Delhi District Court
Petition No. : E-474/06 vs M/S Roshan Lal Khanna & Sons on 20 January, 2007
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IN THE COURT OF SHRI SANJEEV AGGARWAL :
RENT CONTROLLER : DELHI
Petition No. : E-474/06
Shri Nawal Kishore Kapoor
S/o Shri Devi Dass Kapoor
Karta and Manager of
M/s Devi Dass Kapoor,
HUF of 9015, Desh Bandhu Gupta Road,
Pahar Ganj, New Delhi. ... Petitioner
Versus
M/s Roshan Lal Khanna & Sons
Premises no.124, Second floor,
Abdul Saleem Building,
Crockery Market, Sadar Bazar,
Delhi. ... Respondent
Date of Institution : 12.1.99
Date of decision: 20.1.07.
JUDGMENT
Vide this judgment, I will dispose off the petition under Section 14(1)(a)&(j) of the Delhi Rent Control Act (hereinafter to be referred as the Act).
2. Brief facts as stated in the petition are; it is stated that the petitioner, is the landlord of the premises bearing No. 124 (2nd floor) Abdul Saleem Building, known as Kapoor Building, Crockery Market, Sadar Bazar, Delhi, which had been let out by the aforesaid HUF to the respondent/tenant for non-residential purposes in respect of the premises shown red in the site plan and as described in para 8 of the petition at a 2 monthly rent of Rs.82-50p. and that the petitioner had purchased the property vide sale deed dt. 30.3.67, and the premises in question was let out to the respondent w.e.f. 12.3.89 vide agreement dt. 12.3.89.
3. Now, the grievance of the petitioner regarding the ground under Section 14(1)(a) of Act is that the respondent is in arrears of rent w.e.f. 1.11.91 upto 31.10.93 at the rate of Rs.75/- per month and w.e.f. 1.11.93 at the rate of Rs.82-50p. per month as the rent was increased by 10% as per Section 6A of the Act vide notice dt. 10.9.93, which the respondent has neither paid nor tendered the same inspite of service of the legal demand notice.
4. The grievance of the petitioner regarding the Section 14(1)(j) of the Act is that, the respondent has caused several structural changes in the premises in the end of March, 1989 and he had also constructed the roof over the courtyard and while making the said unauthorised construction, the respondent had also damaged the walls of the kitchen and that of the verandah of the petitioner and other portions of the property adjoining to the suit property, which has shortened the life of the property and has also impaired the value and utility of the suit premises, thereby causing cracks in the same, and hence it is prayed that an eviction order be passed in favour of the petitioner and against the respondent.
5. Written statement has been filed by the respondent in which the site plan filed by the petitioner has been disputed as incorrect, and it is further submitted that the tenancy premises was taken on rent from Shri 3 N.K. Kapoor in his individual capacity and it is denied that the tenancy premises were taken on rent from Karta and Manager of M/s Devi Dass Kapoor HUF. The rate of rent is not disputed. However, the extent of tenancy has been disputed as stated above. The rent agreement dt. 12.3.89 is also not denied. Regarding the ground under Section 14(1)(a) of the Act, the reply of the respondent is of simple denial, that he has not paid the arrears of rent as stated by the petitioner in his petition. It is stated that the rent, right from the commencing of the tenancy, has been sent through the money orders as the petitioner was not issuing the rent receipts and the rent which was increased by 10% has also not been denied. It is stated that the said increased rent was also sent through money orders. Notice dt. 10.9.93 has not been denied as it is stated that the said notice was adequately replied.
6. Regarding the ground under Section 14(1)(j) of the Act, it is vehemently denied that the respondent has made any material alterations/additions in the premises. It is stated that the respondent has not caused any unauthorised construction. The respondent has also not damaged the walls of the kitchen or of the verandah or any other portion of the property adjoining to the tenanted premises, and there are no additions/alterations made by the respondent in the suit premises unauthorisedly. It is denied that the life of the property has been shortened as alleged by the petitioner or that the value and utility of the building has been decreased.
