Delhi District Court
Sh. Dev Prakash Abrol(Deceased) vs Smt. Usha Sethi on 15 March, 2017
IN THE COURT OF SAMAR VISHAL:
COMMERCIAL CIVIL JUDGE/ADMINISTRATIVE CIVIL
JUDGE/ADDITIONAL RENT CONTROLLER (SOUTH):
SAKET DISTRICT COURTS: NEW DELHI
Eviction Petition No.6147/2016
Unique ID No. 02401C0082452001
In the matter of:
1. Sh. Dev Prakash Abrol(deceased),
through Lrs Dr. Sunil Abrol,
S/o Late Sh. Dev Prakash Abrol,
R/o M27, First Floor,
Greater Kailash1 Market, New Delhi.
2. Mrs. Pamela Kapoor,
W/o Sh. Vijay Kapoor,
D/o Late Sh. Dev Prakash Abrol,
R/o R156, Greater Kailash ,New Delhi,
3. Mrs. Meenakshi Nijhawan,
D/o Late Sh. Sudhir Nijhawan,
R/o 35, Navjiwan Vihar, New Delhi,
Petitioners no. 2 & 3 are through their attorney Dr. Sunil Abrol
.....Petitioners
Versus
1. Smt. Usha Sethi,
W/o Sh. Kuldip Singh,
R/o M27B, Greater Kailash 1, New Delhi48,
2. M/s Basic clothing Company
(Through its partner),Mr. Rajesh Jaju
ER3, Inder Puri, New Delhi28,
3. M/s West Wood Clothings,
Through its proprietor Mr. Sushil Jaju,
S5, Pratap Chamber, Gurudwara Road,
Karol Bagh, New Delhi110005
E No.: 6147/2016 "Dev Prakash Abrol Vs Usha Sethi & Ors." Page 1/19
also at.
ER3, Inder Puri, New Delhi110028.
4. M/s Mohan Clothing Co. Pvt. Ltd.
Through its Director Mr. Nikhil Mohan,
76, Udyog Vihar, Gurgaon, Haryana.
Also at B40, Bapu Nagar, Kotla Mubarakpur, New Delhi .....Respondents
DATE OF INSTITUTION :01.12.2000
DATE OF RESERVING ORDER :04.03.2017
DATE OF JUDGMENT :15.03.2017
EVICTION PETITION U/s 14(1)(a)(b) and (j) OF
DELHI RENT CONTROL ACT, 1958
15.03.2017
J U D G M E N T:
1. By this judgment I shall dispose off the instant eviction petition, filed U/s 14(1)(a)(b)(j) of Delhi Rent Control Act, 1958 (hereinafter referred to as the "DRC Act") by petitioner Sh. Dev Prakash Abrol against the respondents Usha Sethi and Basic Clothing Company, M/s West Wood Clothings and M/s Mohan Clothing Co. Pvt. Ltd. whereby the petitioner has sought eviction of respondents from shop No. 27B, in property no. M27, Greater Kailash Part1,Main Market, New Delhi110048(referred through as tenanted shop). Respondents no. 2,3 and 4 have not contested this petition and remained ExParte in this proceeding.
2. The grounds on which the eviction of tenant is sought are :
i) That the respondent no.1 has not paid the rent since 01.01.1997. The E No.: 6147/2016 "Dev Prakash Abrol Vs Usha Sethi & Ors." Page 2/19 respondent no.1 is liable to pay Rs. 3194.40 @ Rs. 290.40 for the period 01.01.1997 to 30.11.1997 and Rs. 9583/ for the period 01.12.97 to 30.05.2000 and rent for the period 01.6.2000 to 30.11.2000 @ Rs. 319.44. The rent is payable in advance. The notice dated 05.06.2000 was sent to the respondent no.1 and earlier to that , a notice was sent on 01.02.1994. The respondent no.1 despite having received the notice neither paid nor tendered the rent to the petitioner alongwith interest @ 15% per annum and notice charges amounting to Rs. 2200/. The respondent no.1 has thus defaulted in the payment of rent and has not complied with the notice.
