Delhi District Court
Sh. Amit Kashyap vs Sh. Hari Prakash Sharma on 16 July, 2014
IN THE COURT OF Ms. JYOTI KLER, ADDITIONAL SENIOR CIVIL JUDGE
CUMJUDGE SMALL CAUSE COURTCUM GUARDIAN JUDGE, SOUTH
EAST DISTRICT, SAKET COURT COMPLEX, NEW DELHI
CS No: 143/13
Case ID No. 02406C0092502013
IN THE MATTER OF :
Sh. Amit Kashyap
S/o Late Sh. Uday Pal,
R/o H.No. 120, Ground Floor,
Hari Nagar Ashram,
New Delhi - 110014. .....Plaintiff.
VERSUS
1.Sh. Hari Prakash Sharma S/o Late Sh. Mangat Ram, R/o H.No.91, Bhogal Road, Jangpura Bhogal, New Delhi - 110014.
2. Sh. Rajesh S/o Not known
3. Sh. Bilal S/o Not known
4. Sh. Ravi S/o Not known
5. Sh. Bilas S/o Not known All 2 to 5 R/o H.No.120, Upper Storey, Hari Nagar Ashram, New Delhi - 110014. .....Defendants CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 1/24 Date of Institution: 11.04.2013 Date of Final Arguments: 27.05.2014 Date of Judgment: 16.07.2014 Decision: Partly Decreed Suit for Permanent and Mandatory Injunction Judgment
1. Vide this judgment, I shall dispose off a Suit for Permanent and Mandatory Injunction instituted by Sh. Amit Kashyap (hereinafter referred as "the plaintiff") against Sh. Hari Prakash Sharma, (hereinafter referred as "the defendant No.1"), Sh. Rajesh (hereinafter referred as "the defendant No.2"), Sh. Bilal (hereinafter referred as "the defendant No.3"), Sh. Ravi (hereinafter referred as "the defendant No.4") and Sh. Bilas (hereinafter referred as "the defendant No.5") respectively and "the defendants" collectively.
2. Plaintiff allegedly is the tenant of defendant No.1. The alleged tenanted premises is bearing No. 120, ground floor, Hari Nagar Ashram, New Delhi 110014.
3. Facts averred in the plaint are as under:
(i) Grand father of the plaintiff namely Sh. Pritam Dass was inducted as tenant on 05.01.1955 by the father of defendant No.1 by way of oral tenancy. The tenanted premises consisted of two rooms, bath room and kitchen without water, electricity and latrine. Sh. Pritam Dass was also in use and enjoyment of the roof of the tenanted premises.
CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 2/24
ii) With efflux of time, other tenants were also inducted by the father of defendant No.1 in other portions of the tenanted premise.
iii) After the death of his father, defendant No.1 became landlord. Father of the plaintiff also inherited the tenancy after death of his grandfather and started paying rent to defendant No.1.
iv) After the death of father of the plaintiff, his mother and plaintiff inherited the tenancy. Plaintiff was minor at that time and hence his mother used to pay rent of the tenanted premises to the defendant No.1. A separate electricity meter is also installed in the tenanted premises in the name of father of the plaintiff.
v) Defendant No.1 started harassing the mother of the plaintiff on one pretext or the other in order to get the tenanted premises vacated and therefore mother of the plaintiff instituted a civil suit bearing No. 409/2002 which was partly decreed in her favour on 14.09.2005.
vi) After expiry of his mother, now, the plaintiff is paying rent to the defendant No.1 which he is not accepting and therefore plaintiff is depositing rent in the Court of Ld. Rent Controller. The tenanted premises is not in a habitable condition. Hence, plaintiff has also filed a petition under Section 44 and 45 of Delhi Rent Control Act.
CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 3/24
vii) In the year 2012, defendant No.1 raised two Barsati Rooms on the roof top of the tenanted premises. One of these rooms was rented out to the defendant No.2 and his family, and the second room was rented out to the defendant No.3, 4 and 5.
viii) Defendant No.1 instructed the other defendants to throw dirty water and to urinate on that portion of the roof which covers the tenanted premises thereby causing seepage and damage so that roof may fall any time and plaintiff is deprived of the tenanted premise.
ix) Plaintiff requested defendant No. 2 to 5 not to engage into such activities but they threatened him saying that they would not stop their misdeeds as the landlord i.e. defendant No.1 had directed them to do so.
x) Plaintiff approached the Police but no action was taken.
xi) Defendant No.1 also demolished some old structure existing behind the tenanted premises which caused cracks in the wall of the tenanted premises. He further put certain old bricks, bamboos and other retired karis, wooden gates, doors etc. on the roof of the tenanted premises in order to harass the plaintiff and block the drainage system so that dirty water may collect on the roof and cause damage to the tenanted premises.
xii) All requests of the plaintiff to remove the waste material CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 4/24 fell into deaf ears and defendant No.1 did not take any steps. Plaintiff lodged the complaint on 04.04.2013 in the office of DCP, Sarita Vihar but no action was taken by the Police.
xiii) Hence, the present Suit was instituted by the plaintiff.
4. Following prayers have been made by the plaintiff:
"i) Pass a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining them, their associates, representatives, agents, assignees, attorneys etc. from placing / putting waste building material including old bricks, old wooden karis, windows, bamboos, red stone slabs etc. by the defendant No.1 for causing damages to the roof and blocking the free flow of rainy water etc. from the roof portion of the plaintiff and also restrained the defendant No.2 to 5 from throwing the dirty water, garbage etc. and stop the urination done by them over the roof of the suit premises bearing No. 120, Hari Nagar Ashram, New Delhi - 110014, more specifically shown in green colour in the site plan annexed;
ii) Pass a decree of mandatory injunction whereby directing the defendant No.1, his associates, representatives, agents, assignees, attorneys etc. to remove the waste building material including old bricks, old wooden karis, windows, bamboos, red stone slabs etc. from the roof of the suit premises i.e. H.No. 120, Hari Nagar Ashram, New Delhi -
110014, more specifically shown in yellow color in the site plan attached, the defendant No.1 further be directed to repair the cracks caused by him by the demolition of the old structure situated adjacent to the suit premises;
iii) any other or further relief / reliefs which this Hon'ble Court may deem fit and proper may also be passed in favour of the plaintiff and against the defendants."
5. Summons of the Suit were issued to the defendants. Defendant CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 5/24 No. 1 appeared on 25.04.2013. Defendants No. 2 to 5 refused to accept the summons and therefore they were served by way of affixation. They failed to appear in the Court despite service by way of affixation and hence they were proceeded exparte vide order dated 08.07.2013.
6. Defendant No.1 filed his written statement wherein he claimed that the plaintiff is not a tenant in the alleged tenanted premises but an unauthorized occupant. Defendant No.1 admitted that alleged tenanted premises was given on rent to the grandfather of the plaintiff and the tenancy was inherited by his father and thereafter by his mother. It is alleged that the plaintiff was not residing in the suit premises at the time of death of his mother and therefore he was not entitled to inherit the tenancy but he illegally retained the possession of the tenanted premise. Preliminary objections pertaining to absence of locus standi and lack of cause of action were raised in the written statement by the defendant No.1. He further stated that the plaintiff had suppressed material facts from the Court and had not joined other legal heirs of Smt. Sem, his mother, as party in the present suit. It is also averred by the defendant No.1 that the suit is barred under Section 44, 45 and 50 of the Delhi Rent Control Act. Defendant No.1 further denied contents of the plaint by saying that he was neither engaged in causing damage to the roof of the tenanted premises nor had instructed defendant No. 2 to 5 to do so. He stated that defendant No. 2 to 5 are not known to him and he has not tenanted any portion of the property No. 120, Hari Nagar to them. Defendant No.1 filed certain photographs with his written statement showing his son standing with a newspaper and alleged that photographs clearly show that no structure exists CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 6/24 on the roof top and no waste material, as alleged, is lying.
7. In his replication, plaintiff alleged that he became joint tenant of the suit premises with his mother Smt. Sem after death of his father and he was residing with her till her death. He reiterated that the defendant No.2 to 5 are residing on the roof top of the tenanted premises, and relied on the photographs filed by him wherein two tin shed rooms have been shown on the roof of the tenanted premises. He also alleged that photographs filed by the defendant No.1 showing his son standing on the roof top of the tenanted premises are motivated and have been clicked in such a manner that the tin shed is not displayed. Plaintiff denied the contents of written statement and reiterated the contents of his plaint.
