Delhi District Court
Harish Chand Jain vs Sh Jagat Singh on 23 May, 2025
IN THE COURT OF MS. SUKHVINDER KAUR
PRINCIPAL DISTRICT & SESSIONS JUDGE /
RENT CONTROL TRIBUNAL, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
CNR No.DLSH01-006609-2023
RCT ARCT No.11/23
SH. HARISH CHAND JAIN
S/o late Sh. Roop Chand Jain
139, Chaudhary Bharam Singh Marg,
Moujpur, Delhi-110053
...Appellant
Versus
SH. JAGAT SINGH
S/o Tek Chand
139, Chaudhary Bharam Singh Marg,
Moujpur, Delhi-110053.
...Respondent
Date of filing : 21.10.2023
Date of arguments : 15.05.2025
Date of Judgment : 23.05.2025
JUDGMENT
1. This judgment shall dispose of an appeal filed on behalf of appellant/tenant under Section 38 of Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act") against the impugned order dated 12.09.2023, passed by Ld. ARC.
2. It is pleaded that Ld. ARC has partly dismissed the petition by illegally holding that in the absence of pre issuance of notice to the respondent/landlord, the petition for seeking repairs under Section 44 of DRC Act is not maintainable. Reliance has been placed on the judgment of Hon'ble High Court of Delhi in RCT ARCT No.11/23 Harish Chand Jain Vs. Jagat Singh Page 1 of 8 Suraj Prakash Pahwa Vs. Nand Lal, in support of the averments. It is further pleaded that the tenancy was oral without written agreement whereby it was agreed by the respondent to carry out repairs of the suit property whenever it would be needed at the cost of respondent with whitewash. It is alleged that after the eviction suit filed by the respondent against the appellant in the year 2013, the respondent adopted various modes of harassing the appellant to throw him out of the tenanted premises. Everytime he ignored the requests of the petitioner to carry out repairs of the suit property and he also disconnected electricity and water connections of the tenanted premises, hence the petitioner was forced to file a petition under Section 44 and 45 of DRC Act before Ld. ARC. Though Ld. ARC allowed the prayer made under Section 45 of DRC Act on merits, but rejected the prayer made under Section 44 of the Act under misconception of law, hence the present petition praying to set aside the impugned order dated 12.09.2023 passed by Ld. ARC has been filed.
3. No reply to the appeal has been filed on behalf of the respondent/landlord, however Ld. Counsel for respondent has advanced arguments and has vehemently opposed the prayer made by the appellant. Ld. Counsel for respondent has emphasized that prior notice under Section 44 of DRC Act to landlord is a mandatory provision and Ld. ARC has rightly rejected the prayer of the petitioner seeking direction for repairs as being not maintainable due to non fulfillment of the pre- conditions imposed by the statute. He has placed reliance on the findings of Hon'ble Delhi High Court in CM (M) 1076/2021 & CM No.5820/2022 in the case titled Sh. Vineet RCT ARCT No.11/23 Harish Chand Jain Vs. Jagat Singh Page 2 of 8 Garg Vs. Sh. Dhirender Sharma, pronounced on 25.05.2022, in CM (M) 592/2022 & CM No.28211/2022 and in the case titled Baba Rahim Ali Shah & Anr Vs. Sh. Atul Kumar Garg, pronounced on 03.06.2022 in CM (M) 592/2022 & CM No.28211/2022.
4. Arguments advanced by Ld. Counsels for both the parties have been duly considered, the record has been meticulously perused and the law and precedent have also been gone through.
5. Section 44 of DRC Act deals with landlord's duty to keep the premises in good repair, which runs 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 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 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 RCT ARCT No.11/23 Harish Chand Jain Vs. Jagat Singh Page 3 of 8 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 bear the excess cost himself, the Controller may permit the tenant to make such repairs".
6. Thus, as per the provisions of Section 44 of DRC Act, landlord is bound to keep the premises in good condition and make the necessary repairs and in case he neglects or fails to do the same within a reasonable time after notice, the tenant may make the same himself and deduct expenses of such repairs from the rent or otherwise recover them from the landlord, subject to the conditions in respect of the maximum expenses as per the provision. Thus as per law the tenant has to issue a notice to the landlord and only on the failure on the part of the landlord to make the repairs within a reasonable time, he is entitled to carry out the said repairs himself.
7. In the case titled Suraj Prakash Pahwa Vs. Nand Lal (supra), relied upon by Ld. Counsel for appellant, the Hon'ble High Court of Delhi has given the finding on the basis of the analogy in the judgment titled M/s Jeevan Diesels & Electricals Ltd. Vs. M/s Jasbir Singh Chadha (HUF) & Anr., (2011) 182 DLT 402, and the judgment of Hon'ble Supreme Court in the case of Nopany Investments (P) Ltd. Vs. Santokh Singh (HUF), (2008) 2 SCC 728, which pertain to the termination notice of tenancy, that non service of prior notice by tenant under Section 44 (3) of the Act does not cause any prejudice to the landlord and the object of such notice can be achieved by considering RCT ARCT No.11/23 Harish Chand Jain Vs. Jagat Singh Page 4 of 8 the notice of petition itself as the notice contemplated under Section 44(3) of the Act. It has also been held that though normally the tenant is to give such a notice to the landlord before filing of the petition, the petition itself can be considered as a notice to the landlord of such state of affairs.