ii) The respondent no.1 has sublet, assigned or otherwise parted with the possession of the suit premises, let on or after 09.6.1952 without obtaining the consent in writing of the petitioner, to the respondent no.2 who is carrying on business in the name and style of M/s Basic Clothing Company who are distributors of Lee Cooper Jeans wear and the entire income of the business is being retained by it and it is having complete control over the premises and the business. The said tenant has been admitting about the business in the suit premises. In the newspaper, Times of India, a Column has also appeared regarding the said business in the premises and the said Times of India was published on 13.10.1999 and from the said newspaper, the petitioner came to know about the subletting by the respondent no.1. The petitioner has no control over the tenanted premises and the said subtenant is in the possession and is retaining E No.: 6147/2016 "Dev Prakash Abrol Vs Usha Sethi & Ors." Page 3/19 the income of the business. The respondent no.2 has paid huge amount to the respondent no.1. The petitioner has no control over the tenanted premises and the said subtenant is in the possession and is retaining the income of the business. The respondent no.2 has paid huge amount to the respondent no.1 and is also getting substantial amount towards rent from it. The possession of the respondent no.2 is not authorized and legal and the said possession is without is without consent and permission of the petitioner.
iii) The respondent/tenants after the commencement of the said Act has caused or permitted to be caused substantial damage to the suit premises. The respondents removed masonry, columns slabs and adjacent show window and it has lead to the weakening of the support to the roof slab above. The respondents have failed to restore the property in original position despite receipts of notice dated 05.06.2000, sent by the petitioner to the respondents. The unauthorised additions and alternations still exists in the property.
3. In his written statement the respondent no.1 has opposed the eviction petition and his reply to aforesaid three grounds of eviction are as follows: That the ground of Section 14(1)(a) of DRC Act is not available to the petitioner as the rent of the premises stands paid up till date. The respondent no.1 has been regularly paying the rent to the petitioner but after May, 1998, he refused to accept the rent. The mode of payment of rent has always been by way of cheque. As per the respondent no.1's bank records, the rent was paid by cheque E No.: 6147/2016 "Dev Prakash Abrol Vs Usha Sethi & Ors." Page 4/19 till May, 1998 and all the cheques issued in the name of Sh. D.P.Abrol had been encashed. After that, as the landlord refused to accept the rent, the respondent no.1 alongwith other two cotenants i.e. her sons, filed a petition under Section 31 of Punjab Relief Indebtedness Act to deposit the rent fro the period 01.06.1998 to November, 1999 at the rate of Rs. 290.40 per month and the debt was deposited in the Court vide challan no. 54 deposited on 18.01.2000, in the treasury. The petitioner was duly served in the said proceedings titled " Usha Sethi Vs D.P.Abrol" bearing no. 347/99, but he did not put appearance in the court and thus the Court of Senior Civil Judge passed an order allowing the petition after proceedings ex parte against the defendant on 05.07.2000. In the meantime, a legal notice dated 05.6.2000 was served upon the respondent no.1 issued by the petitioner through his counsel Sh. R.K.Jain and associates. In the said notice, it was alleged that the respondent no.1 is liable to pay rent of Rs. 264 from 01.1994 and rent @ Rs. 280.40 w.e.f. 01.07.2000. The said notice was duly replied by the counsel of the respondent no1. Vide reply dated 11.07.2000, which was sent UPC and Regd. Post at the address of the counsel. It was pointed out in the said reply, that the last rate of rent is Rs. 290.40 per month and not Rs. 280.40p. Alongwith the reply, a draft of Rs. 2323.20/ bearing no. 052952, 110024045, drawn on PNB, GKI, New Delhi, as rent for the period December 1999 to July 2000 was sent. The said draft had not received back by the sender and as such, the liability of respondent no.1 stood discharged. Neither there was any intimation that the draft is not E No.: 6147/2016 "Dev Prakash Abrol Vs Usha Sethi & Ors." Page 5/19 acceptable or that the tender was invalid. Thus, it can be safely presumed that the draft was accepted as a valid tender. After that the petitioner has still not been accepting the rent and another petition for deposit of rent as debt due u/s 31 of Punjab Relief Indebtedness Act has also been filed. Thus, no cause of action under sec.14(1) (a) of DRC Act arises as the tenant has not failed to