Delhi District Court
Smt. Asha Khanna vs Smt. Veena Trikha on 11 December, 2018
IN THE COURT OF SH. AJAY NAGAR, COMMERCIAL CIVIL
JUDGE-CUM-ADDITIONAL RENT CONTROLLER (WEST),
TIS HAZARI COURTS, DELHI.
ARC No: 25307/2016
Smt. Asha Khanna
W/o Sh. Dev Khanna
R/o H-80, 1st floor,
Kirti Nagar, New Delhi
Through her attorney
Sh. Pradeep Kr. Dewan
....Petitioner
VERSUS
Smt. Veena Trikha
W/o Sh. Ashok Kumar Trikha
R/o A-6A, DDA flats,
Near Shivaji Enclave,
Raghubir Nagar, Delhi-110027.
.... Respondent
Date of Filing : 29.05.2012
Date of Judgment : 11.12.2018
JUDGMENT
1. Brief facts of the present case are that on 29.05.2012, the petitioner filed a petition Under Section 14 (1) (a),(c),(d), (e),
(h), (j) & (k) of the Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act") praying to this court to pass an eviction order in favour of the petitioner and against respondent in respect of premises bearing No. A-6A, DDA Flats, Raghubir Nagar, Delhi-110027 as shown in the site plan in red colour annexed with the eviction petition. (hereinafter referred to as "tenanted premises").
ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -2-
2. As per the claim of the petitioner, she is the owner of the tenanted premises and the respondent was let out in the year 2004 at the rate of Rs. 3650/- per month by her lawful attorney Sh. Pradeep Kumar Dewan. That subsequently, the rent was reduced to Rs. 1800/- per month after execution of a Rent Agreement dated 17.10.2016 executed between Sh. Pradeep Kr. Dewan and the respondent. That the respondent has not paid the rent since July 2010. That a legal notice dated 05.04.2012 was given to the respondent but all in vain.
It is further submitted that the tenanted premises was given by the petitioner for the residential purposes, but the respondent is using it for the commercial purposes. The respondent is running marriage bureau from the tenanted premises.
It is further submitted that afore-mentioned use of this flat is also violation of the local laws which prohibits the commercial use of a residential unit.
That the respondent has purchased the adjacent flat bearing No. A-7A, DDA Flats, Raghubir Nagar, Delhi and shifted her accommodation there.
That the respondent has completely altered the original configuration of the rooms, kitchen and toilet without consent of the landlord.
That this is a DDA Flat and as per the terms and conditions of the lease deed and conveyance deed, no addition or alteration can be done in the said flat and this kind of unauthorised construction can lead to cancellation of allotment by DDA.
ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -3-
3. On the other hand, written statement was filed by the respondent inter-alia stating that the petitioner is not the owner of the tenanted premises. Instead Sh. Pradeep Kr. Dewan is the owner of the tenanted premises. It is admitted by the respondent that she is the lawful tenant in the tenanted premises which was taken from Sh. Pradeep Kr. Dewan in the year 2004 and presently the rate of rent is Rs. 1800/- per month. It is also claimed that Sh. Pradeep Kr. Dewan offered to dispose of the tenanted premises to the respondent and respondent agreed to purchase it but Sh. Pradeep Kr. Dewan backed out from the said deal. It is further claimed that her signatures were taken on the rent agreement forcibly. That respondent has paid rent upto September 2011. That the respondent is using the tenanted premises for her residence only and denied that she is using the tenanted premises for running a marriage bureau. That said flat no. A-7A, is not owned by the replying respondent. Even the summons of the present petition has been served on the tenanted premises only. It is admitted that the respondent was served with the alleged notice dated 05.04.2012. Lastly, it is prayed by the respondent to dismiss the eviction petition filed by the petitioner.
4. Thereafter the petitioner filed the replication reiterating and reasserting the facts as stated in the petition.
5. Thereafter evidence was led by the petitioner as well as by the respondent.
ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -4-
6. I have heard the arguments at length advanced by Ld. Counsel for the petitioner as well as respondent.
7. Section 14 (1) (a) DRC Act:-
It is expedient to reproduce the relevant provision of Delhi Rent Control Act so that position may be crystal clear:-
"Section-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 court or any 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 recovery of possession of the premises on one or more of the following grounds only, namely:-
(a) that the tenant has neither paid nor tendered the whole arrears of the rent legally recoverable from him within two months of the day on which a notice of demand for the arrears of rent has been served of him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882 (4 of 1882)."
As such, the following are the ingredients of section 14 (1) proviso (a):-
(i) There should be a relationship of landlord and tenant between the parties.