8. After completion of pleadings following issues were framed by Ld. Predecessor Court vide order dated 24.08.2013:
i) Whether the plaintiff is entitled for the decree of permanent injunction? OPP
ii) Whether the plaintiff is entitled for the decree of mandatory injunction? OPP
iii) Whether the plaintiff has no locus standi to file the present suit? OPD
iv) Whether the suit of the plaintiff is without any cause of action? OPD 1
v) Whether the suit of the plaintiff is bad for non joinder of necessary party? OPD
vi) Whether the suit of the plaintiff is barred under section 44, 45 & 50 of DRC Act? OPD 1
vii) Relief.
9. Parties were directed to lead evidence. Plaintiff examined himself as PW1 by way of affidavit Ex.P1. He also relied upon the following CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 7/24 documents:
i) Ex.PW1/1: Site plan of the tenanted premises.
ii) Mark X: Rent receipt dated 26.06.1976.
iii) Ex.PW1/3: Certified copy of judgment dated
14.09.2005.
iv) Ex.PW1/4 (colly): Digital photographs showing waste
material lying on the roof of the tenanted premises.
v) Ex.PW1/5: Copy of police complaint dated 04.04.2013.
vi) Ex.PW1/6: Digital photographs showing leakage in the roof top of the tenanted premises.
10. Certain documents were put to PW1 during cross examination which are as under:
i) Ex.PW1/DA: Site plan filed by the defendant No.1.
ii) Ex.PW1/DB (colly): Three photographs of the roof top of the tenanted premises filed by the defendant No.1.
iii) Mark PW1/DC: Copy of election ID Card of the plaintiff.
11. After completion of plaintiff's evidence, defendant No.1 examined himself as DW1 by way of affidavit Ex.DW1/A. He relied upon following documents:
i) Ex.PW1/DA: Site plan filed by DW1 along with written statement.
12. Following documents were put to him during cross examination:
i) Mark DW1/P1: Digital photograph of roof top of the tenanted premises.
ii) Mark DW1/P2: Legal notice dated 29.03.2012 sent by the defendant No.1 to the plaintiff and his sister. CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 8/24
iii) Mark DW1/3:Reply dated 13.04.2012 to the legal notice dated 29.03.2012.
13. After completion of evidence, final arguments were heard.
14. Ld. Counsel for the plaintiff has argued that plaintiff became tenant through inheritance and defendant No.1 became landlord through inheritance and hence question of unauthorized occupancy of the plaintiff does not arise. It was contended that the plaintiff has proved his case and therefore he is entitled to the relief claimed.
15. Ld. Counsel for the defendant No.1, on the other hand, contended that the plaintiff is not entitled to any relief as he is an unauthorized occupant.
16. I have considered the rival contentions and perused the record.
17. My issue wife findings are as under: Issue No. 3: Whether the plaintiff has no locus standi to file the present suit? OPD Issue No.4: Whether the suit of the plaintiff is without any cause of action? OPD 1
18. Onus to prove these two issues was put upon defendant No.1. He has averred that the plaintiff has no locus standi to file the present suit and he has filed it without any cause of action, as he is an unauthorized occupant and not a tenant in the suit premises. It is averred that it was the mother of the plaintiff who had inherited the tenancy from his father and the plaintiff was not residing with her but entered in the suit premises after her death to perform her last rites and thereafter remained in occupation without any authority from CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 9/24 defendant No.1.
19. These facts were completely denied by the plaintiff who averred that he inherited the tenancy along with his mother after the death of his father who in turn inherited the property from the grandfather of the plaintiff. The first landlord of the suit premises was father of defendant No.1. Both plaintiff and defendant No.1 inherited tenancy and landlordship by succession and survivorship.
20. The onus to prove this issue was upon defendant No.1. However, defendant No.1 did not lead any evidence to show that the plaintiff is a trespasser. He did not place on record any document suggesting that the plaintiff was not residing in the suit premises along with his mother and had entered there after the death of his mother. Suggestion to this effect given to the plaintiff / PW1 during his cross - examination were categorically denied by him. Defendant No.1 did not produce any alternative address of the plaintiff and no suggestion in this regard was given to the plaintiff / PW1 by the defendant No.1 during his cross examination.