pay the whole of arrears of rent, as demanded by the Petitioner through the legal notice, within the statutory period. The respondent no.1 has not sublet or parted with the legal possession of the property in any manner whatsoever. Earlier the tenancy used to be in the name of Sh. Gurbax Singh, the father in law of the respondent no.1. Vide an agreement dated 04.05.1992, he agreed to transfer the tenancy rights standing in his name in favour of the Respondent no.1, as such, a lease deed was entered into between the petitioner and respondent no.1, as tenant, which included her sons. A composite agreement was executed between West Wood Clothings through Sh. Sushil Jaju and respondent no.1 on 11.06.1998. As per the said agreement, the respondent no.1 (second party) had agreed to give the premises on leave and licence to the first party to stock their garments. The exclusive possession of the premises remains with the second party and the keys of the premises are with her only. The Respondent no1. and her sons are managing the shop. It is the West Wood Clothing Co. who are selling the goods/garments, at the disputed premises, after purchasing the same from the respondent no.2. The said agreement is operative for three years and the exclusive possession of the property remains with the respondent no.1. and the said E No.: 6147/2016 "Dev Prakash Abrol Vs Usha Sethi & Ors." Page 6/19 agreement expired in June 2001. The salary of the employees is paid by the respondent no.1 and even the telephone connection in the suit premises is in the name of the respondent no.1. The electricity meter till date is in the name of Sh. Gurbax Singh i.e. the father in law of the respondent no.1. The tenant has retained the legal possession of the premises and has only allowed permissive use of the premises by West Wood Clothing along with the respondent no.1. The respondent no.1 has not been excluded from the possession of the suit premises and there has not been any breach of agreement with the landlord. The petition is liable to be dismissed as it does not fulfill the requirements of Section 23 of the DRC Act. As it is not mentioned in the petition what kind of substantial damage has been caused to the damage nor it is mentioned when such damage has been caused. The petition is time barred and is liable to be dismissed. Neither respondent no.1 nor respondent no.2 have caused any material alteration in the property, nor voluntary waste has been caused to the premises. Only decorative/cosmetic addition has been done. As only steel and wooden racks required to keep the garments have been kept inside the shop. The tenant has not broken any wall or permanent structure in the shop. It is only for stocking the garments, the steel and wooden racks have been kept inside the shop, which are necessary for the use of the premises and are removable.
4. In replication there is a denial of the defences set up by the respondent no. 1 and reaffirmation of the averments of petition.
5. I have heard counsels for both the parties and perused the records of E No.: 6147/2016 "Dev Prakash Abrol Vs Usha Sethi & Ors." Page 7/19 the case along with the written submissions accompanied by the judgments on which both the parties relied.
6. The present eviction petition has been filed under section 14 (1) (a)
(b) and (j) of the DRC Act. I will deal with these three gounds one by one.
7. The first ground is 14(1) (a) which provides for eviction of a tenant for non payment of rent. The cause of action for eviction arises when the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date of which a notice of demand for the arrerars of rent has been served of him by landlord in the manner as provided in Section 106 of the Transfer of Property Act, 1882. The notice in the present case is dated 05.06.2000 Ex. PW1/E. This notice Ex. PW1/E was admittedly served upon respondent no.1 and duly replied by counsel for respondent no.1 vide reply dated 11.06.2000 which is Ex. RW1/A. It is the case of the respondent that alongwith the reply, a draft of Rs. 2323.20 bearing no. 052952, 110024045 drawn on PNB, GKI, New Delhi was sent tendering and paying the rent for a period of December 1999 to July 2000. This draft was not received back by the respondent no.1 and therefore, her liability stood discharged. There are other contentions of respondent no.1 that she has duly paid the rent to the petitioner through cheque till May 1998 and all the cheques issued in the name of Sh. D.B. Abrol had been encashed. After that, as the landlord refused to accept the rent, the respondent no.1 filed the petition under Section 31 of Punjab Relief and Inductness Act to deposit the rent for the period 01.06.1998 to November 1999 and it was deposited in the Court vide challan no. 54 on 18.01.2000 in the treasury.