(ii) There should be a non-payment or tendering of whole arrears of legally recoverable rent within two months of service of legal notice upon the respondent given by the petitioner.
8. Let us discuss the ingredients of Sec. 14(1)(a) D.R.C. ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -5- Act:-
9. It is expedient to reproduce the case law which are as under:-
In case titled as Jiwan Lal Vs. Gurdial Kaur & Ors. 1995 RLR 162 a Bench of Hon'ble High Court of Delhi while dealing with the concept of ownership in a pending eviction petition had noted as follows:
"There is a tendency on the part of tenants to deny ownership in cases. To test the substance of such a plea on the part of the tenants the Courts have insisted that they should state who else is the owner of the premises if not the petitioner. In the present case it is not said as to who else is the owner. Further these cases are not title cases involving disputes of title to the property. Ownership is not to be proved in absolute terms. The respondent does not claim the owner of the premises."
Further, in the case titled as Smt. Shanti Sharma & Ors. Vs Smt Ved Prabha & ors 1987 AIR 2028, the Hon'ble Supreme Court observed :-
"That the meaning of term 'owner' is vis a vis the tenant i.e. the owner should be something more than the tenant."
(i). RELATIONSHIP OF LANDLORD AND TENANT BETWEEN THE PARTIES:-
10. Perusal of record shows that the petitioner herself claims ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -6- owner of the tenanted premises and further claims that the tenanted premises were let out in the year 2004 at Rs. 3650/- per month to the respondent by her lawful attorney Sh. Pradeep Kr. Dewan. As per the claim, the rent was reduced to Rs. 1800/- per month from Rs. 3650/- after execution of a rent agreement between Sh. Pradeep Kr. Dewan and respondent. On the contrary, the respondent has disputed the ownership of petitioner on the ground that it is Sh. Pradeep Kr. Dewan who is the owner of the tenanted premises.
Perusal of record shows that the respondent has admitted the execution of rent agreement Ex. PW-1/6 between herself and Sh. Pradeep Kr. Dewan but she has contended that the signature thereon were taken forcibly. Perusal of record further shows that the respondent has admitted the relationship of landlord and tenant between herself and Sh. Pradeep Kr. Dewan but she has not admitted the relationship of landlord and tenant between herself and the petitioner. On the other hand, petitioner has also claimed that the respondent was let out in the year 2004 for her lawful attorney Sh. Pradeep Kr. Dewan. As such, this court has to determine whether Sh. Pradeep Kr. Dewan is the lawful attorney of the petitioner or not.
I have carefully gone through the record which shows that petitioner has placed on record registered GPA Ex. PW-1/8 and the GPA dated 21.12.2005 Ex. PW-1/1 in favour of Sh. Pradeep Kr. Dewan giving him inter-alia authority to deal with the tenanted premises.
Persual of record further shows that the rent agreement between the respondent and Sh. Pradeep Kr. Dewan was ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -7- executed on 17.10.2006 and such attorney Ex. PW-1/1 was executed on 21.10.2005. I have also gone through the material on record which shows that Sh. Pradeep Kr. Dewan is the attorney of the petitioner regarding the tenanted premises. Moreover, during the cross examination, RW-1/respondent has admitted the execution of rent agreement Ex. PW-1/6. Furthermore, the respondent has not placed on record any cogent and convincing material on record which shows that Sh. Pradeep Kr. Dewan is the owner of the tenanted premises or Sh. Pradeep Kr. Dewan is the landlord of the tenanted premises in independent capacity.
As such, in view of discussion and material on record, it is proved that there exists relationship of landlord and tenant between the petitioner and respondent.
(ii) There should be a non-payment or tendering of whole arrears of legally recoverable rent within two months of service of legal notice upon the respondent given by the petitioner.
Service of Legal Demand Notice:-
11. Perusal of Section 14 (1) (a) DRC Act clearly shows that before initiating the eviction proceeding before the Rent Controller under DRC Act, the landlord has to serve the legal notice demanding the payment of arrears of rent. And if the tenant does not pay or tender the rent within two months of service of such notice, the landlord becomes entitled to file ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -8- eviction proceeding under section 14 (1) (a) of D.R.C Act.
12. It is pertinent to reproduce the section 27 of General clauses Act which is as under :-
Section-27--Meaning of service by post--where any central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
In the case titled as K. Bhaskaran vs sankaran vaidhyan Balan 1999 A.I.R SC 3762, the Hon'ble supreme court observed :-
"The principle incorporated in section 27 can profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service."
