Delhi District Court
Girish Kumar Aggarwal vs . Anjula Rani on 22 March, 2013
Girish Kumar Aggarwal Vs. Anjula Rani
IN THE COURT OF SH. VISHAL GOGNE,
ACJCCJARC(EAST), KARKARDOOMA COURTS, ELHI
Suit No.: 69/11
Case ID No.: 02402C0116402011
Girish Kumar Aggarwal
S/o Late Sh. Damodar Dass
R/o 350, Anaj Mandi,
Shahdara, Delhi32. ... Plaintiff
VERSUS
Anjula Rani
W/o Sh. Ajay Kumar
R/o 3/128, Gali Ganga Ram,
Shahdara, Delhi110032. .... Defendant
DATE OF INSTITUTION : 19.04.2011
DATE OF RESERVING THE ORDER : 20.03.2013
DATE OF DECISION : 22.03.2013
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
1. The plaintiff is the tenant of the defendant in the suit Suit No.69/11 Page No. 1/10 Girish Kumar Aggarwal Vs. Anjula Rani property bearing no. 350, Anaj Mandi, Shahdara, Delhi32. The prayer in the suit relates to a restraint upon the defendant from interference in the repairs of the suit property to be carried out by the plaintiff.
2. The defendant did not file the written statement despite opportunity granted by the court and the Ld. Predecessor Court closed the opportunity of the defendant for filing the same.
3. Subsequently, applications moved by the defendant under order 8 rule 1A and under order 9 rule 7 CPC, were dismissed.
4. Issues were not framed in the present trial.
5. The defendant nevertheless joined proceedings and crossexamined the two witnesses for the plaintiff viz the plaintiff himself (PW1) and PW2, who prepared an inspection report of the suit property.
6. The Ld. Counsel for the plaintiff submitted during final arguments that there being no written statement/defence of the defendant on record, the contents of the plaint remained undisputed and hence ought to be treated as admitted by the defendant.
7. The Ld. Counsel for the plaintiff argued that as a result of the non reply to the plaint, the following facts stood unrebutted:
The tenancy of the plaintiff, the dilapidated condition of the suit property viz major and minor cracks, broken condition of wooden Suit No.69/11 Page No. 2/10 Girish Kumar Aggarwal Vs. Anjula Rani beams due to ants, the necessity for installation of an iron girder, two brick pillars, water proofing, replacement of a door, covering of a drain, plastering of the premises and the inspection report Ex. PW1/G depicting the above damage and estimated expenditure of Rs. 70,000/ towards repairs of the same.
8. It was also submitted that these aspects had been proved through the affidavit in evidence of PW1 and PW2 alongwith averments regarding the dispatch of the legal notice dated 12.10.10 Ex. PW1/B and its reply sent by the defendant(Ex. PW1/F). The counsel agitated that the landlord had failed to ensure repair of the suit property despite intimation by the plaintiff through the above notice and had instead sent a frivolous reply.
9. The Ld. Counsel for the plaintiff lastly submitted that the plaint and affidavit in evidence of PW1 recorded the specific assertion that the defendant had prevented the repairs of the premises by the plaintiff on 10.01.11. It was thus agitated that the plaintiff was entitled to a decree of permanent injunction restraining the defendant from interfering in the repair of the tenanted premises.
10. In response, the Ld. Counsel for the defendant first raised an objection regarding the jurisdiction of this court i.e. the court of Suit No.69/11 Page No. 3/10 Girish Kumar Aggarwal Vs. Anjula Rani civil jurisdiction on the basis of section 50 of the Delhi Rent Control Act, 1958(hereafter referred to as the Act). It was submitted that the civil court could not exercise jurisdiction in light of section 44 of the Act which entitled the tenant(plaintiff) to approach the court of the Rent Controller for permission to carry out repairs upon purported failure of the landlord (defendant) to ensure the same. The argument of the defendant essentially was that in light of a complete code being provided interalia section 44 to redress the grievance of a tenant, the present plaintiff could not have maintained the present suit for permanent injunction.
11. The second leg of the defence was that what the plaintiff intended was not repair but fresh construction in the suit property and that this could not be permitted even within the ambit of the Act. The Ld. Counsel for the defendant relied upon the crossexamination of the plaintiff(PW1) in this context. It was pointed out that PW1 had admitted that the roof of the property was likely to collapse if an iron girder and two brick pillars were not installed. Reference was also made to the crossexamination of PW2 who similarly projected the necessity of installing an iron girder and brick pillars in the property. The counsel in effect argued that the plaintiff wanted to usurp the suit property in the garb of repair whereas the said property was more than 80 years old by the own admission of the plaintiff Suit No.69/11 Page No. 4/10 Girish Kumar Aggarwal Vs. Anjula Rani during crossexamination.
