Delhi District Court
Sh. Harish Chand vs Sh. K. P. Jain on 15 September, 2011
IN THE COURT OF SH. RAVINDER SINGH: ADDL. RENT
CONTROLLER: KKD COURTS: DELHI
M(44)107/06
Case I.D. No.02402C0270482006
Sh. Harish Chand
S/o Sh. Ladha Ram
R/o H. No.125, Main Road,
Shanker Nagar, Opposite Govt.
Higher Secondary School,
West Azad Nagar, Delhi51. ... Petitioner
Versus
Sh. K. P. Jain
S/o Sh. Prithvi Singh Jain
H.No.125, Main Road,
Shanker Nagar, Opposite Govt.
Higher Secondary School,
West Azad Nagar, Delhi51. ...Respondent
Date of filing of petition : 18/05/2006
Date of argument : 09/09/2011
Date of Judgment : 15/09/2011
Petition u/s 44 of DRC Act.
JUDGMENT:
1. Sh. Harish Chand (hereinafter called petitioner) filed this petition u/s 44 of DRC Act for permission to repair the tenanted premises M(44)107/06 Page 1 of 9 against Sh. K. P. Jain (hereinafter called respondent) in respect of hereinafter called tenanted premises).
2. Petitioner alleged that he is tenant in the tenanted premises since 1987 and he is now paying rent at present @ Rs.484/ p.m. He further alleged that tenanted premises is not habitual due to the reason of drainage pipeline which is put up by the petitioner alongwith tenanted premises for drainage of dirty water and chemical waste from the roof. Petitioner further alleged that the shutter put on the tenanted premises is unusable due to damage. Petitioner further alleged that respondent has raised the floor level of the premises in his possession but he has neglected to make necessary repair in the tenanted premises despite his repeated request. Petitioner further alleged whenever he requested for repair, respondent started picking up quarrel and extending threat for getting the tenanted premises vacated. Petitioner further alleged that respondent is interested in increasing the rent and he served the notice to this effect which was replied by him vide its reply dated 30/3/05. Petitioner further alleged that the estimated cost which would be incurred on repair would be Rs.6000/. Petitioner further alleged that the respondent has failed to carry out the repair despite his repeated requests and therefore he filed the present petition.
3. Summons for settlement of issues were served upon respondent M(44)107/06 Page 2 of 9 who filed written statement stating therein that the petitioner has not served notice u/s 44 DRC Act upon him to call him to make necessary repair in the tenanted premises. Respondent further alleged that petitioner himself damaged the shutter of the tenanted premises. Respondent further stated that drainage pipe is in good condition and he repairs the tenanted premises from time to time. He further stated that petitioner put the building material i.e. badarpur and stone dust inside the tenanted premises and he sprinkled the water on badarpur and stone dust thereby the plaster of wall of tenanted premises were damage and for this reason shutter of tenanted premises also damaged. Respondent also denied the other allegations of petitioner and prayed for dismissal of petition.
4. Replication filed by petitioner wherein he stated that he requested respondent for carrying out the repair vide his reply dated 30/3/05 and therefore no separate notice is required u/s 44 DRC Act. Petitioner further reiterated other facts of petition and denied the facts stated in the written statement.
5. In support of their case, petitioner examined himself as PW1 whereas respondent examined three witness i.e. he examined himself as RW1, Keshoram Sharma as RW2 and Shree Ram as RW3.
6. PW1 deposed on the lines of his petition and he proved the site M(44)107/06 Page 3 of 9 plan Ex.PW1/1. PW1 also proved his complaints Ex.PW1/2 to Ex.PW1/4. PW1 also proved his reply dated 30/3/05 to the legal notice of respondent Ex.PW1/5 which was sent by him to respondent through registered post and UPC. The receipt of registered post Ex.PW1/6 and UPC Ex.PW1/7. PW1 further deposed that reply of notice was duly served upon respondent, the acknowledgment cards are Ex.PW1/8 and 9. PW1 also deposed that respondent admitted the service of his reply dated 30/3/05 vide his notice Ex.PW1/10. PW1 also proved the legal notice of respondent dated 06/1/99 Ex.PW1/11 and his reply dated 08/2/10 Ex.PW1/12.
In crossexamination PW1 deposed that drainage pipe attached to the property is broken. PW1 further deposed that the floor level of tenanted premises is 9' lower to the main road. He further deposed that bottom of shutter is not damaged due to keeping of wet badarpur. PW1 denied the suggestion to the effect that he never asked the respondent to carry out the necessary repair.
7. RW1 deposed that the petitioner is liable to get the tenanted premises repaired at his own cost. RW1 also deposed that he served a notice for increase of rent Ex.RW1/1 for enhancement of rent by 10% but petitioner has not increased the rent. RW1 further deposed that reply of petitioner dated 30/3/05 Ex.RW1/2 cannot be the base of notice u/s 44 DRC Act to file M(44)107/06 Page 4 of 9 the present petition. RW1 further deposed that drainage pipe is in good condition as shown in photograph Ex.PW1/3 and the floor level of shop is above road level but it appears below to the sewer nala as shown in photograph Ex.RW1/4. RW1 further deposed that the complaints filed by the petitioner are false and no FIR has been registered against him. Certificate of DCP (East) to this effect is Ex.RW1/5. He further deposed that the demand of petitioner of Rs.6000/ has no base.