13. Perusal of record shows that the petitioner has claimed to have given a legal notice dated 05.04.2012 Ex. PW-1/5 to the respondent but on the other hand, the respondent has denied to have received such legal notice.
Perusal of the record further shows that the respondent has admitted the service of legal notice dated 05.04.2012 in her written statement. As such, it is proved that legal notice as alleged by the petitioner U/Sec. 14(1)(a) was served upon the ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -9- respondent.
Non-payment of rent:-
14. It is well settled law that when the petitioner files the petition under section 14(1) (a) of D.R.C Act for non-payment of rent, the onus is always upon the respondent /tenant to prove that he had paid the rent and there was no due against him at the time of service of legal demand notice served by the petitioner on the respondent/tenant.
15. Perusal of record shows that the petitioner has claimed that the respondent has not paid or tendered rent from July 2010 @ Rs. 1980/- per month. On the other hand, the respondent has herself admitted in her cross examination that she has not filed any document in respect of the depositing the rent. As such, material of record clearly shows that the respondent has been unable to prove that she has paid the rent as alleged by the petitioner.
As such, it is proved on record that the respondent has not paid or tendered or deposited the arrears of rent within stipulated period of time.
As such, the ingredients of section 14(1)(a) D.R.C. Act are satisfied.
Section 14 (1)(c) D.R.C. Act:-
16. It is expedient to reproduce Section 14(1)(c) D.R.C. Act to comprehend the provisions of law which is as under:-
ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -10- "Section-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 court or any 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 recovery of possession of the premises on one or more of the following grounds only, namely:-
(c) that the tenant has used the premises for a purpose other than that for which they were let--
(i) if the premises have been let on or after the 9th day of June, 1952, without obtaining the consent in writing of the landlord; or
(ii) if the premises have been let before the said date without obtaining his consent;"
As such, the following essential conditions are to be fulfilled for getting the eviction order under this clause :-
i) The user of premises by the tenant for the purpose other than for which it was let out.
ii) No consent in writing has been obtained from the landlord by the tenant before such misuse.
It is well settled that the onus of proving the purpose of letting-out is on the landlord. Such purpose of letting out may be ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -11- proved by written documents and this is the best evidence to establish such fact. But if such written documents are not available, such fact may be ascertained from circumstances. Rent agreement is the best evidence to establish the purpose of the letting out.
17. It is pertinent to mention that section 14 (5) of Delhi Rent Act provides as under :-
"(5) No application for the recovery of possession of any premises shall lie under sub-section (I) on the ground specified in clause (c) of the proviso thereto, unless the landlord has given to the tenant a notice in the prescribed manner requiring him to stop the misuse of the premises and the tenant has refused or failed to comply with such requirement within one month of the date of service of the notice; and no order for eviction against the tenant shall be made In such a case, unless the Controller is satisfied that the misuse of the premises is of such a nature that it is a public nuisance or that it causes damage to the premises or is otherwise detrimental to the interests of the landlord."
As such, the provision of law i.e. section 14(5) clearly lays down that the no application for recovery of possession of any premises shall lie under section 14(1)(c) unless the landlord gives the tenant a notice requiring him to stop the misuse of ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -12- premises. It is only after when the tenant does not comply with such requirements within one month of the service of such notice, the landlord becomes entitled to file the eviction petition under section 14(1) (c) of D.R.C. Act.
Moreover, the Controller should be satisfied that misuse of the premises is creating public nuisance or causing damage to the premises or detrimental to the interest of landlord.
30. Now the following conditions are to be considered:-
(i). Firstly, whether there was change of user or not.
(ii). Secondly, whether any consent in writing obtained from the landlord.
(iii). Thirdly, whether such change of user is causing public nuisance or damaging the premises or detrimental to interest of landlord.
18. Perusal of the record shows that the petitioner has claimed that the respondent is using the tenanted premises for commercial purpose but it was let out for residential purposes only. On the other hand, the respondent has disputed this fact. I have also gone through the rent agreement Ex. PW-1/6 which does not mention the use of such tenanted premises. As such, the rent agreement is unable to prove the fact that it was used for residential purposes or commercial purposes or mixed purposes.
I have also gone through the material on record and the petition which shows that the petitioner has nowhere mentioned in the petition that the commercial use by the respondent is that ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -13- such change of user is causing public nuisance or damaging the premises or detrimental to interest of landlord. Moreover, perusal of record manifestly shows that the petitioner has not been able to prove that the tenanted premises was let out only for the purposes of residential purpose.
