definition of "premises" contained in section 2 (i) of Act 59 of 1958 the term 'premises' means any building or part of a building which is, E. No. 08/08 Page no. 27 of 36 or is intended to be, let separately for use as a residence or for commercial use or for any other purpose and includes, the garden, grounds and out houses, if any, appertaining to such building or part of the building. From the definition of 'premises' contained in section 2 (i) of Act 59 of 1958 it becomes obvious that any open space appertaining to any building cannot be treated as part of the premises.
38. In the present case insofar as the construction of room and kitchen etc. by the respondent at the portion shown at points K, L and M in site plan Ex. PW1/2 is concerned, such construction was raised behind the showroom portion of the premises and at the open space which as per the definition of term 'premises' did not fall within such definition. Such construction on the part of the respondent may amount to violation of the lease deed or unauthorised construction but per se is not detrimental to the main premises i.e. the showroom portion of the premises. The court is satisfied that the construction by the respondent at the portion K, L and M in Ex. PW1/2 does not amount to causing substantial damage to the premises.
39. Other construction which has been raised by the respondent outside the showroom portion is at point N in Ex. PW1/2. This portion was not part of original tenancy between the parties and the WC at this point was let out to the respondent, admittedly, in the year 1981. A perusal of plan Ex. PW2/2, appended to lease deed Ex. PW2/1, reveals that a WC was already existing on the back side of the premises on the eastern side abutting a store E. No. 08/08 Page no. 28 of 36 on western side. It appears that after division of the property no. 82 and 84 the store and WC were also divided vertically and half portion of the WC on the north eastern side was let out to the respondent. Such WC on the northern side was abutting on a passage and western side abutting the store already existing at the time of letting out of the main premises. As per the report Ex. PW1/1, site plan Ex. PW1/2 and the testimony of PW1 Mr. S. L. Dhir which was further supported by the contents of the application made by the respondent under Order VI Rule 17 of CPC, the respondent having covered the open passage abutting the WC let out to it constructed another WC by covering the open passage. Such construction by the respondent, was on a distance far from the main showroom premises and in no way likely to affect the utility of the main showroom portion. The construction by the respondent at point N in Ex. PW1/2 may amount to unauthorised construction in violation of the term of lease entered into between the parties but not likely to cause any damage to the main showroom portion or the WC let out by the applicants to the respondent in the year 1981. The court is satisfied that the construction and modification by the respondent at point N have individually or in conjunction with other construction at the open space have not caused any substantial damage to the premises.
40. Now I come to the construction and modification effected by the respondent in the showroom portion of the premises.
41. First change which has been made by the respondent at the E. No. 08/08 Page no. 29 of 36 showroom portion is replacement of one door and one window by two windows and one door at the front portion of the showroom portion. It is noteworthy that while letting out the premises to the respondent the applicants in clause 12 of lease deed Ex. PW2/1 had specifically agreed that the respondent could have done renovation work at the premises including face lifting. The showroom is situated at Janpath, New Delhi where the respondent has been doing business of selling lamp sheds etc. To run such business and to attract the customers face lifting of the front portion is sine qua non. Unless and until the front portion of the shop is eye catching, the prospects of business may get reduced. In the considered opinion of the court the replacement of door and window are authorised by the applicants and such work does not in any way amount to causing substantial damage to the premises. It amounts to what the parties have termed as face lifting of the premises.
42. Other grievance of the applicants is that as reported by PW1 Mr. S. L. Dhir in his report Ex. PW1/1 the respondent has extended the mezzanine at the premises. According to the respondent the mezzanine was already existing and it was extended with the consent of the applicants.
43. A perusal of lease deed Ex. PW2/1 reveals that at the time of letting out of premises one mezzanine floor admeasuring 300 Sq. Feet was already existing at the premises; and further subject to the provisions of municipal bye laws the lessor had authorised the lessee i.e. the respondent to E. No. 08/08 Page no. 30 of 36 raise further mezzanine.
44. In the application for eviction it has been stated by the applicants that there was an old mezzanine measuring 28'9''x 10' and 15'6'' x 10'3'' and the said mezzanine was increased to 28'9'' x 25'6'' and 28' x 10'3''. As per the averments made in the application this mezzanine is at a height of 8 feet from the ground and is made of wooden planks and wooden battens mark at place B, C, D, E, F, G and H in Ex. PW1/2. It is also stated in the application that the said mezzanine was being used as an office and in the mezzanine a wall of wooden partition has also been erected for making store and to reach up to this mezzanine a wooden staircase at place mark I has also been erected. As per the averments in the application this mezzanine towards the two walls is supported by wooden beams which have been inserted into the side walls and on account of insertion of wooden beams the side walls have weaken and thus substantial damage to the building.
45. As per the report Ex. PW 5/6, relied upon by the applicants, on 17.01.1986 there was mezzanine at ground floor in the showroom portion admeasuring 30'10'' x 49'0'' out of which the objectionable area was only 30'10'' x 24'6''. Thus as per the report Ex. PW5/6 the mezzanine to the extent of 30'10'' x 24'6'' was not objectionable.