21. On the other hand, in order to disprove the contentions of defendants No.1 and to prove his possession over the tenanted premise, plaintiff relied upon Mark PW1/DC which is a photocopy of his election identity card issued in the year 1996, original of which was produced and returned to him after comparison. Defendant No.1 suggested to the plaintiff that the election identity card Mark PW1/DC was forged and fabricated document which suggestion was denied by the plaintiff. Defendant No.1 did not reveal as to why he was alleging that the election identity card of the plaintiff was forged CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 10/24 and fabricated document. The plea, not being substantiated by defendant No. 1, is merely a bald plea and it cannot be considered to disbelieve Mark PW1/DC. The election identity card Mark PW1/DC was issued in favour of the plaintiff in the year 1996 i.e. much prior to the institution of the present suit and therefore cannot be called a self serving document.
22. Plaintiff / PW1 also relied upon the certified copy of judgment dated 14.09.2005 passed by Sh. Jitender Mishra, the then Ld. Civil Judge, in a suit instituted by the mother of the plaintiff against the defendant No.1 and his son. The judgment mentions at para No. 5 page 6 that the defendant No.1 had taken a plea in that court that his father had disclosed to him that all legal heirs of Uday Pal (deceased father of the plaintiff) had become tenant in the suit property. Plea taken by the defendant No.1 before the Court of Sh. Jitender Mishra, the then Ld. Civil Judge, is completely contrary to the plea taken by him in the present suit. In the earlier suit, defendant No.1 averred that the plaintiff inherited the tenancy jointly with his mother but he denied this fact before this Court. The admission of defendant No.1 in the earlier suit operates against him and he would be estopped from denying the said fact in the present suit by the Rule of Estoppel.
23. Even otherwise, the plea of defendant No.1 to the effect that the plaintiff could not inherit the tenancy as he was not staying with his mother at the time of her death, is also irrelevant because as per Section 2(l) of the Delhi Rent Control Act, 1958, the residence of the legal heir at the time of death of the tenant is relevant only in case of a tenant whose tenancy was terminated prior to his death which is not the case here. Tenancy of Uday Pal i.e. father of CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 11/24 the plaintiff was not terminated prior to his death. Therefore all his legal heirs inherited the tenancy rights, including his son, who is the plaintiff herein.
24. It is thus clear from Mark PW1/DC as well as Ex.PW1/3 that the plaintiff is not unauthorized occupant but he inherited the tenancy after the death of his father and therefore is a tenant of defendant No.1. Accordingly, he has locus standi to institute the present Suit.
25. Plea of cause of action is also a bald plea as the plaintiff has set out all the facts in his plaint showing right in his favour by virtue of tenancy and breach of that right by the defendants by creating nuisance and therefore has been able to establish a cause of action in his favour. No specific averments were raised by the defendant No.1 during the trial to show why plaintiff had no cause of action in his favour though the burden was upon him.
26. Issue No. 3 and 4 are therefore decided in favour of the plaintiff and against the defendants.
Issue No.5: Whether the suit of the plaintiff is bad for non joinder of necessary party? OPD
27. Onus to prove this issue was upon the defendants. Defendant No.2 to 5 are exparte. Defendant No.1 has averred that the plaintiff has not joined other legal heirs of his deceased mother in the present suit. Hence, suit is bad for non joinder of necessary parties.
28. In his replication, no specific reply was given by the plaintiff to the plea of non joinder of other legal heirs. However, plaintiff stated in his replication in reply to para No. 1 to 6 of the written statement that a notice was sent by the defendant No.1 seeking possession of the tenanted premises to CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 12/24 him and his sister which was duly replied by them. The said legal notice sent by the defendant No.1 is Mark DW1/P2 admitted both by PW1 and DW1 during their testimony and reply to the said notice is Mark DW1/P3 dated 13.04.2012 again admitted by PW1 as well as by DW1.
29. Defendant No.1 in his legal notice, which is Mark DW1/P2, stated in para No.4 that the sister of the plaintiff had left the matrimonial house in the year 1995 when she got married but later on she returned back to the tenanted premise. In his reply to the legal notice i.e. Mark DW1/P3 plaintiff admitted that his sister was residing in the tenanted premises at the time of reply but stated that she was staying their only as a family member.