19. As such, the petitioner has not been able to prove the ingredients of Sec. 14(1)(c) and 14(5) of D.R.C. Act.
20. SECTION 14(1)(h) OF D.R.C. Act:-
(h)."That the tenant has, whether before or after the commencement of this Act, acquired vacant possession of, or been allotted, a residence."
INGREDIENTS:-
(i). The tenanted premises should have been let out for residential purpose only.
(ii). The Tenant has acquired a vacant possession of or been allotted, a residence.
21. It is expedient to discuss certain case law which are as under:-
Prakash Wati Bali vs Manish Dewan 1996 RLR 369; in which it was observed that:-
"(5) In the case of Indra Shanna (supra) it was held that the legal heirs inherited the tenancy rights as co-
tenants and not as joint tenants. They have unity of ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -14- possession but no unity of title. The order of eviction against one tenant is not binding against other co-tenants. In Mohd. Azeem (supra) the Hon'ble Supreme Court has held that "where the original tenant died and one of his sons built a house in the same city and moved to it, the tenancy of other sons, widow and daughter of the deceased tenant did not terminate and they continued to be the tenants in their own rights being covered by the definition of tenant." Similarly, it was held in the case of Textile Association (India) Bombay Unit (supra) that "an ex parte decree obtained against mother and son was not binding on one of the sons who was not imp leaded."
In the case titled as Nihal Singh vs Dalip Singh Lamba , 1994 RLR 468; it was observed that:-
" (11) I do not find any merit in the contention of learned counsel of the tenant that since the wife of the tenant had already sold the DDA flat before the application for eviction was filed by the landlord, the tenant was not liable to be evicted. The Supreme Court in the case of Smt. Mohini Bhadwar (supra) has clearly held that the fact that the tenant lost possession on the date when the eviction petition was filed would not protect the tenant against Section 14(l)(h) of the Act. The judgment of this court in the case of Gian Singh (supra) will not be of any assistance to the tenant in view of the law laid down by the Supreme Court in the case of Smt. Mohini Bhadwar (supra). (12) I do not find any merit also in the contention urged by the learned counsel for the tenant that the landlord was not quick in taking action against the tenant after the accrual of cause of action. Nihal Singh vs Dalip Singh Lamba on 8 August, 1994 "The landlord in his statement has clearly stated that he came to know of Pitampura residence of the tenant in the year 1988.
Admittedly, the eviction petition was filed by him on 31st January, 1989. Thus there was no delay on the part of the landlord in filing the eviction petition. The judgment of the Supreme Court in the 'Ganpat Ram Sharma's (supra) case is, therefore, not of any assistance to the tenant in the present case."
In another case law titled as Delhi Jal Board vs Surendra P. Malik , 2003 (68) DRJ 284; it was observed that:-
"All it claims is that parties had intended the Lease to continue which was inferable from the rent bills raised ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -15- by Respondent and the rent amount received by him. The question that arises is whether mere receipt of rent by respondent or his predecessor in interest by itself could continue the tenancy which had otherwise expired by efflux of time or re-create it so as to require determination by service of notice under Section 106 of TPA. Delhi Jal Board vs Surendra P. Malik on 24 March, 2003 12. It is no longer a grey area that where a tenancy had otherwise expired by efflux of time but the tenant continued in possession of the premises, mere acceptance of rent by the landlord could neither renew the tenancy nor create a new one. That is so because such subsequent occupation of premises was not in pursuance of any contract, express or implied between the parties. It could at best be by virtue of the protection granted by a statute like Delhi Rent Control Act so long the tenancy fell within its purview but once the tenancy was out of its protection shield, it was not required to be determined by notice under Section 106 of TPA as it stood already determined by efflux of time under Section 111 of that Act. We find support for this in the Supreme Court judgment in G.D. Murarka's case:-
"Where a contractual tenancy to which the rent control legislation applied has expired by efflux of time or by determination by notice to quit and the tenancy continues in possession of the premises by virtue of statutory protection, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy."
In case titled as Ganpat Ram Sharma & Ors. vs Smt. Gayatri Devi, 1987 SCR (3) 539; it was observed that:-
"It is well-settled that time begins to run from the date of the knowledge. See in this connection the decision of Harbans Singh and another v. Custodian of Evacuee Property 'P' Block and others, A. I. R. 1970 Delhi 82 though that was a case under a different statute and dealt with a different article. See also Ujagar Singh v. Likha Singh and another, A.I.R. 1941 Allahabad 28 at page 30. The Division Bench of the Punjab and Haryana High Court in Somdass (deceased). v Rikhu Dev Chela Bawa Har Jagdass Narokari, Punjab Law Re- porter Vol. 85., 184 held that in a suit for possession under Article 113 of the Limitation Act, material date is one on which the right to sue for possession arises."