In crossexamination RW1 deposed that he got the tenanted premises repaired from front side after 2 years but no repair would be carried out inside the shop. RW1 also admitted that the shutter of tenanted premises is same which was at the time of tenancy. RW1 also admitted that the plaster of the shop from inside was not carried out since inception of tenancy. RW1 also admitted that the supports of shutter are broken and below portion of shutter is also broken. RW1 further admits that there is difference in floor level of his shop and tenanted premises and the difference is of 6 inches. RW1 also admitted that he got no repair from inside the tenanted premises. RW1 admitted that he filed a petition u/s 14 (1) (e) DRC Act against petitioner.
8. RW2 deposed that the floor level of tenanted premises appears to be below than the level of road and the drainage pipe attached with M(44)107/06 Page 5 of 9 tenanted premises is in good condition.
In crossexamination RW2 deposed that he is appearing at the instance of respondent K.P. Jain. RW2 further deposed that he does not know when repair was carried out by respondent in the tenanted premises. RW2 admitted that floor level of tenanted premises is 2'/3' lower than nala in front of shop.
9. RW3 deposed the same facts as deposed by RW2 in his examination in chief. In crossexamination, RW3 deposed that he does not know when repair was carried out by respondent in the tenanted premises. RW3 also deposed that he is deposing whatever respondent asked him to depose. RW3 further deposed that the floor level of shop in possession of respondent is same with the tenanted premises and there is no difference in floor level.
10. I have heard the argument of respondent and Ld. counsel for petitioner and also perused their written argument of respondent besides the material placed on record.
11. There is no dispute regarding landlordtenant relationship between petitioner and respondent as respondent has not disputed the same further respondent admitted that he has filed a petition u/s 14 (1) (e) DRC Act against petitioner and also served a notice for enhancement of rent M(44)107/06 Page 6 of 9 Ex.RW1/1 upon petitioner.
12. The main argument of respondent that petitioner has not served notice before filing the petition to call him for necessary repair and hence he is not entitled for relief u/s 44 DRC Act. Ld. counsel for petitioner argued that petitioner called the respondent to make necessary repair through his reply cumnotice dated 30/3/05 and therefore petitioner has served the notice upon respondent before filing the petition.
13. It is admitted by respondent that he served a notice for enhancement of rent Ex.RW1/1. It is also not disputed that petitioner replied the notice of enhancement of notice of respondent vide his reply dated 30/3/05 Ex.PW1/5. In his reply Ex.PW1/5, petitioner called the respondent to keep the tenanted premises good and tenable condition. The relevant portion of petitioner's reply Ex.PW1/5 is read as under: Your client has never cared to carry out any repair till this date, whatsoever for keeping the tenanted premises in good and treatable condition to which he was under
obligation under the provisions of the Delhi Rent Control Act. You are, therefore, requested to advise your client to carry out necessary repairs at least of the shutter by considering this to be notice under Section 44 of the Delhi Rent Control Act, failing which my client shall be at liberty to avail appropriate legal remedy as may be available and advisable to my client at the costs and risks of your client.M(44)107/06 Page 7 of 9
14. From the perusal of the reply to the notice of respondent Ex.PW1/5, it is clear that petitioner not only replied the notice of respondent Ex.RW1/1 but also called the respondent to make the necessary repair in the tenanted premises u/s 44 DRC Act. The reply of petitioner Ex.PW1/5 is not only simply the reply to the notice of respondent but also the notice u/s 44 of DRC Act to respondent. In view of this discussion, there is no force in the argument of respondent that petitioner has not served a notice before filing the petition.
15. Further, it is clear from the crossexamination of RW1, 2 and 3 that the shutter of the shop is required repair as the bottom of same is damaged (rusted). It is also clear from the testimony of PW1, RW1 and RW2 that the floor level of the tenanted premises is below from the road level. Further it is also admitted by respondent that the floor level of his shop is 6 inches higher than the tenanted premises.
16. Further it is pertinent that PW1 deposed that drainage pipe line attached with the tenanted premises is broken. RW1, 2 and 3 all deposed that drainage pipe line is in good condition and does not require repair. Admittedly petitioner has not mentioned anything about drainage pipe line in his notice Ex.PW1/5 so I am of considered opinion that the testimony of PW1 is not reliable to the effect that drainage pipe attached with the tenanted M(44)107/06 Page 8 of 9 premises is broken.
17. It is pertinent that petitioner gave the estimated cost of Rs. 6000/ in his petition that will be incurred on the repair. He also deposed the same fact in Ex.P1. Admittedly petitioner has given the lump sum estimated cost. He has not provided the details of cost that will be spent on the repair of shutter and flooring of shop. It is pertinent that petitioner has not mentioned the estimated cost of Rs.6000/ in Ex.PW1/5. Further petitioner has not disclosed the standard of estimation of cost of Rs.6000/ that would be spent on the repair. Under these circumstances, I am of considered opinion that there is no base of estimation of cost of Rs.6000/.
18. In view of aforesaid discussions, petitioner has proved that respondent has not kept the tenanted premises in good and habitable condition and he has also failed to carry out the repair despite service of legal notice cum reply. Accordingly petition u/s 44 DRC Act is allowed and thereby petitioner is permitted to make repair in the shutter of the tenanted premises and also raise the floor level of tenanted premises equal to the shop of the respondent at his own cost. No order as to cost.
(Announced in the open
court on 15/9/2011) (RAVINDER SINGH)
ADDL. RENT.CONTROLLER(E)
KKD COURTS, DELHI.
M(44)107/06 Page 9 of 9