30. The notice Mark DW1/P2 was sent by the defendant No.1 to the plaintiff and his sister only which leads to the presumption that there were no legal heirs of late Sh. Uday Pal and Late Smt. Sem. There is a clear admission on part of defendant No.1 that sister of the plaintiff did not stay in the tenanted premises after death of her mother as a tenant as she had got married and had left the premises in the year 1995 itself. PW1 was also cross examined by defendant No.1 on this aspect and he denied that his sister was residing with him in the suit premises as a tenant. He deposed voluntarily that his sister had got married and was residing separately in her matrimonial house. Defendant No.1 also put to the plaintiff that his sister had filed a case of wrongful possession against him and there was a compromise to the effect that she would be staying with him which fact was denied by the plaintiff. Defendant No.1 did not place on record any contrary document thereby disproving the denial of the plaintiff and hence it is apparent from the record CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 13/24 now that Smt. Neeta Kashyap, the only other legal heir of late Sh. Uday Pal apart from the plaintiff, is married and is staying in her matrimonial house and therefore is not an effected person with respect to the alleged incident of breach of right of the plaintiff and hence is not a necessary party to the present Suit. As per the facts proved on record she is not even staying in the tenanted premises and hence, the plea of defendant No.1 that she should also have been joined as a plaintiff is baseless and without merits.
31. Issue No.5 is accordingly decided in favour of the plaintiff and against the defendants.
Issue No.6: Whether the suit of the plaintiff is barred under section 44, 45 & 50 of DRC Act? OPD 1
32. Section 44 of Delhi Rent Control Act, 1958 reads as under: "44. Landlord's duty to keep the premises in good repair - (1) Every landlord shall be bound to keep the premises in good and tenantable repairs.
(2) If the landlord neglects or fails to make, within a reasonable time after notice in writing, any repairs which he is bound to make under subsection (1) the tenant may make the same himself and deduct the expenses of such repairs from the rent or otherwise recover them from the landlord:
Provided that the amount so deducted or recoverable in any year shall not exceed onetwelfth of the rent payable by the tenant for that year.
(3) Whether any repairs without which the premises are not habitable or usable except with undue inconvenience are to be made and the landlord neglects or fails to make them after notice in writing, the tenant may apply to the Controller for permission to make such repairs himself and may submit to the controller an estimate of the cost of such repairs, and, CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 14/24 thereupon,the controller may, after giving the landlord an opportunity of being heard and after considering such estimate of the cost and making such inquiries as he may consider necessary, by an order in writing, permit the tenant to make such repairs at such cost as may be specified in the order and it shall thereafter be lawful for the tenant to make such repairs himself and to deduct the cost thereof, which shall in no case exceed the amount so specified, from the rent or otherwise recover it from the landlord:
Provided that the amount so deducted or recoverable in any year shall not exceed onehalf of the rent payable by the tenant for that year:
Provided further that if any repairs not covered by the said amount are necessary in the opinion of the controller, and the tenant agrees to bear the excess cost himself,the Controller may permit the tenant to make such repairs."
33. Section 45 of Delhi Rent Control Act 1958 reads as under:
"45. Cutting off or withholding essential supply or service
- (1) No landlord either himself or through any person purporting to act on his behalf shall without just and sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the premises let to him.
(2) If a landlord contravenes the provisions of subsection (1), the tenant may make an application to the Controller complaining of such contravention.
(3) If the Controller is satisfied that essential supply or service was cut of or withheld by the landlord with a view to compel the tenant to vacate the premises or to pay an enhanced rent, the Controller may pass an order directing the landlord to restore the amenities immediately, pending the inquiry referred to in subsection (4).
Explanation - An interim order may be passed under this subsection without giving notice to the landlord. (4) If the Controller on inquiry finds that the essential supply or service enjoyed by the tenant in respect of the premises was CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 15/24 cut off or withheld by the landlord without just and sufficient cause, he shall make an order directing the landlord to restore such supply or service.
(5) The Controller may in his discretion direct that
compensation not exceeding fifty rupees
(a) be paid to the landlord by the tenant, if the
application under subsection (2) was made frivolously or vexatiously;
(b) be paid to the tenant by the land, if the landlord had cut off or withheld the supply of service without just and sufficient cause.
Explanation I - In this section, "essential supply or service" includes supply of water, electricity, lights in passage sand on staircases, conservancy and sanitary services.