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7. Replication has been filed by the petitioner in which the averments made in the written statement have been vehemently denied and it is reiterated that the premises in question had been let out to the respondent in the capacity of HUF. The other allegations have also been denied.
8. An order under Section 15(1) of the Act was passed by the ld. Predecessor on 24.11.99 directing the respondent to pay or deposit the arrears of rent w.e.f. 1.10.99 at the rate of Rs.82-50p. per month till date within one from the date of the said order and for future period, during the trial at the said rate.
9. In between an application under Order 16 Rule 1, 1A and Section 151 CPC was moved by the respondent seeking permission to examine one witness R.L. Nagpal. Vide detailed order dt. 5.5.04, the ld. Predecessor dismissed the said application.
10. The petitioner HUF, in support of their case has examined one Vijay Prakash, Custodian clerk, Evacuee property Cell, as PW1. PW2 is Shri Anil Kmar Gupta, draftsman/architect. PW3 is the Karta of the present petitioner. In rebuttal, the respondent has examined himself as RW1. No other witness has been examined by either parties.
11. I have heard the counsel for the petitioner Shri Chaman Lal Sachdeva and counsel for the respondent Shri Bakshi Ran Singh. I have also perused the evidence and documents on record.
12. To make out a case under Section 14(1)(a) of the Act, the 5 petitioner has to prove the following ingredients :
(i) That there is a relationship of landlord and tenant between the parties
(ii) That a valid legal demand notice was duly served upon the respondent/tenant
(iii) That despite the service of the legal demand notice the respondent/tenant has neither paid nor tendered the entire arrears of legally recoverable rent.
13 My findings on the above ingredients are as under :
(i) That there is a relationship of landlord and tenant between the parties:
Relationship of landlord and tenant between the parties is disputed, as it is the case of the respondent that the premises in question was never let out by the HUF, rather by Shri N.K. Kapoor in his individual capacity. However, PW3 has categorically stated in his affidavit filed on the record in para 1 that "I am Karta and Manager of M/s Devi Dass Kapoor HUF". No question has been put in the cross examination of the said witness assailing the said positive assertion that the premises in question was never let out by the said HUF. Further PW3 has proved the copy of the judgment of Competent Authority Slum Areas, Delhi as Ex.PW3/4. It seems that the respondent had also not taken such stand before the said court. Accordingly, the respondent cannot take the plea here now, as the respondent is estopped from doing so by his conduct. Notice of demand is also seems to have been sent by one N.K. Kapoor, as Karta of M/s Devi Dass Kapoor HUF and no reply has been placed on record by the respondent regarding that, it was not so and the respondent admittedly had been sending the rent to the petitioner. Accordingly, the 6 respondent cannot take plea to the contrary which he had never taken before the slum Authority or during the cross examination of the witness PW3. In view of the aforesaid circumstances, I hold that there is a relationship of landlord and tenant between the petitioner and the respondent.
(ii) That a valid legal demand notice was duly served upon the respondent/tenant
14. Regarding the service of demand notice, the respondent has admitted that the notice dt. 10.9.03 has been adequately replied. As the petitioner has proved the copy of the said notice Ex.AW3/1, the petitioner has been able to prove the service of the legal demand notice.
(iii) That despite the service of the legal demand notice the respondent/tenant has neither paid nor tendered the entire arrears of legally recoverable rent.