In another case titled as Vardesh Chander Chanana vs ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -16- Prem Nath And Ors., ILR 1981 Delhi 164; it was observed that:-
"The purpose of this provision is not to protect tenant if he has legally acquired another residence as of right. A tenant acquires vacant possession of a residence, if he has a right to move in the premises legally acquired by him and lying vacant. In other words, if vacant possession of the premises is available to a tenant and he has a right to occupy the same, it would mean that he has acquired vacant possession of the residence within the meaning of clause (h). Whether the acquired premises is suitable or not is not the requirement of law for the passing of an order of eviction. Thus it seems that if a tenant has a legal right to occupy the premises which he has inherited and which were lying vacant at the time of inheritance or thereafter, he is not entitled to protection under the Act. But if the tenant has no present right of moving into the residential house inherited by him though vacant, it cannot be said that such a tenant has acquired vacant possession of the premises."
In Avinash Kaur vs Beli Ram , ILR 1970 Delhi 651; it was observed that :-
" The entire setting of clause (h) shows that it is the events happening during the tenancy which can provide a cause of action for the eviction of the tenant. We have no doubt in our mind that in clause (h) also the legislature intended that it is only act of building, acquisition of vacant possession or, allotment of a residence during the continuance of tenancy which can justify eviction of tenant."
It was further observed that :-
"Keeping in view the above principles in view, we are of the opinion that only reasonable construction which can be placed upon clause (h) is that it applies to those cases where the tenants builds, acquires vacant possession of, or is allotted a residence after the commencement of tenancy....."
We would therefore hold that a tenant would be liable to be evicted under the above clause only if during the tenancy he builds, acquires vacant possession of, or is allotted a residence."
ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -17- In another case titled as Indian Cable Company Limited vs Prem Chandra Sharma , 1989 RLR 495; it was observed that:-
"Clause (h) manifests intention of the legislature to forfeit statutory protection in respect of premises let for use as a residence if the tenant has built, acquired vacant possession of, or been allotted another property of the same kind. The object of a clause like this is to restrict statutory protection to the tenancy of only one residential premises. This is clear from Shyam Sunder v. Khanchand, (1966) 2 Dlt 223 Kali Kumar Sen v. Makhanlal Biswas Air 1969 Assam 66 (FB) Avinash Kaur v. Beli Ram, 1970 Rcj 995, and Ganpat Ram v. Smt. Gayatri Devi, . This provision has been made in view of paucity of residential premises in Delhi. As a policy it is intended to safeguard the legitimate interests of the landlord as also to eater to requirement of those persons in society who do not have been even a place to live in and need residential accommodation on reasonable rent in Delhi. This purpose would be frustrated if the argument of Mr. Kapur were to be accepted.
(23) Further, the question whether a tenant actually uses, misuses or does not use the premises as a residence may arise when recovery of possession of residential premises is sought under Clause (c) or Clause (d) of the proviso to Sub-section (1) of Section 14. This question is not relevant for the purpose of Clause (h). However, one or more grounds specified in the proviso may apply to the facts of a given case and in some case grounds (c), (d) and (h) together may be attracted: but it is incorrect to say that Clause (h) would apply only to premises actually used as a residence by a tenant.
(24) The test of actual use as a residence, in respect of the premises from which eviction is sought or in respect of the acquired property, as suggested by Mr. Kapur, would lead to absurd results. For example a tenant could vacate the hired premises or lock it and shift to the acquired place and contended that the premises let out to him are not in his actual use as a residence and, therefore, he cannot be evicted under Clause (h). Similarly. applying the test to the acquired property even after acquiring vacant possession, the tenant may keep it locked or may use it for some other residential purpose (not as his actual residence), then also Clause (h) would not apply. Such pleas could be raised by not only a company but also by a living being to whom residential premises are let out.
(25) In Shyam Sunder v. Khem Chand (supra) Clause (h) has been held to apply even to a case where a tenant genuinely needed the premises along with additional ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -18- residential accommodation to cater to the growing need of his family. In that case, despite the acquired vacant possession of the additional accommodation being needed and in fact used as residence for the members of the family of the tenant, H.R.Khanna. J. speaking for this court, rejected the argument that Clause (h) was not attracted. It was held that the tenant should not have more than one premises for his residence ; that it is for the tenant, when he takes a new place for his residence, to see that it is sufficient for his needs; that having taken the vacant possession of new premises, he cannot refuse to vacate the earlier tenanted premises on the plea that the demised premises are not sufficient for his residence."