Explanation II - For the purposes of this section, withholding any essential supply or service shall include acts or omissions attributable to the landlord on account of which the essential supply or service is cut off by the local authority or any order competent authority."
34. Section 50 of Delhi Rent Control Act 1958 reads as under: "50. Jurisdiction of civil courts barred in respect of certain matters - (1) Save as otherwise expressly provided in this Act, no civil court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant therefrom or to any other matter which the Controller is empowered by or under this Act to decide, and no injunction is respect of any action taken or to be taken by the Controller under this Act shall be granted by any civil court or other authority.
(2) If, immediately before the commencement of this Act, there is any suit or proceeding pending in any civil court for the eviction of any tenant from any premises to which this Act applies and the construction of which has been completed after CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 16/24 the 1st day of June, 1951, but before the 9 th day of June, 1955, such suit or proceeding shall, on such commencement abate.
(3) If, in pursuance of any decree or order made by a court, any tenant has been evicted after the 16th day of August, 1958, from any premises to which this Act applies and the construction of which has been completed after the 1st day of June 1951, but before the 9th day of June, 1955, then, notwithstanding anything contained in any other law, the Controller may, on an application made to him in this behalf by such evicted tenant within six months from the date of eviction, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit.
(4) Nothing in subsection (1) shall be construed as preventing a civil court from entertaining any suit or proceeding for the decision of any question of title to any premises to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such premises."
35. Burden to prove this issue was upon defendant No.1 who has alleged that all the reliefs claimed in the present suit could have been claimed by the plaintiff before the Ld. Rent Controller. The prayers of the plaintiff have already been mentioned in Para No. 3 of the judgment. Plaintiff is seeking permanent and mandatory injunction. He is seeking permanent injunction against defendant No.2 to 5 to the effect that they do not spill out dirty water on the roof of the tenanted premises. The mandatory injunction has been sought against defendant No.1 seeking direction to the effect that he should remove waste material from the roof top and should carry out repairs of the tenanted premises.
36. Section 50 of the Delhi Rent Control Act, 1958 bars institution of only such Suit in the civil court which involves an issue to be decided by the CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 17/24 Ld. Rent Controller. However, an issue which is out of the preview of Delhi Rent Control Act, 1958, a Civil Suit can be instituted. Ld. Rent Controller is not entitled to grant injunction of the nature claimed in the present suit and therefore, the present suit, to the extent of relief of mandatory and permanent injunction, is not barred.
37. However, in the garb of mandatory injunction, plaintiff is also seeking directions to the defendant No.1 to the effect that he be asked to repair the tenanted premises. Plaintiff can seek such a relief under Section 44 and Section 45 of Delhi Rent Control Act, 1958 before the Ld. Rent Controller and a Suit in this respect shall be barred under Section 50 of the said Act.
38. Accordingly, the present suit is barred to the extent of the prayer clause seeking direction to the defendant No.1 to carry out repairs in the tenanted premises. However, Rent Controller is not empowered to decide rest of the issues involving grant of permanent and mandatory injunction and therefore, the present suit is not completely barred by Section 50 of the Delhi Rent Control Act, 1958. Issue No.6 is therefore decided partly in favour of the defendant No.1 and partly in favour of the plaintiff.
Issue No. 1: Whether the plaintiff is entitled for a decree of permanent injunction? OPP
39. Onus to prove this issue was upon the plaintiff. The plaintiff has alleged that defendant No. 2 to 5 are throwing dirty water and garbage on the roof top of the tenanted premise. They also urinate there at the instance of defendant No.1. The defendant No.1 is putting waste building material on the roof top of the tenanted premises which is blocking the drainage of rainy water CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 18/24 thereby causing seepage in the roof.
40. Defendant No. 2 to 5 were proceeded exparte and defendant No. 1 denied the allegations raised against him. It is the case of defendant No. 1 that the plaintiff is not entitled to the roof of the tenanted premises as it was never a part of the tenancy. Plaintiff has alleged otherwise.