E No.: 6147/2016 "Dev Prakash Abrol Vs Usha Sethi & Ors." Page 8/198. It is the argument of the respondent that on the ground of Section 14(1)(a) of Delhi Rent Control Act, the petitioner has no cause of action. Firstly, there is no statement on oath on default of rent, by the Petitioner/Landlord, and secondly the Respondent has filed the complete record to show that the tenant was regularly paying rent by way of cheques. When the landlord stopped accepting the payment through cheque, the tenant deposited the rent in the Court. In reply to the notice of demand, the demand draft of the pending rent was sent along by the tenant where there was no intimation that the draft is not acceptable or that the tender of draft is invalid. With respect to demand made in the demand notice under Section 14(1) (1) of the DRC ACt, the period of rent due as well as the rate of rent, both were wrongly stated and the tenant had still cleared the balance of arrears due. Therefore, the landlord was left with no arrears of rent to be recovered from the tenant from the date of filing of the Petition, also the Landlord has not proved or stated any such thing in his testimony. Then the order of deposit of rent u/s 15(1) of DRC ACt was passed on 03/4/2002 on which the Respondent/Tenant has not defaulted even once in last 16 years and the orders dated 16/07/2014 on the application filed under Section 35 and 56 of the Indian Evidence Act and order dated 26.04.2016 under Section 15(1) of the DRC Act of this Court, while dismissing the Application under 15(1) under DRC Act of the landlord, proves the said contention of the respondent. Thus the petition on this ground has to fail. Hence, Section 14(1)(a) does not apply to the facts of the present case.
E No.: 6147/2016 "Dev Prakash Abrol Vs Usha Sethi & Ors." Page 9/199. In order to prove his case, there are three witnesses from petitioner's side, PW1 Sh. Sunil Abrol, PW2 Mr. Manu Bhatnagar and PW3 an official witness. If we go through the affidavit of PW1 Sunil Abrol who is the only witness to prove the facts of non payment of rent, it is clear that his evidence affidavit is conspicously silent on the factum of non payment of rent by respondent no.1 after receiving the legal notice Ex. PW 1/E. In fact, this witness has totally ommitted to say anything about the issue of non payment of rent by respondent no.1. His testimony only reflects upon the issues of sub letting and substantial damage to the property which I will revert to later on. Even in his cross examination he has admitted that he has not stated in his evidence that respondent no.1 had ever defaulted in the payment of rent. Therefore, what has been pleaded by the petitioner in his petition regarding non payment of rent and existence of conditions of Section 14(1)(a) of DRC Act has not been proved by him making his own case unbelievable. Therefore, the evidence of respondent no.1 that she was regularly paying the rent has no contradictory evidence from the petitioner.The legal notice Ex. PW1/E is dated 05.06.2000 and the arrears of rent claimed is from 01.01.1997. The petitioner's testimony is silent on this issue and as alreday stated the petitioner has not proved what he has pleaded. In the cross examination of RW1 the petitioner has not asked any question nor given any suggestion regarding the non payment of rent. The respondent has reaffirmed his testimony about the payment of rent till March 1998 through cheques and after that up to date deposition of rent in the Court. There is nothing in the cross examination of this witness to impeach his testimony regarding upto date payment of rent to the petitioner. The respondent has deposed that the rent has been E No.: 6147/2016 "Dev Prakash Abrol Vs Usha Sethi & Ors." Page 10/19 paid to the petitioner through cheques till May 1998 and all the cheques issued in the name of Sh. D.P.Abrol has been encashed. The respondent has proved the passbook and bank statement for the period 31.07.1995 to 21.02.1998 as RW1/2. At the stage of final arguments the respondent no.1 has moved an application for placing on record one last page of Ex. RW 1/2 on record alongwith the original of RW1/2 which is the passbook of Punjab National Bank of the respondent no.1. This document RW1/2 is mentioned in the evidence affidavit. During arguments the Ld. Counsel for petitioner has stated that the rent for the month of April and May, 1998 was not paid and not reflected in RW1/2. It was submitted by Ld. Counsel for respondent that the petitioner has not made any such statement with respect to any default in payment of rent. Respondent no.1 realised at that time that the last page of the document RW1/2 was missing and to show that the rent for the period of April and May, 1998 was paid, this original passbook was placed on record which reflects that cheque for the month of April, 1998 was encashed by petitioner on 13.05.1998 and the rent for the month of May was got encashed on 28.05.1998. Since, the petitioner has failed to lead any positive evidence