It was further observed that:
"In our view, for the purposes of Clause (h) it really makes no difference whether the demised premises or the acquired property is used by the tenant as actual residence or whether the tenant uses the premises for any other residential purpose or does not at all use either or both of them: nor does it make any difference whether the tenant is a juristic or a natural person."
In another case titled as Hari Shanker Gupta vs. Musaddi Lal 1970 RCR 783; it was observed that:-
"I have no doubt in my mind that it is an essential requirement of clause (h) that the premises from which the tenant is to be evicted, must be residential and not residential-cum-commercial and the premises which he acquires later on must also be residential and not residential-cum-commercial premises."
It was further observed that:-
"This question come up for consideration in two cases before this court in Shyam Sunder vs. Khan Chand 1966 DLT 223 and Revti Devi vs. Kishan Lal, 2 nd appeal from order No. 92-B of 1964 reported in 1970 RCR 71. The question canvassed before me did not actually arise in the aforesaid two cases but the ratio of said decisions in the dates that if the tenant has acquired a legal right to ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -19- occupy another residence, the operation of clause (h) is attracted and he must vacate the tenanted premises, but if he does not have a legal right of his own to reside in the newly acquired premises but he lives at the mercy or courtesy of some other person, he cannot be required to vacate the tenanted premises under clause-h of the act."
In another case titled as Ganpat Ram Sharma & Ors vs Smt. Gayatri Devi 1987 SCR (3) 539; it was observed that:
"the position in law is that the landlord in order to be entitled to evict the tenant must establish one of the alternative facts positively, either that the tenant has built, or acquired vacant possession of or has been allotted a residence. It is essential that the ingredients must be pleaded by the landlord who seeks eviction but after the landlord has proved or stated that the tenant has built acquired vacant possession or has been allotted a residence, whether it is suitable or not, and whether the same can be really an alternative accommodation for the tenant or not, are within the special knowledge of the tenant and he must prove and establish those facts. The other aspect is that apart from the question of limitation to which we shall briefly refer is that the landlord must be quick in taking his action after the accru- al of the cause of action, and if by his inaction the tenant allows the premises to go out of his hands then it is the landlord who is to be blamed and not the tenant."
22. Let us discuss the ingredients:-
Perusal of record shows that the petitioner has claimed that the respondent has purchased the adjacent flat bearing No. A-7A, DDA Flats, Raghubir Nagar, Delhi and shifted her accommodation there. On the other hand, the respondent has admitted that the aforesaid flat has been purchased but the claim of the respondent is that it is in the name of her daughter and it was purchased by the son of the respondent.
I have carefully and minutely gone through the record which shows that the respondent has not claimed that the ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -20- tenanted premises was let out to her for commercial purposes. On the other hand, the petitioner has also claimed that the property was rented out only for residential purposes. As such, one of the ingredients of the 14(1)(h) is satisfied as it is proved on record that the tenanted premises was let out for residential purposes only.
I have also gone through the entire judicial record which shows that during the cross examination, RW-1 Smt. Veena Trikha inter-alia deposed that "it is correct that when the sale deed was executed in favour of my daughter Ms. Sanya Trikha of the flat no. A-7-A, on the ground floor, I had paid the consideration amounting to Rs. 2,30,000/- vide cheque No. 96616 dated 20.04.2012 drawn at SBI and this cheque was mine. (Vol. My daughter Sanya Trikha now has been married on 13.08.2018). That flat belongs to my daughter and I have no concern with the said flat. It is wrong to suggest that the said flat belongs to me. It is wrong to suggest that the said flat is being used by me or that is in my occupation or that I am taking rent from that flat. (Vol. My daughter is taking the rent of the said flat). My daughter is receiving the rent of the said flat from the date when she let out the same. I do not have any rent agreement to show that the rent is being taken by my daughter.
(Vol. Earlier, there was a rent agreement). It is correct that I do not have any rent agreement of any period. There is no rent agreement as on today as of present tenant."
I have carefully and minutely gone through the testimonies of all the witnesses and material on record which shows that the respondent has the legal right to occupy the ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -21- acquired property i.e. Flat No. A-7-A.
23. As such, in view of settled proposition of law as mentioned earlier, the respondent has acquired a vacant possession of property for residence as laid down in Sec. 14(1)
(h) of D.R.C. Act.
