Delhi District Court
Through Its Partner Shri Yogesh Puri vs Shri Nand Lal Virmani on 29 January, 2020
IN THE COURT OF SHRI GIRISH KATHPALIA,
DISTRICT & SESSIONS JUDGE (HQs)
TIS HAZARI COURTS, DELHI.
RCT No. 30342/2016
M/s ALPHA AGENCIES
H.No. WZ20, (NEW No. SN7)
SRI NAGAR COLONY
ASHOK VIHAR ROAD (NEAR BHARAT NAGAR)
DELHI 110052
THROUGH ITS PARTNER SHRI YOGESH PURI
.....APPELLANT
VERSUS
1. SHRI NAND LAL VIRMANI
S/o LATE SHRI BASANT LAL VIRMANI
R/o H.No. WZ521, SUDERSHAN PARK
NEW DELHI 110015
2. SHRI ASHOK KUMAR VIRMANI
S/o LATE SHRI BASANT LAL VIRMANI
R/o H. No. BG5A28A, LIG FLATS
PASCHIM VIHAR, DELHI
... ..RESPONDENTS
Date of filing : 21.12.2013
First date before this court : 09.08.2019
Arguments on appeal on : 21.01.2020
Date of Decision : 29.01.2020
Appearance : Shri Naresh Gupta, counsel for appellant
Ms. Geeta Dhingra, counsel for respondent
RCT No. 30342/2016 M/s Alpha Agencies vs Nand Lal Virmani Page 1 of 21 pages
JUDGMENT
1. In this appeal, brought under Section 38 of the Delhi Rent Control Act, the appellant tenant has assailed order dated 29.10.2013 of the learned Additional Rent Controller whereby the eviction petition filed by the present respondents landlords was allowed under Section 14(1)(j) of the Delhi Rent Control Act and matter was posted for consideration of Section 14(10) of the Act. Although, the eviction petition filed by the present respondents was under Section 14(1)(b) and 14(1)(c) Delhi Rent Control Act as well, but to that extent, the eviction petition was dismissed and the present respondents opted not to challenge that part. Upon issuance of notice, the respondents landlords entered appearance through counsel. I heard learned counsel for both sides and examined the trial court record.
2. Briefly stated, the relevant factual matrix as set up by the present respondents in their eviction petition before the trial court was as follows.
2.1 The appellant was inducted as tenant by Shri Basant Lal, the now deceased father of the present respondents with effect from 01.08.1973 in premises no. WZ 20(New No. SN7), Sri Nagar Colony, Delhi (hereinafter referred to as "the demised premises") for commercial purposes at a monthly rent of Rs. 121/ besides electricity charges. The RCT No. 30342/2016 M/s Alpha Agencies vs Nand Lal Virmani Page 2 of 21 pages accommodation in the demised premises consisted of one room, a verandah with common use of courtyard, latrine and hand pump, as depicted in the site plan filed with the eviction petition.
2.2 After being inducted as tenant in the demised premises, the appellant caused substantial damage, structural changes and unauthorized construction without written consent of father of the present respondents thereby materially impairing its value and utility.
2.3 The appellant demolished the latrine, which was for common use of the appellant with two other occupants namely Shri Champat Ram and Shri Raghubir Singh of the property; the appellant illegally extended the demised premises by covering the verandah and courtyard, converting the same into a big hall; the appellant broke wall depicted in the site plan as AD and installed a shutter at points depicted in the site plan as YY1 at rear side of the demised premises close to the tin sheeted WC belonging to Shri Champat Lal adjoining the demised premises; the appellant also fixed a shutter at points depicted in the site plan as ZZ1 on front side of the demised premises subsequent to 16.07.1999; the appellant also raised height of the walls and after removing roof of the demised room, constructed a parchhatti (mezzanine floor); the appellant fixed more than six girders in the wall of the demised premises and caused damage.
RCT No. 30342/2016 M/s Alpha Agencies vs Nand Lal Virmani Page 3 of 21 pages 2.4 Since the above mentioned structural changes and damage caused to the demised premises was carried out without written consent of the landlord Shri Basant Lal or the present respondents, and the same caused material impairment to the utility and value of the demised premises, the appellant is liable to be evicted under Section 14(1)(j) of the Delhi Rent Control Act, according to the present respondents.
