Delhi District Court
Rajneesh Seth vs Sh. Akhshay Thukral on 6 June, 2015
IN THE COURT OF NAVEEN K. KASHYAP, COMMERCIAL
CIVIL JUDGE-CUM-ADDITIONAL RENT CONTROLLER
(WEST), TIS HAZARI COURTS, DELHI.
(This petition falls under the category of "oldest 20 matters"
pending in this court)
E. No: 10/09/00
Smt. Raj Seth (Deceased)
through Legal Representatives
1. Rajneesh Seth
S/o Late Sh. M.L. Seth
2. Rajeev Seth
S/o Late Sh. M.L. Seth
Both Residents of
191-F, MIG Flats,
Rajouri Garden,
Delhi-110029. ....Petitioners
VERSUS
1. Sh. Akhshay Thukral
2. Sh. Ajay Thukral
Both S/o Sh. T.R. Thukral
R/o A-29, Rajouri Garden,
Delhi-110029.
...Respondents
Date of Institution : 21/12/2000.
Date of Judgment : 06/06/2015.
JUDGMENT
THE FACTS:
1. This is one of the "oldest 20 matters" pending in this court.E. No.10/09/00 Raj Seth through LRs Vs. Akshey Thukral & Anr. Page 1 of 13
It spent a life of about 15 years in judicial system so far.
2. By filing the present petition, original petitioner Smt. Raj Seth is seeking eviction of respondents Sh. Akshay Thukral and Sh. Ajay Thukral in respect of a shop measuring 10'X25' bearing shop no. 2, at A-29, Rajouri Garden, Ring Road, Delhi-27 as shown in red color in the site plan attached with petition (hereinafter referred to as suit premises) under Section 14(1)(j) of Delhi Rent Control Act, 1958 (in short "DRC Act").
3. The facts in brief, as narrated in the petition, are that the suit property was initially let out to the respondents in the year 1992 at a monthly rent of Rs. 650/- per month exclusive of other charges. The present rate of rent is Rs. 730/- per month exlusive other charges. The suit premises is commercial in nature.
3.1. It is further alleged by petitioner that in order to cause harassment to petitioner earlier also in the year 1998, the respondent raised illegal construction by boring a motor pump in the suit premises.
3.2. It is further alleged by petitioner that the respondents on 31/05/2000 and more particularly on 02/06/2000, without permission/consent of petitioner started digging the shop at night and started excavating the earth which is injurious to suit premises which is an old building. That the respondents did not stop even at the request of petitioner's son. The son of petitioner even made written complaint to police and MCD in this regard. But, no action was taken against the respondents. The petitioner even filed a civil suit for mantatory and permanent injunction E. No.10/09/00 Raj Seth through LRs Vs. Akshey Thukral & Anr. Page 2 of 13 against the respondents which was at that time pending before civil court.
3.3. The petitioner even issued a notice dated 07/07/2000 to the respondent terminating their constractual tenancy w.e.f 31/07/2000.
3.4. It is further alleged that as such the respondents have carried material alterations in the tenanted premises and made structural changes, therefore, they are liable to face present eviction petition. Accordingly, the petitioner prayed that a decree for eviction be passed in favour of petitioner and against the respondents.
4. In this case, the petitioner sought certain amendments in the main petition and same was allowed. Consequently, an amended Written Statement dated 12/11/2001 was filed by the respondents. In such amended W.S., the respondents denied receiving of any legal notice from the petitioner. They further denied the allegations made in the plaint. Respondents further stated that petitioner wants to put pressure on the respondents for increasing the rent. They specifically denied that they carried out any illegal construction on 31/05/2000 or 02/06/2000. They denied that they in collusion with police raised illegal construction by excavating the earth and by lowering the surface and by placing iron guarders in the wall and thereby created double storey shop. They further denied that they caused any substantial damage not only to suit premises but also to entire property of petitioner in which suit premises is situated. They claimed that no additions or alterations have been carried out in suit premises E. No.10/09/00 Raj Seth through LRs Vs. Akshey Thukral & Anr. Page 3 of 13 and suit premises is in the same condition as it was in the year 1992 when the same was taken on rent by the respondents. It is further denied that shop has been damaged by creating double storey.
But the respondents have not denied landlord and tenant relationship between the parties, area of suit premises and nature of use of suit premises.
5. Thereafter, replication dated 12/11/2001 was filed by petitioner. In the replication, the petitioner denied the stand taken by the respondents and reiterated her original stand taken in the petition.
6. It is pertinent to mention at this stage that during the pendency of present petition, the original petitioner Smt. Raj Seth expired and vide order dated 08/08/2007 her three children namely, Sh. Rajneesh Seth, Sh. Rajeev Seth & Miss Arti Seth were replaced/impleaded as petitioners in present petition.
But unfortunately, later even one such LR/ petitioner no. 3, Miss Arti Seth also expired and she had only such other 02 LRs Sh. Rajneesh Seth and Rajeev Seth as her legal heirs. As such she was deleted as petitioner in this case. Therefore, at present there are only two petitioners Sh. Rajneesh Seth and Rajeev Seth, who are the sons of original petitioner late Smt. Raj Seth.