As such, an eviction order is passed U/Sec. 14(1)(h) of D.R.C. Act in favour of petitioner and against the respondent in respect of in respect of the tenanted premises i.e. premises bearing No. A-6A, DDA Flats, Raghubir Nagar, Delhi-110027 as shown in the site plan in red colour annexed with the eviction petition.
Section 14(1) (j) of D.R.C. Act:-
24. Section 14(1)(j) is reproduced as under:-
"(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."
It is well settled that every damage to premises does not entitle the landlord to obtain the eviction order. There should be substantial damage to the premises. There should be material alteration in the premises. The onus to prove that the tenant has caused substantial damage to the property is on the ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -22- landlord.
In the case titled as Shakuntla Devi Vs Avtar Singh 113 (2004) DLT 424 (relied upon by the petitioner), the Hon'ble Delhi High Court observed that:-
"6. Having analysed the reasonings of the courts below, I am of the view that the very fact that the tenant-respondent has punctured the weight-bearing walls of the premises in question and created additional space for himself by way of parchhati equivalent to the floor area, admits of increase of weight on the load-bearing walls and certainly can be said to have caused substantial damage to the premises in question. The tenant can not damage the walls, errect additional space and yet claim that no substantial damage has been caused to the premises in question. Structural change which brings about additional load on the existing load bearing walls, is substantial damage to the premises in question. It is not necessary that the walls must crumble under additional weight to bring the mischief of the tenant under Section 14(1)(j) of the Act. Suffice to say in the facts and circumstances of the present case where the tenant has punctured holes into the walls created additional space by erecting a parchhati equivalent to the floor area of the room in question and is using the same for either storage of goods and/or residence purposes, would come within the mischief of Section 14(1)(j) of the Act. The tenant is not permitted to make any changes/alterations so as to increase load on the walls which are otherwise designed to hold the structure as was let out to the tenant".
In the case titled as Suraj Parkash Sawhney Vs Bhagat Ram passed in S.A.O.No.328-D of 1964 (relied upon by the petitioner), the Hon'ble Punjab High Court observed that:-
"Sub-Section (10)has been introduced as a corollary to clause (j) of the proviso to sub-section(1), and it is ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -23- provided that in cases where the tenant caused a substantial damage to the demised premises the Controller may direct the tenant to carry out repairs to the damage caused to his (the Controller's) satisfaction or to pay such amount by way of compensation as the Controller may direct. The sub-section has been enacted to grant relief to the tenant causing substantial damage to the demised premises in case he is prepared to undo the damage caused by him. Sub-section (10), however, does not make it imperative for the Controller to give a choice to the tenant either to repair the damage or to pay the compensation. It would in my view, depend upon the circumstances of each case for the Controller to decide as to whether he should make an order calling upon the tenant to repair the damages or to pay an amount by way of compensation and to mould his directions accordingly. The Controller is vested with a discretion in the matter which must be exercised judicially looking to the facts of each case, and it is for the Controller to decide as to what type of order contemplated by sub-section (10) should be made by him. In a case like the present if the order were not for the construction of the intervening wall but only for payment of a paltry compensation of Rs.200/- which would, according to Mr. Hardy, be the cost of constructing the wall, there would always be a danger of the entire building falls down because of the demolition of the wall which was supporting roof. The payment of compensation in a case like the present wall hardly be the proper relief and as such the Additional Controller and Tribunal were in my opinion fully justified in direct the tenant construct the intervening wall in case he wanted to avoid his eviction in Appeal No.328-D of 1964 is consequently dismissed."
In the case titled as Suraj Parkash Chopra Raj kumar vs Baij Nath Dhawan and Anr. 2003 III AD Delhi 705, 103 (2003) DLT 645, (relied upon by the petitioner) the Hon'be High Court of Delhi observed 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;
ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -24-
(iv) the said construction has materially affected the tenancy premises and further that the construction which had been carried out by the tenant had materially altered the premises;
(v) Court must determine the nature, character of the construction and the extent to which they make changes in the structure of the premises having regard to the purpose for which the premises have been let out;
(vi) landlord has to prove it by cogent evidence and wherever necessary expert witness should be examined;
(vii) an eviction order under Clause (j) could be passed if and structural changes in the tenancy premises which had brought about material impairment in the value and utility of premises;
(viii) every construction or alteration does not impair the value and utility of the building and that construction must be of material nature which should substantially diminish the value of the building either from commercial and monetary point of view or from 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 alteration in the tenancy premises will not invite eviction of the tenant under Clause
(j) and that each case would depend upon its own facts; 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."