3. In the written statement filed by the appellant before the learned Additional Rent Controller, the relevant factual matrix as set up was as follows.
3.1 The demised premises were taken on rent by the appellant from Shri Basant Lal for the purposes of carrying out business of cardboard boxes.
3.2 The site plan filed by the present respondents with the eviction petition was not correct, so the appellant filed a correct site plan with the written statement.
3.3 The accommodation in the demised premises consisted of a hall, a toilet fitted with handpump and Indian seat, and a passage. The hall consisted of two portions horizontally divided by wooden planks and wooden supports with internal wooden staircase for access to the upper portion. The lower portion of the hall had a steel door on front RCT No. 30342/2016 M/s Alpha Agencies vs Nand Lal Virmani Page 4 of 21 pages and a steel shutter on the rear side of the wall adjacent to the wall and in the passage, with an exhaust fan above the steel shutter. The upper portion of the hall had a steel shutter for light and air as well as for inwards/outwards movements of goods on the front wall at the site of opening of the wooden staircase, and a ventilator above the steel main door. There was also a toilet with a handpump in the demised premises.
3.4 The appellant did not carryout any damage or structural changes or construction in the demised premises as alleged by the present respondents without consent of Shri Basant Lal. The demised premises continue to be in the same and similar condition as the same were at the time of induction of the appellant as a tenant, and the appellant merely renovated the demised premises, that too with the specific permission and written consent of Shri Basant Lal who had agreed to even reimburse the amount spent on renovation.
3.5 The appellant had no occasion to demolish any latrine since at the time of inception of tenancy, there was no latrine for common use by the appellant with the other two occupants. The said other two occupants Shri Champat Ram and Shri Raghubir Singh were being allowed by the appellant to use the toilet and handpump in the demised premises on humanitarian grounds. The appellant did not extend the demised room by covering the verandah and the courtyard as alleged by the present respondents in the eviction petition. As regards the shutter at RCT No. 30342/2016 M/s Alpha Agencies vs Nand Lal Virmani Page 5 of 21 pages points YY1 (shown in site plan filed with the eviction petition), since the old shutter had got worn out due to passage of time, the same was merely replaced with a new shutter and for that no wall was broken. The appellant did not install any shutter at points ZZ1 (shown in site plan filed with the eviction petition). The appellant did not raise height of walls nor constructed any mezzanine floor nor broke the wall points AD (shown in site plan filed with the eviction petition) nor fixed graders in the wall as alleged in the eviction petition 3.6 Since the appellant did not carryout any structural changes or construction or damage to the demised premises, without written consent of Shri Basant Lal, the eviction petition to the extent under Section 14(1) (j) of the Delhi Rent Control Act is liable to be dismissed.
4. The present respondents filed rejoinder before the learned Additional Rent Controller to reaffirm their pleadings.
5. After conducting full dress trial, learned Additional Rent Controller passed the impugned eviction order, thereby holding the appellant tenant liable to be evicted under Section 14(1) (j) of the Delhi Rent Control Act subject to the decision on the issue under Section 14(10) of the Act. Hence, the present appeal.
RCT No. 30342/2016 M/s Alpha Agencies vs Nand Lal Virmani Page 6 of 21 pages
6. During final arguments, learned counsel for both sides took me through the above narrative in the light of trial court record.
6.1 Learned counsel for appellant argued that there is no material on record as to what had been originally let out to the appellant and when the alleged damage was caused and to what extent; that the lease document Ex. AW1/R1 permitted the appellant to carryout renovations in the demised premises; that the extent of accommodation of the demised premises as shown in the present petition is different from the one shown in the previous petition Ex. AW1/3 which had been filed on behalf of Shri Basant Lal by the present respondent no. 1 on 24.09.1975; that the hall in question was constructed in the year 1975 itself even according to Ex AW1/3; that in the written statement to the previous eviction petition Ex. AW1/3 also, the appellant tenant had taken a clear stand of having carried out only renovations with written consent Ex. AW1/R1 of Shri Basant Lal; that the documents Ex. AW1/8, Ex. AW1/1019 and Ex. AW1/27 were not proved in accordance with law but the same were read against the appellant by the learned Additional Rent Controller while passing the impugned order.