of non payment of rent despite oral evidence of respondent no.1 regarding payment of rent through cheques, this document which the respondent no.1 wants to placed on record will only clarify this fact further and will not cause any prejudice to the petitioner as there is no contradictory evidence by the petitioner to show that this rent has not been deposited in his account. He could have easily shown his bank statement to disprove this fact. Therefore, the notice of the petitioner RW1/E demanding rent from 01.01.1997 is not a valid notice. Since it was not a valid notice, no cause of action arose to file the petition E No.: 6147/2016 "Dev Prakash Abrol Vs Usha Sethi & Ors." Page 11/19 under section 14(1)(e) of DRC Act. It is further deposed by RW1 that after 1998, as the landlord refused to accept the rent, the respondent no.1 alongwith other cotenants i.e her sons had deposited the rent in the Court for a period of 01.06.1998 to November 1998 at the rate of Rs. 290.40. The Court of senior Civil Judge passed an order allowing the petition. The certified copy of the petition is Ex. RW1/6, of application is RW1/7, Ordersheets are RW1/8 and the order as Ex. RW1/8(A). Further, this Court vide order dated 03.04.2002 directed the respondent to pay the rent and deposite the arrears w.e.f April 2001@ Rs. 319.44. The order of this Court dated 26.04.2016 has observed that the respondent is deposing the rent due on every month and the arrears were deposited by the respondent on 05.04.2002 which was released to the petitioner. The Court further observed that there is no wilful default on the part of the respondent no.1 and depositing the rent. This order has attained finality.
10. Since, the petitioner has failed to prove that the respondent was ever in arrears of rent, no question of interest on arrears of rent also arises. It is therefore clear that there was no cause of action for the petitioner to file the eviction petition on the ground of non payment of rent.
11. The second ground for eviction is 14 (1) (b) DRC Act which provides for eviction on ground for subletting or parting with possession by the tenant. The cause of action for eviction arises, if the tenant has, sublet, assigned or otherwise parted with the possession of the whole or any part of premises without obtaining the consent in writing of the landlord. It is a case of the petitioner that respondent no. 1 has sublet the E No.: 6147/2016 "Dev Prakash Abrol Vs Usha Sethi & Ors." Page 12/19 tenanted shop to respondent no. 2 who is carrying on his business in the name of M/s Basic Clothing Company who are distributors of Lee Cooper Jeans. The source of knowledge of the petitioner regarding subletting is the newspaper Time of India published on 13.10.1999. To prove the factum of subletting, the petitioner has examined PW1 and further submitted that the subletting of the suit premisses is proved on the basis of documents Ex. RW 1/9, RW 1/10 and RW 1/13 as the respondent no. 1 parted with exclusive possession in favour of subtenant respondent no. 2 against valuable consideration. The agreement dated 11.06.1998, Ex. RW 1/9 and dated 10.08.2001, Ex. RW 1/10 were sham and camouflage to rebut the allegation of subletting. The document Ex. RW 1/13, statement of Punjab National Bank proved that in lieu of subletting, the respondent no. 1 received Rs. 1,10,000/ by way of rent from the respondent no. 2 on monthly basis. Ex. PW 1/G which was a notice of MCD to the petitioner also showed that the suit premises were considered by the Government Authorities as subletting due to increase of rent at Ground Floor whereas, the petitioner had never given any consent to the tenant for subletting the premises. As per the Ex. RW 1/9 and Ex. RW 1/10, and also through the evidence of RW1, there was no business transaction in the name of respondent no. 1 tenant. All the sale proceeds were taken by respondent no. 2 subtenant on the suit shop. The repondent no. 1 did not have Sales Tax Number and all the sales were in the name of subtenant M/s Westwood Clothing Co. on daily basis against the Sale Tax Number of respondent no. 2. The Bill Books and Sales Tax Number of respondent no. 2 M/s Westwood Clothing Co. Was used for all sales. The credit card sales were also credited in the account of M/s Westwood Clothing Co. i.e. E No.: 6147/2016 "Dev Prakash Abrol Vs Usha Sethi & Ors." Page 13/19 respondent no. 2 subtenant. The interiors, furniture, staff etc. were all provided by M/s Westwood Clothing Co., respondent no. 2 subtenant. No expenditure, whatsoever for running and doing the business from the suit shop was done by the respondent no. 1 tenant. The Bank Statement, Ex. RW 1/13 proved that no other expenditure was incurred for running the business form the suit shop. No Balancesheet of the business was filed to rebut the case of the petititioner. The Income Tax Returns Ex. PW 3/1 (Colly) and Ex. RW 1/13 amply proved that the sale proceeds were not received by the respondent no. 1 tenant from the subtenant respondent no.
