Delhi District Court
Shri Sri Kishan Dass vs Smt. Gindori Devi on 31 January, 2009
-: 1 :- R-171/06
IN THE COURT OF SHRI VIDYA PRAKASH
ADDITIONAL SENIOR CIVIL JUDGE DELHI
RCA 171/06
Shri Sri Kishan Dass,
S/o Late Sh. Hari Ram
R/o House No. 101,
Jatwara, Teliwara, Pul Mithai,
Delhi-06. .........Appellant
Versus
1. Smt. Gindori Devi
W/o Shri Ram Dhan Sharma,
R/o House no. 116,100,
Jatwara, Pul Mithai
Delhi-06.
2.Shri Ram Dhan Sharma,
S/o Sh. R.D Sharma,
R/o House no. 116,100,
Jatwara, Pul Mithai,
Delhi-06.
........Respondents
APPEAL AGAINST THE IMPUNGED ORDER DATED
22.7.06 PASSED BY SHRI DEVENDER KUMAR
SHARMA, LD, CIVIL JUDGE, IN SUIT NO. 646/02/93
TITLED AS "SHRI SRI KISHAN DASS VS. SMT
GINDORI DEVI & ANR."
DATE OF INSTITUTION OF APPEAL :28.08.2006
JUDGMENT RESERVED ON :20.01.2009
JUDGMENT DELIVERED ON :31.01.2009
-: 2 :- R-171/06
J U D G M E N T :-
The short question which arises for consideration in the present appeal is as to whether suit for permanent injunction filed by a tenant against the landlord seeking restraint from interfering in carrying out repairs of the tenanted premises is barred by Section 50 of DRC Act or not.
Arguments on the appeal have already been heard on behalf of appellant as well as respondents. I have also carefully perused the material available on record including the trial Court record.
Brief facts relevant for deciding the present appeal are that appellant who is plaintiff before the Trial Court, filed suit for permanent injunction against the defendants/respondents on the averments that plaintiff alongwith Lala Hari Ram are the tenants under Sh Inderjit Singh son of late Sh. Rishal Singh in respect of property no. 100 Jatwara, Pul Mithai, Delhi on monthly rent of Rs. 40/-. Defendant no. 1 / Respondent no. 1
-: 3 :- R-171/06 also filed petition U/s 14 (1) (e) of DRC Act for eviction against the appellant/plaintiff. It was claimed before Trial Court that the suit premises are in dilapidated condition and required immediate repair. Plaintiff/appellant requested MCD for grant of necessary permission to carry out the repairs but no action was taken on which he tried to carry out the repairs of the suit premises for which purpose he collected building material on 18.12.93 but defendants/respondents have been causing interference despite the fact that he has got right to carry out the repairs as the tenanted portion is old one and is in dilapidated condition. On such averments, he sought restraint against the defendants/respondents from interfering/objecting in repairing of the floor, walls, terrace etc of the suit premises.
Respondents no. 1 and 2, in their joint written statement, took the objection that present suit is not maintainable under the law. It is further claimed that respondent no. 1 / defendant no. 1 purchased the suit
-: 4 :- R-171/06 property from Sh. Inderjeet Singh vide registered sale deed dated 16.04.1975. The remaining defence taken by them on merits, is not being discussed herein as same is not relevant for the purpose of deciding the present appeal.
Although the pleadings were completed and issues were also framed by Trial Court on 14.3.02 and also on 09.2.04, defendants/respondents moved an application U/s 50 DRC Act r/w order 14 rule 2 CPC at the stage of their own evidence. The said application was allowed by Ld Trial Court and the suit was held to be barred by Section 50 of DRC Act. Consequently, the plaint was rejected resulting into filing of the present appeal.
Ld Counsel for appellant had argued that the tenant has right to file civil suit for injunction when he is not seeking adjustment of the cost of carrying out the repairs in the tenanted premises from the rent and therefore, section 44 of DRC Act is not applicable herein.
-: 5 :- R-171/06 He had further argued that jurisdiction of Civil Court is barred by Section 50 of DRC Act only when tenant is coming to the Court seeking permission to carry out repairs of the tenanted premises at the cost of landlord by way of adjustment in the rent. In support of his submission, he had relied upon judgment of our own High Court in the matter of " Phelps & Company Vs. Shalimar Paints, NDMC" reported in 1980 RLR 646.
On the other hand, Ld counsel for respondents/defendants had strongly relied upon proviso to Section 44 (3) of DRC Act in support of his submissions that tenant can seek permission to carry out the repairs of the tenanted premises even at his own cost from the Court of Rent Controller U/s 44 (3) of DRC Act. Another bone of contention raised by Ld counsel was that DRC Act is a complete code in itself and provides exhaustive remedies. Therefore, jurisdiction of Civil Court is barred by Section 50 of DRC Act. To buttress his submission, he had relied upon the celebrated judgment
-: 6 :- R-171/06 of Hon'ble Apex Court in "Dhula Bhai & Ors. Vs. State of M.P and Anr." reported in ( 1968) 3 SCR 662.
Section-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 sub section(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 one- twelfth of the rent payable by the tenant for that year.
(3) Where 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
-: 7 :- R-171/06 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, 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 one-half 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
-: 8 :- R-171/06 bear the excess cost himself, the Controller may permit the tenant to make such repairs."