6.2 On the other hand, learned counsel for respondents argued that stand taken by the appellant in the written statement to the eviction petition was totally different from stand taken in Ex. AW1/4 written statement filed in the earlier case as well as plaint Ex. AW1/7 of the RCT No. 30342/2016 M/s Alpha Agencies vs Nand Lal Virmani Page 7 of 21 pages previous suit. Learned counsel for respondents took me through each of the photograph Ex. AW1/1019 in support of her argument that the damage and structural changes in question were carried out by the appellant some time in the year 1999. It was also argued by learned counsel for respondents that the amount of Rs. 10,000/ mentioned in the written statement Ex. AW1/4 allegedly spent on renovations, which was enhanced to Rs. 16,000/ in suit Ex. AW1/7 in itself reflects falsity of stand taken by the appellant and even otherwise such big amount spent in the year 1973 would show extensive damage caused to the premises. Learned counsel for respondents also argued that in the suit Ex. AW1/7 filed in year 1999, the appellant did not disclose the existence of mezzanine floor and shutters, which would show that the same were constructed subsequent to filing of that suit. It was also argued by learned counsel for respondents that since the appellant did not respond to the notice served on it prior to institution of eviction petition, an adverse inference is liable to be drawn against the appellant.
6.3 In rebuttal arguments learned counsel for appellant reiterated that the documents read against the appellant by the learned Additional Rent Controller while passing the impugned order were not proved in accordance with law. Learned counsel for appellant also placed reliance on the judgment of Hon'ble Delhi High Court in the case of Madhukar Rao Pimpalapure vs Meena Pimpalapure, 2010 (114) DRJ 418 in support of his contention that keeping in mind nature of the RCT No. 30342/2016 M/s Alpha Agencies vs Nand Lal Virmani Page 8 of 21 pages previous suit Ex. AW1/7, there was no need for the appellant to make a mention of existence of mezzanine floor and shutters.
7. So far as the legal position is concerned, the learned Additional Rent Controller so aptly described the same in the impugned order thus :
"22. Before taking up the rival contentions of the learned counsel for parties, it is deemed fit to make a reference to the law regarding s.14(1)(j) of the DRC Act which was summarized by Hon'ble High Court of Delhi in Suraj Prakash Chopra Raj Kumar vs Baij Nath Dhawan & Anr 103 (2003) DLT 645 as follows :
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 the construction without the consent of landlord.
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 the tenant has carried out such additions or RCT No. 30342/2016 M/s Alpha Agencies vs Nand Lal Virmani Page 9 of 21 pages alternations 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 utilization 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.
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.
8. Para 8 of the eviction petition filed by the present respondents described the details of accommodation in the demise premises as follows:
"One room, a verandah with common use of courtyard, latrine and handpump in H.No. WZ 20 fully described and shown in attached site plan marked A".
Ex. AW1/2 is the site plan of the demised premises according to the present respondents. The appellant denied correctness of this site plan.
RCT No. 30342/2016 M/s Alpha Agencies vs Nand Lal Virmani Page 10 of 21 pages
9. Para 18(a)(ii) of the eviction petition described the details of damage, structural changes and unauthorized construction allegedly carried out in the demised premises. Broadly speaking, the present respondents alleged that the appellant covered the verandah and the open courtyard; demolished the common use latrine; and after removing the ceiling and raising the height of walls, constructed a mezzanine floor in the demised premises. Ex. AW1/6 is the site plan of the demised premises after the alleged deviations according to the present respondents.
10. In the impugned eviction order, while arriving at a finding that the appellant caused damage to the demised premises, the learned Additional Rent Controller commenced with the observation that the appellant did not prove any document except site plan, whereas the present respondents proved various documents including the earlier eviction petition Ex. AW1/3 filed by Sh. Basant Lal, MCD survey report Ex. AW1/8, written statement Ex. AW1/4 filed in the earlier eviction petition, plaint Ex. AW1/7 of the suit filed by the appellant, order Ex. AW1/9 dated 23.07.1999 of learned Civil Judge passed in the suit of the appellant, and photographs Ex. AW1/1019.