2. As per Ex. RW 1/9 and Ex RW 1/10, third person were working in the suit property. Nonproduction of documents like Accounts Books, material evidence of sale, purchase, cash details, rent receipts, rent challans etc. by respondent no. 1. fully justified the adverse inference of law to be drawn against the tenant respondent no. 1.
12. To rebut, the arguments of respondent no. 1, on the ground of Section 14 (1) (b) of DRC Act, are that the documents, the pleadings and the testimonies of the witnesses have proved on record that the tenant has never lost the possession of the premises, had not parted, assigned or sublet the shop. The tenant has indeed sold clothes of Lee Cooper, Black Berrys, but never lost the right of possession and the right to exclude. The tenant has done business with various companies for limited period of time on a 'tieup' (Licensee) basis i.e. to solely sell their products for limited period time. The tenant has always maintained and had exclusive right to include or exclude others from their business activities. The tenant controls the management of the business whcih includes the payment of bills, the E No.: 6147/2016 "Dev Prakash Abrol Vs Usha Sethi & Ors." Page 14/19 payment of salaries, payment of telephone bills, the keys to the permises and has always been responsible for the basic wellbeing and upkeep of the shop. All these activities are and always were in control of the tenant. The tenant has not sublet the premises and not created any third party interest. The sons of the tenants are always present in the shop. Thus, the petition on the ground of 14 (1) (b) also is not maintainable.
13. In Rangamanner Chetty Vs Rangiah, AIR 1954 Madras 182, the proposition of law which was held is that there cannot be a sub letting, unless the lessee parted with legal possession. The mere fact that another is allowed to use the premises while the lessee retains the legal possession is not enough to create a sublease. To create a lease or sublease a right to exclusive possession and enjoyment of the property should be conferred on another.
14. The main basis of petitioner saying that the respondent no.1 has sub let the premises are the agreements Ex. RW1/9, Ex. RW1/10. One of these agrements is basically consignee agent and consigner agreement. This agreement PW1/10 clearly mentions respondent no.1 as the holder of tenancy rights and in possession of tenanted property. The second party stated to be in business of readymade garments. This agreement is referred as franchisee agreement. Similary, RW1/9 is a leave and license agreement and the respondent no.1 is mentioned as a tenant in the tenanted premises. There is nothing in these agreements to show an actual sub letting or parting of possession by the respondent no.1. The legal possession of the tenanted premises was always with the respondent no.1 E No.: 6147/2016 "Dev Prakash Abrol Vs Usha Sethi & Ors." Page 15/19 as is the content not only of the agreement but is also a fact proved by the evidence of respondent no.1 who has also proved documents Ex. RW1/14 to RW1/47 which are telephone bills, electricity bills, bank statement etc to show that the tenanted premises is being utilised by the respondent no.1 and he is availing all these utilities in this premises. The agreements Ex. RW1/9 and Ex. RW1/10 does not proves sub letting or parting with possession. The commission that may be received by respondent no.1 cannot be equated with the rent and the commission which the respondent no.1 might be getting by selling the brands of the other party is a commercial activity in which the respondent no.1 was indulged as the tenancy was commercial tenancy and respondent no.1 was having a right to enter into any model of business unless and until he violates the terms of the lease or law. The source of knowledge of sub tenancy was stated by the petitioner to be a newspaper despite living in the same vicinity of the tenanted shop as stated by respondent no.1 counsel. Therefore, it seems that the petitioner also do not have any first hand/direct knowledge of sub letting as alleged by him.