As is evident from the perusal of Section 44 of DRC Act as reproduced hereinabove, it is only in such eventuality where tenant is seeking to recover cost of repair from the rent, he can approach Rent Controller under the said Act. The argument raised by Ld. Counsel for respondent that even if the cost of repairs comes out to more than six months' rent, still tenant can approach the Rent Controller by virtue of second proviso of Section 44 (3) of DRC Act, appears to be totally misplaced. The careful perusal of the Section 44 (3) of DRC Act goes to show that it is only when the cost of repairs is expected to be equivalent to rent for more than six months and the tenant is seeking recovery of cost by way of adjustment from six months' rent and agreeing to bear the remaining cost then such permission may be granted by the Rent Controller.
The authority relied upon on behalf of appellant in the matter of "Phelps & Company" mentioned supra,
-: 9 :- R-171/06 is squarely applicable to the facts herein. It has been held by our own High Court in the said judgment as under :
"6. The repairs in the present case, such as the proposed replacement of the roof, are almost certainly likely to exceed more than one month's rent, and probably, even more than a year's rent. This is a mere estimate by myself keeping in view the present cost of construction and the other rents in the Connaught Place area. In any case, here the landlord did not carry out the repairs after due notice, so the tenant is entitled to carry out the repairs under Section 44 (2). If he does carry on these repairs, he can deduct not more than one month's rent at his expense. He could also apply U/s 44 (3) to the Controller and in that case he might have got an order allowing him to deduct six months' rent. It is for the tenant to choose which is
-: 10 :- R-171/06 the preferable method for effecting the repairs.
7. If the repairs are really urgent, it would seem that the method of moving the Controller will delay the matter because the decision of the Controller is bound to take time. To my reading, Section 44 (2) allow the tenant to make these repairs if the landlord neglects to make repairs. Of course, this does not mean that tenant can make any repairs he likes and change the house by making unauthorised construction and saying they are repairs. ......................................................"
Our own High Court in subsequent decision in the matter of "Mahabir Vs. Vijay Kumar & Anr." reported in 1996 RLR (Note) 11 again had the occasion to consider the same question as to whether tenant is entitled to repair the tenanted premises without resorting to Section 44 of DRC Act by way of civil suit or not. In the said judgment also, it was held as under :-
-: 11 :- R-171/06 "...................A tenant may have recourse to S.44 only if he wants costs of repairs. Appellant has every right to make the premises habitable but in doing so he must not damage or alter the premises. Identical question arose in "Sawan Education Trust Vs. Lt. Gov. 1986". RLR (NSC) 2, in which allotment was cancelled and still allottee was allowed to raise construction but at his own risk. In this case, appellant may do necessary repairs at his own costs and risk."
The perusal of the impugned order passed by Ld. Trial Court shows that the authority relied upon on behalf of appellant / plaintiff appears to have not been appreciated in correct perspective. It is one thing to hold as to whether tenant can file civil suit for injunction for carrying out repairs of the tenanted premises and as to whether bar of Section 50 of DRC Act is attracted or not and it is different thing to hold that there is no pleading that any notice for repair has ever been given to the respondent / defendant as per case of appellant /
-: 12 :- R-171/06 plaintiff in the plaint. Ld. Trial Court may come to the conclusion on merits after having the entire material including the evidence before it that appellant / plaintiff failed to prove the case on merits or failed to make out the case for civil suit by not fulfilling the necessary requirements enabling him to file civil suit for injunction but it was not proper to hold that the jurisdiction of civil court is barred by Section 50 of DRC Act simply because appellant / plaintiff failed to mention in the plaint that notice for repair was given to the respondent / defendant or that he failed to show that repairs sought to be carried out were of urgent nature.
The reliance placed by Ld. Counsel for respondents on Dhulabhai's case referred supra, is of no use as said authority is not applicable to the facts and circumstances of present case. In the said authority, the general principle of law has been laid down by Hon'ble Apex Court that where statute gives a finality to the orders of the Special Tribunals, Civil Court's jurisdiction
-: 13 :- R-171/06 must be held to be excluded. It no where lays down that jurisdiction of Civil Court is completely barred or taken away once special statute is enacted despite the fact that the relief sought by the plaintiff in the Civil Suit does not fall within the ambit of the provisions of such Special Statute.
In the light of the aforesaid discussion, this Court is of the view that the impugned order dated 22.07.2006 passed by Ld. Trial Court is not in confirmity with law and is liable to be set aside. Accordingly, I hereby accept the appeal and the impugned order dated 22.07.2006 is set aside. It is held that Civil Court has got jurisdiction to try the present suit. However, it shall be open to the Ld. Trial Court to decide the suit on merits and without being swayed by any observation made by this Court. There shall be no order as to cost. Decree sheet be prepared accordingly. Both the parties are directed to appear before Ld. Trial Court / Successor Court on 09.02.2009.
-: 14 :- R-171/06 Trial Court shall proceed with the matter form the stage where it was at th e time of rejection of the suit. Copy of this order as well as Trial Court Record be sent immediately to the concerned Trial Court / Successor Court. Appeal file be consigned to Record Room.
Announced in the Open Court (VIDYA PRAKASH)
on this 31st January, 2009 ADDL. SR. CIVIL JUDGE
DELHI
-: 15 :- R-171/06
R-171/06
31.01.2009
Present: None for the parties.
Vide separate order of the even date, appeal has been accepted and the impugned order dated 22.07.2006 has been set aside. Decree Sheet be prepared accordingly. Both the parties are directed to appear before Ld. Trial Court / Successor Court on 09.02.2009. Copy of this order as well as Trial Court Record be sent immediately to the concerned Trial Court / Successor Court. Appeal file be consigned to Record Room.
(Vidya Prakash) ASCJ/Delhi