11. As mentioned above, no formal lease deed was executed between the parties. However, both sides admitted that it is the handwritten note Ex. AW1/R1 which created the jural relationship of RCT No. 30342/2016 M/s Alpha Agencies vs Nand Lal Virmani Page 11 of 21 pages tenancy between the parties. Admittedly, Ex. AW 1/R1 was handwritten by Sh. Basant Lal, and is worded thus:
"This is to confirm that the premises let to Sh. Prem Chand Jain will be let to M/s. Alpha Agencies, 156 D, Kamla Nagar, Delhi with effect from 01.08.73 i.e. when the premises is vacated, at the rent of Rs. 100/ (Rs. One Hundred Only) p.m. With this contract they are allowed to renovate the premises. The expenses incurred in this will be paid by me at the time of vacating and handing over the possession to me or my nominee. The expenses will be repaid by me at one month's notice. Written this day the 20th July, 1973."
The said document Ex. AW1/R1 admittedly bore signatures of Sh. Basant Lal and the witness Sh. R.P. Sharma. This document is a crucial piece of evidence since according to the appellant, whatever in the name of structural changes was carried out, the same was done by way of renovations way back in 1973 with the said written consent of landlord Sh. Basant Lal.
12. As mentioned above, correctness of site plan Ex. AW1/2 depicting the extent of demised premises at the time of inception of lease was denied by the appellant. However, in the crossexamination of the present respondent no. 1, the appellant produced another site plan and correctness thereof was admitted by the respondent no. 1, so the same was exhibited as Ex. AW1/R1. It seems that due to inadvertent error, RCT No. 30342/2016 M/s Alpha Agencies vs Nand Lal Virmani Page 12 of 21 pages two documents, namely the handwritten document dated 20.07.1973 and the site plan admitted by both sides were assigned same exhibit number Ex. AW1/R1. The site plan Ex. AW1/R1 being the admitted site plan, I compared the site plan Ex. AW1/2 (relied upon by the present respondent) with the same but found that shape of the demised premises in the two site plans is totally different. If a trace out of the admitted site plan Ex. AW1/R1 is taken on a butter paper (as done by learned counsel for appellant during final arguments) and placed on the site plan Ex. AW1/2 filed by the present respondents, the two plans do not correspond to each other. Therefore, in my view site plan Ex.AW1/2 relied upon by the present respondents is not a correct site plan of the demised premises depicting the same as existed at the time of inception of tenancy between the parties.
13. The document Ex. AW1/3 is the certified copy of eviction petition filed on 25.09.1975, i.e. about two years after inception of tenancy. The said petition was filed against the appellant under Section 14 of the Delhi Rent Control Act, alleging grounds stipulated under Section 14 (1) (a), 14 (1) (b) and 14 (1)(j) of the Delhi Rent Control Act. The said petition was filed by the present respondent no. 1 claiming himself to be the next friend and son of Sh. Basant Lal, "an insane person". Vide order Ex. AW1/5 dated 31.08.1978, the said eviction petition was dismissed on the ground that notice of termination of tenancy had not been served.
RCT No. 30342/2016 M/s Alpha Agencies vs Nand Lal Virmani Page 13 of 21 pages
14. In para 8 of the earlier petition Ex. AW1/3, the extent of accommodation under tenancy was described as follows:
"One room alongwith verandah with common use of latrine and handpump as per site plan attached and portion shown in red."
Noticeably, the extent of accommodation under tenancy, as declared by the present respondents just two years after inception of tenancy was different from the extent as declared in the eviction petition out of which the present appeal arose, insofar as the extent of accommodation previously declared did not include any courtyard.
15. In para 18(a)(iii) of the earlier eviction petition Ex.AW1/3, the damage allegedly caused to the demised premises by the present appellant was described as "breaking and converting the room and verandah into big hall, thus diminishing value of the property, and in contravention of the building bylaws of the Municipal Corporation of Delhi". It was further pleaded in the said paragraph that the appellant had "also covered the open courtyard thus making/converting the room, verandah and open courtyard into one big hall". In other words, even according to the present respondents, some time prior to the month of September, 1975, the wall between the room and the verandah was broken down converting the same into a big hall.
RCT No. 30342/2016 M/s Alpha Agencies vs Nand Lal Virmani Page 14 of 21 pages
16. Further, in para 11 of his chief affidavit, the present respondent no. 1 specifically deposed that "soon after 01.08.1973" the appellant first demolished latrine and removed handpump and also covered the courtyard and verandah thus converting the demised room, verandah and courtyard into a big hall. In para 12 of his chief affidavit, the present respondent no. 1 further deposed that during the period of next three years (i.e. by the year 1976) the appellant carried out structural changes in rear open space and constructed mezzanine after covering the entire courtyard.