8. Hence, in the judgment relied upon by Ld. Counsel for appellant also the view taken by Hon'ble High Court of Delhi is that normally the tenant is to give such notice to the landlord before filing of the petition. There is no finding to the effect that petition has to be considered as a notice. Pertinently in the cited case, the petitioner had challenged the maintainability of petition of respondent on the ground that based on the same legal notice, respondent had earlier filed a petition under Section 44 of the Act which was withdrawn. Hon'ble High Court upheld the order of Ld. RC also considering that notice in writing had admittedly been given to respondent/tenant and as long as the premises remained inhabitable/unusable, cause of action would continue to subsist with tenant and hence in view of object of provision, insistence of a fresh notice may not be mandatory.
Thus, the judgment is also not applicable in view of distinct facts and circumstances.
9. In the judgment titled Sh. Vineet Garg Vs. Sh. Dhirender Sharma (supra) which is also the judgment of the same High Court and is the latest one, the petitioner moved an application under Section 151 CPC seeking permission to carry out the repairs in the premises forming subject matter of the proceedings which were in dilapidated condition and he sought grant of permission to carry out the repairs in the aforesaid RCT ARCT No.11/23 Harish Chand Jain Vs. Jagat Singh Page 5 of 8 premises alongwith certain incidental reliefs. In the said judgment it was was held as under:
"9. The scheme of Section 44(1) and (2) is clear and unequivocal. Section 44(1) requires every landlord to keep the premises in good condition. Section 44(2) deals with a situation in which the landlord fails to do so, and envisages issuance of a notice by the tenant to the landlord and, on the landlord failing to make repairs within a reasonable period, entitles the tenant to carry out the said repairs and deduct the expenses of the repairs from the rent payable to the landlord, or otherwise to recover the expenses from the landlord.
10. As such, the DRC Act does not envisage a tenant suo motu carrying out repairs of the premises. What is required in case premises are found to be in need of repairs, is a notice from the tenant to the landlord under Section 44(2), with the right vested in the tenant, on the landlord failing to take steps within a reasonable period, to carry out the repairs in herself or himself and recover the costs thereof from the landlord in the manner envisaged by Section 44(2)".
10. It was further held:
"12. It is a well settled principle, from the times of Taylor v. Taylor 1, Nazir Ahmed v. King-Emperor 2 and State of U.P. v. Singhara Singh 3 that, if an Act is required by law to be done in a particular manner, it may be done in that manner alone or not done at all. The DRC Act is a self-contained legislation. It envisages a particular scheme of things, in a situation in which tenanted premises are in need of repair. That scheme of things is to be found in Section 44(2). If, therefore, a tenant finds the premises in his occupation to be in need of repair, the remedy with him would be to take recourse to Section 44(2)".
11. In the other case titled Baba Rahim Ali Shah & Anr Vs. Sh. Atul Kumar Garg (supra), relied upon by Ld. Counsel for RCT ARCT No.11/23 Harish Chand Jain Vs. Jagat Singh Page 6 of 8 respondent, it was held as under:
"20. Exercise of power by the Controller is, however, envisaged by sub-section (3) of Section 44. Where tenanted premises are not habitable, except by carrying out repairs therein, and, after receipt of notice to that effect from the tenant, the landlord fails to carry out the said repairs, Section 44(3) allows the tenant to apply to the Rent Controller for permission to make such repairs himself. The specific ingredients which are required to be satisfied before a tenant invokes the jurisdiction of the Rent Controller under Section 44(3) are, chronologically, that are that (i) the premises should not be habitable or usable except by carrying out repairs, (ii) notice in writing has to be issued by the tenant to the landlord to carry out such repairs, and
(iii) the landlord should neglect or fail to make the repairs despite receiving such notice. It is only when these three eventualities, chronologically and cumulatively are satisfied that the tenant may approach the Controller. Even then, the power of the Controller is to permit the tenant to carry out the repairs and submit, to the Controller, an estimate of the cost of repairs which, after hearing the landlord, the Controller may call upon the landlord to disgorge.
21. There is, therefore, no provision in Section 44 of the DRC Act, or elsewhere in the DRC Act, whereby the Rent Controller can call upon the landlord to carry out repairs of the tenanted premises. He may permit the tenant to carry out repairs under Section 44(3) if, after receipt of notice from the tenant in that regard, the landlord fails to repair the premises".
12. Hence, the ratio of the judgment titled Sh. Vineet Garg Vs. Sh. Dhirender Sharma (supra) and Baba Rahim Ali Shah & Anr Vs. Sh. Atul Kumar Garg (supra), is that prior notice is a pre-condition before approaching Rent Controller under Section 44 of DRC Act. Furthermore, it is not the case of the appellant that the judgment Suraj Prakash Pahwa Vs. Nand Lal (supra) relied upon by him in the appeal was also cited by him before Ld. ARC while arguing on the application under Section RCT ARCT No.11/23 Harish Chand Jain Vs. Jagat Singh Page 7 of 8 44 of the DRC Act. Hence, Ld. ARC did not have the opportunity even to appreciate the law laid down by Hon'ble Delhi High Court in Suraj Prakash Pahwa's case.
13. Hence, in view of the law laid by Hon'ble Delhi High Court and also considering the statutory provision under Section 44 of DRC Act, which provides for issuance of prior notice, I do not find any reason to interfere in the order dated 12.09.2023 of Ld. ARC. The appeal is accordingly dismissed.
ANNOUNCED IN THE OPEN COURT On 23rd May, 2025 (SUKHVINDER KAUR) PRINCIPAL DISTRICT & SESSIONS JUDGE,/ RENT CONTROL TRIBUNAL SHAHDARA DISTRICT, KKD COURTS: DELHI RCT ARCT No.11/23 Harish Chand Jain Vs. Jagat Singh Page 8 of 8