12. The court has considered the plaint and deposition of PW1 & PW2.
13. Undoubtedly, there are no pleadings and hence no defence on merits on record on behalf of the defendant. Since the written statement was not filed, the defendant cannot claim the benefit of denial of any averment made by the plaintiff only on the basis of oral arguments. Yet, decision upon trial rests on evidence and not averments alone. The plaintiff cannot claim the relief prayed for as a matter of right only because the defendant did not have a defence on record. Resultantly, the evidence led by PW1 and PW2 is relevant.
14. Before proceeding to the evidence at hand, attention must be focused on the question of law raised by the Ld. Counsel for the defendant. Section 50(1) of the Act may be noted:
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 in 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.
15. It is apparent from a bare reading of this provision that Suit No.69/11 Page No. 5/10 Girish Kumar Aggarwal Vs. Anjula Rani a civil court cannot entertain a suit with respect to any matter within the jurisdiction of the Rent Controller. No injunction would be maintainable in respect of any action by a Civil Court when such action could be taken by the Court of Rent Controller.
16. Section 44 may also be perused:
44(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) 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 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 marking 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:Suit No.69/11 Page No. 6/10
Girish Kumar Aggarwal Vs. Anjula Rani 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.
17. The court finds itself in agreement with the submission of the Ld. Counsel for the defendant on the aspect of lack of jurisdiction in this court when seen in reference to Section 44 of the Act especially sub section (3). The said provision is explicit in first casting a duty upon the landlord to keep the premises in a good condition of repair and then permitting the tenant to deduct the expenses of repairs from rent if the landlord fails to make the necessary repairs upon notice in writing. The Act then permits interalia sub section (3) that the tenant may move before the Rent Controller for liberty to make repairs where the premises are not habitable without undue inconvenience and the landlord fails to cause the repairs. It is certainly the mandate of the law that a Civil Court not try a matter within the mandate of the Rent Controller. Repair of tenanted premises is one such matter by virtue of section 44 of the Act.
18. Seen in the above scenario, the evidence led by the Suit No.69/11 Page No. 7/10 Girish Kumar Aggarwal Vs. Anjula Rani plaintiff operates against him. PW1 deposed in his affidavit in evidence that the suit property was in a deteriorated condition including major and minor cracks, damage to wooden beams, the necessity for installation of an iron girder and two brick pillars apart from necessity to ensure water proofing of the roof, replacement of a door, covering of a drain and plastering of the premises.
19. The above description of the suit property only made out a case for proceeding under section 44 of the Act. That the suit property was seemingly so damaged only pointed towards the applicability of section 44 of the Act. In light of the clear bar of section 50 of the Act, this court is not empowered to consider any matter related to the repair of tenanted premises falling within the ambit of the Delhi Rent Control Act. The monthly rent of the suit property is Rs. 96.55paise(as admitted by the plaintiff in his examination under order 10 rule 2 sub rule 2 CPC). Consequently, the appropriate remedy before the plaintiff was to file a petition under section 44 of the Act and not file a suit for permanent injunction seeking a restraint upon the defendant from preventing repairs. Infact, the present suit appears to be designed to circumvent the said provision. Rather than enabling the competent authority viz the Rent Controller to consider directions/permission for repair, the plaintiff denied Suit No.69/11 Page No. 8/10 Girish Kumar Aggarwal Vs. Anjula Rani the opportunity of being heard on such permission to the defendant and instead proceeded to pray for an injunction. The court finds the suit to be not maintainable in light of section 50 read with section 44 of the Delhi Rent Control Act, 1958.
20. The court may also make a reference to Section 41(h) of the Specific Relief Act, 1963 which casts a bar on the grant of an injunction when an equally efficacious relief can be obtained by the plaintiff by any other usual mode of proceeding. The present plaintiff possessed the equally efficacious and exclusive remedy under Section 44 of the DRC Act and could not have proceeded with the present suit for permanent injunction.
21. As to the submission of the Ld. Defence Counsel regarding the attempt by the plaintiff to undertake fresh construction by installation of an iron girder and brick pillars, it is to be noted that section 44 (3) of the Act relates to premises which are not habitable or usable except with undue convenience. Resultantly, any repair which would mitigate the non habitability or non usability may be within the meaning of 'repairs' contemplated by the said provision. However, as noted earlier, jurisdiction in this regard lies with the Rent Controller and this court is not competent to decide this question. It was also noted by the court in the earlier part of the Judgment that the evidence regarding the damaged condition of the premises Suit No.69/11 Page No. 9/10 Girish Kumar Aggarwal Vs. Anjula Rani operated against the plaintiff as it only constituted a ground to proceed under section 44 of the Act and not for seeking a permanent injunction from this court(Civil Court). For this reason too, the plaintiff is not entitled to any relief in the present suit.
22. The suit is dismissed. Let Decree Sheet be prepared accordingly.
23. File be consigned to Record Room.
Announced in open Court.
Delhi Dated the 22.03.2013 This Judgment contains 10 pages and each paper is signed by me.
VISHAL GOGNE ACJCCJARC03(EAST)/ KKD Courts/Delhi.
Suit No.69/11 Page No. 10/10