41. In order to prove his case that the defendant No.1 is putting waste material on the roof of the house and defendant No. 2 to 5 are throwing dirty water, the plaintiff relied upon certain photographs which are Ex.PW1/4 (colly) and Ex.PW1/6 (colly). He has also relied upon the complaint lodged by him before DCP (South East) dated 04.04.2013 which is Ex.PW1/5. Both the parties i.e. plaintiff and defendant No.1 also filed site plan of the suit property. The site plan filed by the plaintiff is Ex.PW1/1 and the site plan filed by the defendant No.1 is Ex.PW1/DA. Possession of the plaintiff was admitted over two rooms on ground floor and both rooms are shown in green colour in Ex.PW1/1 and in orange colour in Ex.PW1/DA. However, in his site plan, plaintiff also claimed possession of the roof top of 2 rooms which is shown in yellow colour in his site plan. Defendant No.1 denied that the plaintiff was in possession of yellow colour portion in the site plan Ex.PW1/1.
42. Be that as it may, the case of the plaintiff is that the defendant No.1 is putting waste building material over the yellow portion of Ex.PW1/1. Ex.PW1/4 (colly) and Ex.PW1/6 (colly) filed by the plaintiff clearly show that waste construction material including bricks, bamboos, broken wooden doors etc. are lying on the roof top shown in yellow colour in the site plan Ex.PW1/1. Defendant No.1 produced the photographs Ex.PW1/DB (colly) which are 3 in CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 19/24 number wherein the son of defendant No.1 is seen standing with a newspaper to show that there was no construction material on the roof top. DW1, at the time of recording of his testimony, deposed that the photographs Ex.PW1/6 (colly), Ex.PW1/4 (colly) and Ex.PW1/DB (colly) are of the different properties. He deposed that the roof top shown in Ex.PW1/DB is that of the suit property and he was unable to corelate the roof top in Ex.PW1/4 or Ex.PW1/6 (colly). The photograph Mark DW1/P1 was also put to him which he refused to identify and stated that it was not of the suit property.
43. Apart from the photographs no other documents were placed on record to show that there was any encroachment upon the roof top of the suit premises by the defendant No.1 by putting waste material.
44. Plaintiff has prayed for injunction to the effect that the defendant No.1 may not put waste material on the roof top in future and defendant No.1 has no right to the roof top. There is no material on record to suggest whether the roof top was part of the tenanted premises or not. However, condition of the roof top effects the right of the plaintiff directly as it interferes with his enjoyment of the tenanted premises. The plaintiff is entitled not only to stay in the four walls but also has to have protection of the roof without which the tenanted premises would be of no use. Any interference by the defendant No. 1 which leads to damage in the roof top and thereby effects the quality of the tenanted premises would directly effect the right of the plaintiff to enjoy the tenanted premises even though he was not entitled to or was not in possession of the roof top. Therefore, plea of the defendant No.1 to the effect that the roof top of the tenanted premises was never given on rent to the plaintiff is without CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 20/24 merit and does not entitle the defendant No.1 to cause damage and thereby effect right of the plaintiff to enjoy his premises.
45. Defendant No.1 categorically denied that any waste construction material is lying on the roof top which fact is contrary to the photographs Ex.PW1/4 and Ex.PW1/6 (colly). Defendant No.1 also produced the photograph Ex.DW1/DB (colly) to show that the roof top was clean. However, when the photographs filed by the plaintiff was put to him he denied that the photographs were of the suit property. The denial of defendant No.1 is evasive and without any reason as to why he says so. A bare comparison of Ex.PW1/6 and Ex.PW1/4 with Ex.PW1/DB (colly) shows that all the photographs are of the same roof top and suggestion was given to PW1 during his cross examination to the effect that photographs Ex.PW1/DB were taken after institution of the suit which was admitted by him. He also stated that the photograph Ex.PW1/4 and Ex.PW1/6 were taken before institution of the suit and the defendant No.1 removed the material after institution of the suit and took photograph of a very small portion of the roof top in order to mislead the Court. During the cross examination of DW1, another photograph Mark DW1/P1 was put to him which was denied by the defendant No.1 again. The said photograph if compared to Ex.PW1/DB (colly) makes it clear that it is of the same property i.e. suit property. Defendant No.1 cleared only a small portion of the roof showing it clean but the complete photograph shows that debris is still lying on the roof top. A small portion of the debris containing stone sheet etc. can be seen in Ex.PW1/DB as well and it is clear that debris was moved to the side in order to take photograph to show that the roof top CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 21/24 was clean which was not the correct fact. Further, from Ex.PW1/DB (colly) it is clear that the water is being thrown on the roof top as there are water marks present.