46. As per the report Ex. PW1/1 of PW1 Mr. S. L. Dhir during his visit at the premises to inspect such premises he had found old mezzanine E. No. 08/08 Page no. 31 of 36 measuring 28'9'' and 10'. It is nowhere mentioned in report Ex. PW1/1 of PW1 Mr. S. L. Dhir that besides the said mezzanine measuring 28'9'' x 10' he had observed any other mezzanine at the premises. Thus the averments made in the application by the applicants that the old mezzanine measuring 28'9'' x 10' and 15'6'' x 10'3'' existed could not be supported by the report Ex. PW1/1 and testimony of PW1 Mr. S. L. Dhir. Since as per the report Ex. PW5/6 the mezzanine beyond 30'10'' x 24'6'' was not objectionable by the local authority; and by way of lease deed Ex. PW2/1 the existing mezzanine was allowed, rather let out, and fresh mezzanine was permitted by the landlord, therefore, in the light of the evidence led by the applicants this court is satisfied that the erection of mezzanine floor has not caused any substantial damage to the premises.
47. In so far as the question of construction of the staircase at point I in Ex. PW1/2 by the respondent is concerned as I have already observed initially the premises comprised of properties no.82 and 84 which were subsequently divided and the staircase leading upto the mezzanine floor of the premises fell on the side of property no.82 and thus in these circumstances since there remained no way to lead upto the mezzanine falling on the side of property no. 84, therefore, the respondent was justified in constructing a staircase at point I or any other suitable place leading upto the mezzanine floor in the portion falling on its side. In the absence of the staircase the respondent could not have utilized the mezzanine floor E. No. 08/08 Page no. 32 of 36 otherwise authorised and permitted by the applicants. At the strength of the evidence led by the parties this court is satisfied that erection of staircase at point I in plan Ex. PW1/2 has not caused any substantial damage to the premises.
48. It has also been proved that in the showroom portion of the premises the respondent has constructed a toilet and a room. From the testimony of PW1 Mr. S. L. Dhir, his report Ex. PW1/2 and the statements made on behalf of the respondent in application under Order VI Rule 17 of CPC it has also been proved that in constructing the room shown at point A in plan Ex. PW1/2 digging work has been done by the respondent and by such digging work the original floor of the premises has been lowered to the extent of two feet and to reach that portion stairs existing at north western corner of the room are being used. It has also been proved that in lowering the floor the plinth of the building has been cut. Even otherwise such lowering of floor cannot be done without cutting the plinth of the building. This lowering of floor to the extent of two feet may not strictly be said constructing a basement as suggested by the learned counsel for the applicants but nevertheless the same is a major construction work in the original showroom portion of the building.
49. RW1 Mr. C.M. Gupta during his evidence has deposed that the floor has not been lowered and plinth has not been cut but in the face of the testimony of PW1 Mr. S.L. Dhir and his report Ex. PW1/1 his testimony E. No. 08/08 Page no. 33 of 36 does not inspire confidence of the court. Further, the testimony of RW2 Mr. Sant Bhushan Lal who in his affidavit has deposed that no damage has been caused is not reliable since from the crossexamination of RW2 Mr. Sant Bhushan Lal it has been proved that he was only an engineer in MTNL and is not an expert in the field of construction work and thus his opinion is also not reliable.
50. From the testimony of PW2 Mr. S.K. Gupta it has been proved that the building where the premises situate is very old and the same was constructed more than 60 years ago. The foundation of the building is as old as the building itself and no evidence has been led that the building was reerected. Any construction work above the plinth level of the premises may not cause any damage to the premises but in the considered opinion of the court any construction work below the plinth level, at the scale done by the respondent, can certainly cause damage to the premises. As per the testimony of PW1 Mr. S.L. Dhir and his report Ex. PW1/1 the room of the size 15'3" x 19' has been constructed by the respondent at point A in Ex. PW1/2. The portion covered by this room is substantial area. As per the testimony of PW1 Mr. S.L. Dhir and his report Ex. PW1/1 the whole portion inside the room at point A in Ex. PW1/2 has been dug about 2 feet. It appears that such work has been done by the respondent to occupy more space beneath the mezzanine and to use the mezzanine as a room. In the considered opinion of the court the erection of the room at point A in Ex.
E. No. 08/08 Page no. 34 of 36 PW1/2 and lowering its floor by two feet is certainly a damage to the premises and such damage is of a scale which can adversely affect the whole edifice of the building. The court is satisfied that the raising of room at point A in Ex. PW1/2 has caused substantial damage to the premises. Insofar as the toilet at point J in Ex. PW1/2 is concerned by way of Ex. PW2/1 the lessor had permitted the respondent to raise such construction and no exception has been taken by the local authority to such construction. The court is satisfied that the construction of toilet at point J in Ex. PW1/2 has not caused any substantial damage to the premises.
51. In view of above discussion, in the light of the evidence led by the parties, and the report Ex. PW1/1 of local commissioner Mr. S.L. Dhir, it is found by this court that by constructing room as shown at point A in Ex. PW1/2 admeasuring 15'3" x 19'0" and by lowering its floor by two feet by doing digging work below plinth level by cutting the plinth of the building, the respondent has caused or permitted to be caused substantial damage to the premises namely, property no. 84, Janpath, New Delhi as shown in site plan Ex. PW1/2. Thus, the applicants have succeeded in establishing the ground of eviction under clause (j) of proviso to subsection (1) of section 14 of Act 59 of 1958. Question of costs shall be decided subsequently.
52. Put up for proceedings under section 14 (10) of Act 59 of 1958 on 22.9.2012.
E. No. 08/08 Page no. 35 of 36
53. The Ahlmad is directed to prepare a separate file of proceedings under section 14 (10) of Act 59 of 1958 and the main file be tagged with the same.
Announced in the open court (Manoj Kumar)
on this 18th day of August, 2012 Rent Controller : New Delhi
18.08.2012
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