15. Regarding the arrears of rent, it is not the case of the respondent in his pleadings and evidence that the respondent had sent the arrears of rent at the rate of Rs.75/- p.m. w.e.f. 1.11.91 to 31.10.93 and w.e.f. 1.11.93 to 31.12.98 at the rate of Rs.82-50p. per month, despite the legal demand notice Ex.AW3/1. The defence of the respondent in his written statement is of simple denial, that the rent for the said period had been sent to the petitioner by money orders as the petitioner was not issuing the rent receipts. However, in the affidavit of RW1, he has not proved any money order receipts by virtue of which the rent for the aforesaid period had been sent to the petitioner and in his cross examination, RW1 admitted that "I have no receipt or acknowledgment 7 of the hand of the petitioner about the payment or tender of any rent to the petitioner within two months from the date of the service of the notice dt. 10.9.93." He further admitted that "I have no document with me at present to show that I tendered or paid the rent demanded in the notice of demand within two months from receipt of the notice of demand". In view of the aforesaid clear cut admissions made by the respondent RW1 in his cross examination that, he does not have any proof of payment of rent by money orders to the petitioner, the respondent has categorically admitted that he is a defaulter in payment of rent and that he has never tendered nor paid the entire arrears of rent within two months of the service of the legal demand notice Ex.AW3/1. Hence, the petitioner has been able to make out a case under Section 14(1)(a) of the Act. Section 14(1)(j) of DRC Act :
16. Regarding the petition under Section 14(1)(j) of the Act, it is alleged by the petitioner in his pleadings and evidence that respondent has caused several structural changes in the premises in question in the end of March, 1989 and he had constructed the roof over the courtyard and while making the said unauthorised construction, the respondent had also damaged the walls of the kitchen and of the verandah of the petitioner, and other portions of the property adjoining to the premises in suit and due to the said unauthorised construction, the additions/alterations made by the respondent in the suit premises, the value and utility of the suit premises 8 has been impaired resulting into the cracks in the building.
17. On the other hand, the case of the respondent in his defence is that, the respondent has not raised any unauthorised construction and he has also not damaged the walls of the kitchen or of the verandah or of any other portion of the property adjoining to the tenanted premises and there is no additions/alterations made by the respondent in the suit premises as alleged, nor the value and utility of the tenancy premises has been impaired. PW3 has reiterated the contents of the pleadings in his affidavit, and petitioner HUF has also produced one witness Shri Anil Kumar Gupta, Architect who is most material witness regarding the causing of the substantial damages as alleged by the petitioner. The said witness has stated that he had inspected the premises in dispute on 5.5.00 in presence of the respondent and found certain damages in the property as per his report Ex.PW2/1. He has also shown in his report the portion which has been unauthorisedly covered, in the site plan and because of making of the said construction by covering the space, the damages has been caused to suit premises. The veracity of the said witness is highly doubtful, as the said witness in his cross examination has stated that "I do not remember as to how many entrances are there to have access to the suit property. I do not remember the size of the entrance through which I had entered into the premises. I do not remember as to whether the stair case was cemented one, spiral or wooden. At the time of inspection, I had met 2/3 peoples but I did not ask their names. I did 9 not obtain signatures of the tenant on my any of the proceedings at the time of inspection." He further stated that "I had come to know about the unauthorised construction as the open courtyard had been covered which was very much apparent to the naked eyes. I had not seen the sanctioned plan. It is correct that I had not compared the site plan with the previously sanctioned site plan." He further stated that "I cannot say as to when this unauthorised construction was raised. I cannot say whether such unauthorised construction was raised one year back, two years back or five years back before my visit. It is wrong to suggest that there was no unauthorised construction in the suit premises."
18. The aforesaid testimony clearly points out that the said witness PW2 is not trustworthy and his report cannot be relied upon as he could not say during the cross examination, whether the said unauthorised construction was raised one year back, two years back or five years back. In these circumstances, it is highly doubtful that he had ever visited the suit premises, as he had stated in his cross examination that he does not remember how many entrances are there to have access to the suit premises, and he also does not remember whether the stair case was cemented one, spiral or wooden and he also did not obtain the signatures of any person on the spot. He did not compare the alleged construction with the sanctioned site plan. No rough draft of the proceedings which were carried out by the said witness PW2 at the spot, has also been 10 annexed with his report Ex.PW2/1. Accordingly, it is highly doubtful whether the said witness had ever visited the site. Therefore, the said report of the architect relied upon by the petitioner cannot be said to have any evidentiary value.