46. The photographs thus prove the case of the plaintiff to the effect that there is waste material on the roof top and that water is being thrown deliberately. Defendant No.1 took a plea that he has not inducted any tenant much less defendant No. 2 to 5 on the roof top but Ex.DW1/P1 shows two tin sheds and certain persons on the roof top. Defendant No.1 deposed during his cross examination that defendant No.2 to 5 may have been implanted by the plaintiff on the roof top in order to make out a case against him. However, even after becoming aware of such a situation, defendant No.1 strangely did not take any action as per law against the plaintiff or such unauthorized occupants on the roof top of the house. There is no plea by the defendant No. 1 to the effect that he has initiated any action after becoming aware of any unauthorized occupancy. Defendant No.1 further deposed that there is no staircase leading to the roof top of the tenanted premises and therefore roof cannot be tenanted to anyone. He stated that there is no way to approach the roof top but he failed to explain as to how his son is seen standing on the roof top in Ex.PW1/DB (colly).
47. Evasive and misleading reply of DW1 makes him unworthy of reliance. Oral testimony of DW1 is contrary to the documents placed on record. The testimony of DW1 is therefore not reliable and cannot be considered to decide the issue. On the other hand, testimony of plaintiff is well supported by the documents placed on record i.e. photographs filed by the CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 22/24 plaintiff as well as by the defendant No.1. There is debris seen on the roof top of the tenanted premises, there are two tin shed rooms occupied by some persons and there are marks of spilled water on the roof top which clearly leads to the inference that the facts averred by the plaintiff are true and correct.
48. Therefore, in my considered view, the plaintiff has proved his case to the effect that defendant No.1 is engaging in putting waste construction material on the roof top and defendant No.2 to 5 are urinating on the roof top and spilling dirty water. Defendant No.2 to 5 did not appear to contest the case of the plaintiff and hence the testimony of the plaintiff qua them has gone unrebutted and unchallenged.
49. Waste construction material is being put on the rooftop and it is blocking the drainage system thereby causing hindrance to the enjoyment of the tenanted premises by the plaintiff to which the plaintiff has a right to enjoy. As defendants are causing interference in the right of the plaintiff to enjoy the property, plaintiff is entitled to permanent injunction, as prayed. Issue is therefore decided in favour of the plaintiff and against the defendants.
Issue No. 2: Whether the plaintiff is entitled for a decree of mandatory injunction? OPP
50. Burden to prove this issue was upon the plaintiff. As discussed above, plaintiff has been able to show that defendant No.1 has placed waste construction material on the roof top which is causing seepage in the rooftop of the tenanted premises and thereby effecting the right of the plaintiff to enjoy it. Hence, plaintiff is entitled to mandatory injunction but only to the extent of CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 23/24 removal of waste building material. He is not entitled to the mandatory injunction to the effect of repairing of the roof top as tenancy falls under Delhi Rent Control Act, 1958 hence remedy is available under Section 44 and 45 of the said Act. The issue is accordingly partly decided in favour of the plaintiff and against the defendants.
Relief
51. Resultantly, Suit of the plaintiff is partly decreed. The defendant No.1, their associates, representatives, agents, assignees, attorneys etc. are hereby restrained from placing /putting waste building material including old bricks, old wooden karis, windows, bamboos, red stone slabs etc. on the roof top and blocking the free flow of rainy water etc. and defendant No.2 to 5 are hereby restrained from throwing the dirty water, garbage etc. and stop the urination done by them over the roof of the suit premises bearing No. 120, Hari Nagar Ashram, New Delhi110014, shown in green and yellow colour in the site plan Ex.PW1/1, which shall form a part of the decree. Defendant No.1 is further directed to remove old bricks, old wooden karis, windows, bamboos, red stone slabs etc. from the roof top of property bearing No. 120, Hari Nagar Ashram, New Delhi - 110014, shown in yellow colour in Ex.PW1/1. No order as to cost.
52. Decree sheet be prepared. File be consigned to Record Room.
Announced in the open court
on 16.07.2014 (JYOTI KLER)
ASCJ/JSCC /Gdn.JUDGE
SOUTHEAST, SAKET COURTS, NEW DELHI
CS 143/13 Sh. Amit Kashyap Vs. Sh. Hari Prakash Sharma 24/24