17. In his crossexamination as AW1, the present respondent no. 1 admitted that the handwritten tenancy note Ex. AW1/R1 was written and signed by his father Shri Basant Lal. As mentioned above, Ex. AW1/R1 note consented for renovation of the demised premises. Further, in his crossexamination AW1 stated that when the earlier eviction petition was filed, hall was already there in the demised premises. It would be further significant to note that the present respondent no. 1 in his cross examination dated 11.07.2005 as AW1 initially admitted that the premises let out were as depicted in site plan Ex. AW1/R1; but counsel for the present respondents prompted, as recorded in the testimony itself, so AW1 improvised his statement.
18. In other words, even according to the present respondents, demolition of wall to convert the room and verandah into a big hall as RCT No. 30342/2016 M/s Alpha Agencies vs Nand Lal Virmani Page 15 of 21 pages well as demolition of latrine, removal of handpump and construction of mezzanine floor was carried out by the appellant way back in 1970s, which, according to the appellant, was on the basis of written consent Ex. AW 1/R1 of Sh. Basant Lal.
19. In any case, there is not even a whisper in the pleadings or evidence as to when the alleged damage and structural changes was carried out. This would be a crucial factor while examining the evidentiary value of photographs Ex.AW1/10 to Ex. AW1/19 on which heavy reliance was placed by the learned Additional Rent Controller in the impugned eviction order. There is no cogent evidence as to whether photographs Ex.AW1/10 to Ex. AW1/19 were clicked in the year 1999 in furtherance of order Ex.AW1/9 of the Civil Court or in the year 1975 prior to filing the previous eviction petition. There is no evidence that the photographs filed before the Civil Court in furtherance of order Ex. AW1/9 were the same photographs as Ex.AW1/1019. Besides, the alleged clicking of photographs to reflect the damage allegedly caused to the demised premises prior to filing of the suit Ex. AW1/7 has not been pleaded and it is not even disclosed as to who had clicked these photographs. Even negatives of the photographs were not produced before the court during trial. As mentioned above, the appellant has raised a specific contention that the photographs Ex. AW1/1019 pertain to the year 1973, regarding which a specific suggestion also was extended to AW1 in his cross examination dated 12.04.2005. In view of RCT No. 30342/2016 M/s Alpha Agencies vs Nand Lal Virmani Page 16 of 21 pages the said specific contention, it was incumbent upon the respondents to adduce some cogent evidence that Ex. AW1/1019 are the same photographs, which were filed in furtherance of order Ex. AW1/9 of the Civil Court in the previous suit.
20. Another piece of evidence relied upon by the present respondents against the appellant is the MCD Survey Report Ex. AW1/8. The said report was purportedly prepared on the basis of inspection conducted on 20.02.1974 and it reflected the extent of tenancy premises to be one hall of "12x20". But the said report was not proved in accordance with law by summoning the original records of MCD. Besides, the report also fails to inspire confidence since it reflects name of the tenant as Shri Nem Chand Jain, whereas by that time (20.02.1974) it is M/s Alpha Agencies, the appellant who had become tenant. Not only this, even the dimensions 12x20 of the hall are totally different from the dimensions recorded in all the site plans, filed by both sides.
21. Respondents also placed reliance on the architect report Ex. AW1/27, but that report also was not proved in accordance with law by summoning the architect into the witness box to stand the test of cross examination. Even in his testimony as AW1, the present respondent no. 1 did not explicitly state that the said report Ex. AW1/27 is the correct report. Further, the date of the report Ex. AW1/27 is 16.04.2002 whereas the inspection was allegedly carried out (according to first RCT No. 30342/2016 M/s Alpha Agencies vs Nand Lal Virmani Page 17 of 21 pages paragraph of the report) on 27.09.2001. There is not even a whisper of explanation for this delay of seven months in preparation of the said report. Admittedly, in the report Ex. AW1/27, there is no averment that the architect had earlier also inspected the demised premises and the same had been found in the position as alleged by the present respondents. The report Ex. AW1/27 also does not aver that the architect witnessed any ongoing construction activity. Also, there is nothing in the report Ex. AW1/27 to suggest if any scientific tools were used to access the age of the bricks and construction material. There is no objective data in the report Ex. AW1/27 which could serve as basis of the opinion given by the architect in the said report. Not only this, in his cross examination dated 03.09.2004, the present respondent no. 1 stated that the architect did not enter the premises prior to preparing the report Ex. AW1/27. That being so, it is not understandable as to on what basis the architect could aver in the report that a mezzanine floor was found constructed in the demised premises. In order to analyze all these points, the architect should have been summoned as a witness and failure to do reduces the report Ex. AW1/27 to trash.