19. PW3 has further stated in his cross examination that "He did not make any complaint to the police and Municipal Corporation about the said construction by the respondent and he further stated that rent agreement was executed in the year 1989. He has stated that it is wrong to suggest that the site plan was prepared alongwith the agreement dt. 12.3.89. It is wrong to suggest that the site plan was not prepared earlier at the time of execution of agreement, and the same has now been prepared at the time of filing of present eviction petition. He voluntarily deposed that one site plan was got prepared at the time of execution of agreement and second one was prepared after the alleged unauthorised construction took place on the premises in dispute. He also stated in his cross examination "there was a site plan annexed with the rent agreement. Ex.AW3/2 is the same site plan". In view of the aforesaid deposition of PW3 in his cross examination that the said site plan Ex.AW3/2 was the same site plan which was annexed with the rent agreement Ex.AW3/2, it seems that the petitioner has admitted that no construction has been raised by the respondent in the demised premises, as the said site plan as per the petitioner depicts the present illegal construction done by the respondent at the demised premises, whereas PW3 in his cross examination stated that 11 same site plan was annexed with the rent agreement, meaning thereby that the said construction was already existing at the time of commencement of the tenancy.
20. Further, though the petitioner has relied upon the cross examination of RW1 "it is correct that the courtyard has been covered and it is also incorrect that there has been made a chajja on the second floor". However, from the tone and tenor of the cross examination of the above witness, as it is evident from reading of the para in question in whole, it is clear that the respondent has not made any admissions in the said para, as the in the same para the respondent has stated as under: that "it is incorrect to suggest that I have made structural changes in the suit premises. It is incorrect to suggest that the premises are not in the same condition as it were let out. It is correct that the courtyard has been covered and it is also incorrect that there has been made a chajja on the second floor." From the reading of whole para, it seems that there is typographical error in the said passage which is clearly evident from the reading of the said para in question, as RW1 in the entire para has denied that he had made any structural changes. He denied the suggestion that he made chajja in question. He has also only made repairs, therefore, the said lines that "it is correct that the courtyard has been covered" seems to have been wrongly typed as the same goes against the tone and tenor of the entire passage in paragraph reproduced above, as in his further cross examination RW1 has categorically stated that "it is incorrect that the 12 compound was covered by me and the chajja was made by me" and he further denied the suggestion that "it is correct that there is no changes and the coverage of the chajja was made in the year 1989." Therefore, the evidence of RW1 has to be read as a whole and not in a piecemeal basis and from the reading of the entire paragraph, it seems that the respondent has nowhere admitted that he had covered the courtyard. In any case, the onus to prove that the respondent had caused substantial damage to the property as alleged by the petitioner, was upon the petitioner. The petitioner has not lead any cogent evidence on record to prove the same, for the detailed reason already discussed in the foregoing paragraphs. Accordingly, the petitioner has failed to make out a case under Section 14(1)(j) of the Act.
21. The net result of the aforesaid discussion is that as far as the ground under Section 14(1)(a) of the Act is concerned, petition is held successful, whereas the eviction petition on the ground under Section 14(1)(j) of the Act stand dismissed.
Now, to come up for compliance of the order under Section 15(1) of DRC Act for ascertaining the entitlement of the respondent viz-a- viz benefit of Section 14(2) of the DRC Act, for which the Ahlmad shall prepare a misc. file for 20.2.07. Report of the Naib Nazir be also called for the said date. This file be consigned to record room.
Announced in open court (SANJEEV AGGARWAL)
on 20.1.07. Rent Controller : Delhi.
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20.1.07
Present : None.
Vide separate detailed judgment of even date, the eviction petition is held successful on the ground under Section 14(1)(a) of the DRC Act. However, the petition has been dismissed as far as the ground under Section 14(1)(j) of DRC Act is concerned.
Now, to come up for compliance of the order under Section 15(1) of DRC Act for ascertaining the entitlement of the respondent viz-a- viz benefit of Section 14(2) of the DRC Act, for which the Ahlmad shall prepare a misc. file for 20.2.07. Report of the Naib Nazir be also called for the said date. This file be consigned to record room.
(SANJEEV AGGARWAL) Rent Controller : Delhi.