25. Perusal of the record shows that the petitioner has claimed that the respondent has completely altered the original configuration of the rooms, kitchen and toilet without consent of the landlord. On the other hand, the respondent has denied that she has caused substantial damage to the tenanted premises. ' I have carefully and minutely perused the record and testimonies of the witnesses.
26. As mentioned earlier, all the alterations and additions in the premises are not substantial damage and the duty is always ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -25- on the landlord to prove that such alterations and additions have caused substantial damage to his premises. It is well settled that every damage is not substantial damage.
27. It is well settled that 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. It is also clear that every change, addition or alteration in the tenancy premises will not invite eviction of the tenant under Clause (j) and each case depends upon its own facts.
28. I have carefully gone through the record and I am of the considered view that the petitioner has not been able to prove the ingredients of Sec. 14(1)(j) of D.R.C. Act.
Section 14(1) (k) D.R.C. Act:-
29. Section 14(1)(k) of D.R.C Act is as under:-
"(k) that the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or the Municipal Corporation of Delhi while giving him a lease of the land on ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -26- which the premises are situated."
As such the following are the ingredients of section 14(1)(k) D.R.C. Act :-
i) Tenant used the premises in contravention of conditions imposed by the government authority giving landlord a lease of land.
ii) The tenant continued such contravention despite previous notice given by the landlord.
30. Perusal of the record shows that the petitioner has claimed that this is a DDA Flat and as per the terms and conditions of the lease deed and conveyance deed, no addition or alteration can be done in the said flat and this kind of unauthorised construction can lead to cancellation of allotment by DDA. On the other hand, the respondent has denied the same.
I have carefully and minutely gone through the material on record, testimonies of all the witnesses and documents on record which shows that the petitioner has not been able to prove on record the terms and conditions of the lease deed. Moreover, no lease deed has been placed on record.
31. As such, in view of material on record and well settled proposition of law, the petitioner has been unable to prove all the ingredients of Sec. 14(1)(k) D.R.C. Act.
ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -27- CONCLUSION:-
32. In view of the aforesaid discussions, this court has come to the conclusion that the petitioner has satisfied all the ingredients of Section 14(1)(a) of D.R.C. Act in respect of the tenanted premises i.e. premises bearing No. A-6A, DDA Flats, Raghubir Nagar, Delhi-110027 as shown in the site plan in red colour annexed with the eviction petition.
Perusal of the record shows that the petitioner did not press her prayer U/Sec. 14(1)(d) & (e) D.R.C. Act. As such, the prayer of the petitioner U/Sec. 14(1)(d) & (e) D.R.C. Act has already been dismissed as withdrawn.
Furthermore, an eviction order is passed in favour of the petitioner and against the respondent U/Sec. 14(1)(h) D.R.C. Act in respect of the tenanted premises i.e. premises bearing No. A-6A, DDA Flats, Raghubir Nagar, Delhi-110027 as shown in the site plan in red colour annexed with the eviction petition.
Further, the petitioner has failed to prove all the ingredients of Sec. (c), (j) & (k) of the D.R.C. Act.
33. Record shows that an order U/S 15(1) of DRC Act was passed by my Ld. Predecessor on 04.12.2012 directing the respondent to pay or tender the rent w.e.f. 01.10.2011 @ Rs. 1800/- per month within one month from the date of order and the future rent at the same rate.
As such, in view of discussion as earlier, a modified order ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha -28- is passed U/S 15(1) of DRC Act directing the respondent to pay or tender the rent w.e.f. 01.07.2010 to 05.05.2012 @ Rs. 1800/- and w.e.f. 06.05.2012 to till date @ Rs. 1980/- (10% enhanced rent) with simple interest 15% p.a within one month from today and respondent is further directed to pay or tender the future rent at the same rate on or before the 15th of day of succeeding English calendar month.
34. Nazir attached to this court is directed to file his report in respect of order passed by this court today U/S 15(1) of DRC Act. Report be filed on 05.04.2019.
35. Miscellaneous file be prepared for the benefit, if any, U/Sec. 14(2) D.R.C. Act.
36. This file be consigned to Record Room after due compliance.
Announced in the open court on 11th December, 2018.
(This judgment contains 28 pages)
AJAY Digitally signed by
AJAY NAGAR
NAGAR Date: 2018.12.11
17:34:12 +0530
(AJAY NAGAR)
Commercial Civil Judge-cum-
Additional Rent Controller,
West District, THC, Delhi.
ARC No. 25307/16 Smt. Asha Khanna vs. Mrs. Veena Trikha