22. Merely because in the previously filed suit Ex. AW1/7 the appellant failed to mention the existence of mezzanine floor and/or shutters, it cannot be assumed that the appellant admitted that at the time of filing the said suit, there was no mezzanine floor and/or shutters. In the case of Madhukar Rao Pimpalapure (supra), the Hon'ble Delhi RCT No. 30342/2016 M/s Alpha Agencies vs Nand Lal Virmani Page 18 of 21 pages High Court held that for a litigant to be held to have admitted to a factual position, it is essential that the said factual position should be the core issue in the suit. The previously filed suit Ex. AW1/7 was a suit for injunction seeking to restrain the present respondents from dispossessing the appellant from the demised premises without following due process of law. In the said suit, internal description of the suit property was certainly not a core issue. The core issue in that suit was as to whether the appellant had any right, title or interest in the premises in question. That being so, failure to mention the existence of mezzanine floor and/or shutters in the demised premises cannot be taken to be an admission of the appellant that at the time of filing that suit, the mezzanine floor and/or the shutters were not in existence and the same were constructed or added by causing damage subsequently.
23. Stand of the appellant that he did not carry out any structural changes or damage to the demised premises, except carrying out renovations on the basis of consent Ex. AW1/R1 of the landlord Shri Basant Lal cannot be rejected only because the cost of renovation was claimed to be Rs. 10,000/ in written statement Ex. AW1/4 filed in the previous eviction proceedings and Rs. 16,000/ in plaint Ex. AW1/7 of the subsequently filed suit. Incoherence of pleadings on such minor aspect cannot be given undue weight while analyzing the crucial matrix as set up by rival parties.
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24. Similarly, merely because the appellant did not reply to the legal notice allegedly issued on behalf of the present respondents prior to filing the eviction petition, the factual matrix set up by the respondents cannot be assumed to have been admitted to the effect that the alleged damage to the demised premises was done in the month of July 1999. In any case, in para 18(b) of the written statement, the appellant specifically pleaded having not received the alleged notice by way of registered post or any other manner. But despite such clear pleadings, followed by specific testimony to that effect in para 16 of the chief examination of RW1 Shri Yash Puri, partner of the appellant, the acknowledgment card of the notice allegedly signed on behalf of the appellant was not put to him in crossexamination by learned counsel for the present respondents. Not even a formal suggestion was extended in cross examination of RW1 that the notice was duly served on the appellant prior to filing of the eviction petition.
25. To summarize, the appellant set up a specific case that the demised premises were renovated by him at the time of inception of tenancy on the basis of written consent Ex. AW1/R1 of the landlord Shri Basant Lal and that the premises continue to be in same status; written consent Ex. AW1/R1 to renovate the demised premises is not in dispute; that being so, it was for the respondents to prove the extent of accommodation in the demised premises at the time of inception of tenancy in the year 1973 and the extent of damage or structural changes RCT No. 30342/2016 M/s Alpha Agencies vs Nand Lal Virmani Page 20 of 21 pages in the demised premises carried out by the appellant and the specific date or period during which the said damage was caused; but the respondents failed to prove as to what was the extent of accommodation in the demised premises in the year 1973 at the time of inception of tenancy and when and to what extent the damage to the demised premises was caused by the appellant. Therefore, the inquiry need not proceed further as to whether the alleged acts of the appellant diminished the value of the demised premises by causing material impairment in the value and/or utility of the premises.
26. In view of above discussion, I am unable to uphold the impugned order, so the same is set aside and appeal is allowed. Consequently, the eviction petition under Section 14(1)(j) of the Delhi Rent Control Act is dismissed.
27. A copy of this judgment be sent to the learned trial court along with trial court record, leaving the parties to bear their own costs.
28. File be consigned to records.
Announced in the open court on this 29th day of January, 2020 (GIRISH KATHPALIA) Digitally signed District & Sessions Judge (HQs) by GIRISH Tis Hazari Courts GIRISH KATHPALIA Delhi 29.01.2020 (a) KATHPALIA Date:
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