15. The third ground for eviction is 14 (1) (j) causing substantial damage to the tenanted premises. The casue of action arises when the tenant has caused or permitted to be caused substantial damage to the premises. It is the argument of the petitioner that the report Ex. PW2/A and statement of RW 2 duly proved that respondent no. 1 had made structural changes in the suit shop without permission of the petitioner in voilation of agreement. PW2 testified that pillar ML was existing on the day of his visit of the suit premises and it was incorrect that wall AB in E No.: 6147/2016 "Dev Prakash Abrol Vs Usha Sethi & Ors." Page 16/19 Ex.PW 2/2 was in existence. PW1 has also testified that there was substantial damage to the shop by the respondent no. 1.
16. To rebut, the arguments of respondent no. 1, on the ground of Section 14 (1) (j) of DRC Act, it is the argument of the respondent no.1 that the petitioner / landlord had miserably failed to prove that there was any damage to the suit premise as per Section 14 (1) (j). The photographs, the reports filed by the architect, RW2 prove beyond doubt that no pillar has been removed and no slab has been damaged, neither there is any substantial damage done to the shop nor has anything happen to the shop in the last 16 years. Hence, it can be concluded that there is no weakening of structure caused by any action of the tenant. Secondly, the Architect PW2 (on behalf of the petitioner) who stepped in the witness box could not even verify as to when he had entered the shop in question for inspection. His testimony was proved to be false.
17. In this case, petitioner and respondent have both filed their reports regarding damage allegedly done to the tenanted premises. Both reports are contradictory to each other and are basically factual in nature. Although the expert witnesses have to express their opinion but the witnesses PW2 and RW2 in the present case have stated the facts and therefore they are not merely the expert witnesses but have become the witnesses of fact regarding substantial damage to the tenanted premises. The burden to prove that there was substantial damage in the tenanted premises was upon the petitioner and to prove this fact he has examined himself as PW1 and one Sh. Manu Bhatnagar as PW2. He stated himself E No.: 6147/2016 "Dev Prakash Abrol Vs Usha Sethi & Ors." Page 17/19 to be a qualified. B.ARCH. He proved his report Ex. PW2/3 but he has not placed on record any proof of his profession qualification and experties .He has not given any notice of insepction to respondent no.1 thereby depriving the repsondent no.1 to clarify on any aspects which is adverse against him in this report. This report is of 2000 saying that the support for the roof slab has become weak. This report is based on the basis of comparison of site plans of the property and therefore it is difficult to believe that even if there is some damage as alleged, it was done by the respondant and none else. On the contrary the expert witness examined by respondent i.e RW2 has stated that there is no substantial damage in the tenanted premises nor the tenanted premises have become weak.
18. Legally speaking, the infirmity of expert evidence consists in this that it is mostly matters of opinion and is based on facts detailed by others or assumed facts or opinion against opinion and experts are selected by parties by ascertaining previously that they will give an opinion favourable to the party calling them. Expert evidence is however, of value in cases where the courts have to deal with matters beyond the range of common knowledge and they could not get along without it, eg in matters of scientific knowledge or when the facts have come within the personal observation of experts. An expert is fallible like all other witnesses and the real value of his evidence consists in the logical inferences which he draws from what he has himself observed, not from what he merely surmises or has been told by others. There is special difficulty in dealing with the evidence of expert witnesses. Such evidence must always be received with caution, they are too often partisans, that is they are reluctant to speak E No.: 6147/2016 "Dev Prakash Abrol Vs Usha Sethi & Ors." Page 18/19 quite the whole truth, if the whole truth will tell against the party who had paid them to give evdience. Therefore in the facts and circumstances of the case, the testimony of PW2 regarding substantial damage cannot be relied upon without further corroboration to it.
19. Therefore, on the basis of the aforesaid discussions and appreciation of evidence lead by both the parties on the yardstick of preponderance of probabilities, the petitioner is unable to prove the facts of non payment of rent, subletting and damage in the present eviction petition. As a result, the petition is dismissed. The parties shall bear their own costs.
Announced in the open court (Samar Vishal)
on 15.03.2017 Administrative Civil Judgecum
Additional Rent Controller
cumCommercial Civil Judge:
(South): Saket District Courts:
New Delhi
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