7. Thereafter, evidence was led by both the parties. The petitioner no. 1 examined himself as PW-1 and he tendered his evidence by way of affidavit dated 20/01/2010, Ex. PW-1/A as well as additional affidavit dated 13/05/2010, Ex. PW-1/B. He deposed on the lines taken in his petition. Further, he proved E. No.10/09/00 Raj Seth through LRs Vs. Akshey Thukral & Anr. Page 4 of 13 various documents viz. Copy of registered sale deed Ex. PW-1/1; Copy of Site plan as Ex. PW-1/2; copy of complaint dated 02/06/2000 and 04/06/2000 to SHO Rajouri Garden as Ex. PW-1/3 and Ex. PW-1/4; copy of complaint to Executive Engineer of MCD dated 02/06/2000 as Ex. PW-1/5; copy of complaint to LG along with transmission certificate as Ex. PW-1/6 and Ex. PW-1/7; copy of telegram to DCP as mark A; photograph regarding the alleged construction as mark B; photograph of adjoining shop no. 3 as mark C; Copy of civil suit filed by petitioner side as Ex. PW-1/10; Copy of report by expert Sh. S. L. Dheer as Ex. PW-1/11; copy of legal notice dated 03/07/2000 as Ex. PW-1/12 and postal record and UPC of same as Ex. PW-1/13 and Ex. PW/ 1/14 and AD card thereof as Ex. PW-1/15 and Ex. PW-1/16 and the certified copy of settlement before Ld. Civil Judge in related suit as Ex. PW-1/17.
Petitioner no. 1 /PW-1 was cross examined at length by the respondents' side.
Further, one Sh. S. L. Dheer who is a Civil Engineer and approved valuer was also examined as PW-2 by way of affidavit Ex. PW-2/A. PW-2 basically deposed regarding the construction in the suit premises supporting the case of petitioners. PW-2 was also cross examined by the respondents' side.
8. Respondent no. 1 examined himself as RW-1 by way of affidavit Ex. RW1/A. RW-1 deposed on the lines of defence taken in the WS and he was cross examined at length by Ld. Counsel for petitioners.
Further, Sh. Tilak Raj Thukral, who is the father of resopndents, was examined as RW-2 by way of affidavit Ex. RW2/1. RW-2 also deposed on the lines of defence taken in the E. No.10/09/00 Raj Seth through LRs Vs. Akshey Thukral & Anr. Page 5 of 13 WS and he was also cross examined at length by Ld. Counsel for petitioners.
Furthermore, one Sh. Ram Singh, who is a retired Executive Engineer from NDMC and approved valuer was also examined as RW-3 by way of affidavit Ex. RW-3/1. RW-3 basically deposed regarding the construction in the suit premises supporting the case of respondents. RW-3 was also cross examined by the respondents' side.
9. Arguments were heard in detail. Further, I have perused the record.
THE LAW:
10. The dominant idea of Section 14(1)(j) of D.R.C. Act is that a check should be put upon the tenant's negligent way of using the premises let out to him which might result in substantial damage to it. Of course, waste in a normal user of the premises is not covered by this clause.
Further, in an application for recovery of possession under clause (j), the Controller has first to determine the question whether the tenant has caused or permitted to be caused substantial damage to the tenanted premises. It returns a finding in favour of the tenant that is the end of the matter and he must dismiss the petition for eviction. But, if it is held that the tenant had caused for permitted to be caused substantial damage to the premises, the controller is not competent to immediately make an order for eviction because the provision contained in section 14 (10) mandates the controller to make an order directing the tenant either to carry out the repairers to the damage caused within a specified period or to pay the landlord such amount by way of E. No.10/09/00 Raj Seth through LRs Vs. Akshey Thukral & Anr. Page 6 of 13 compensation as he may direct. Order of recovery of possession can be made only if the tenant fails to comply with this order.
In "Om Prakash V. Amar Singh" [(1987) 1 SCC 458], it was held that the essential element which needs consideration is as to whether the construction are substantial in nature and they alter the form, front and structure of the accommodation. It is not possible to give an exhaustive list of constructions which constitute material alterations, as the determination of the question depends on the facts of each case.
Furthermore, no hard and fast definition of "substantial damage" is possible. Each case depends upon its own facts. An alterations which diminishes the value may fall within the definition of "damage". Every material alteration may not necessarily amount to "damage". The word used is "damage" and not "material alteration".
Thus, broadly speaking ordinary wear and tear or even damage arising from the accepted use of building and not affecting materially its value and utility is not a substantial damage.
11. Thus, in the case under Section 14(1)(j) of D.R.C. Act, the following propositions need to be kept in mind:
(i) The onus of proving that the tenant has caused substantial damage to the demised premises is upon the landlord;
(ii) Landlord must prove that addition and alteration in the tenancy premises is carried out by the tenant.
(iii) Tenant has made the construction without the consent of landlord.E. No.10/09/00 Raj Seth through LRs Vs. Akshey Thukral & Anr. Page 7 of 13
(iv) The said construction has material affected the tenancy premises and further that the construction which had been carried out by the tenant had materially altered the premises;
(v) Court must determine the nature, character of the construction and extent to which they made changes in the structure of the premises having regard to the purpose for which the premises have been let out;
(vi) Landlord has to prove it by cogent evidence and wherever necessary expert witness should be examined;
(vii)An eviction order under Clause (j) could be passed if the tenant has carried out such additions or alterations and structural changes in the tenancy premises which had brought about material impairment in the value and utility of premises;
(viii) Every construction of alteration does not impair the value and utility of the building and that construction must be of material nature which should substantially diminish the value of the building either from commercial and monetary point of view or from utilization aspect of the building;
(ix) A temporary change, addition which can be easily repaired without causing damage to the structure is not substantial damage to the tenancy premises;
(x) Every, change, addition or alteration in the tenancy premises will not invite eviction of the tenant under clause
(j) And that each case would depend upon its own facts.
(xi) The impairment of the value and utility of the building is to be seen from the point of view of the landlord and not the tenant.E. No.10/09/00 Raj Seth through LRs Vs. Akshey Thukral & Anr. Page 8 of 13
x) Whether the value and utility had materially been impaired is an inferential fact to be deduced from proved facts.
THE FINDINGS:
12. With this background, this court turns to the facts of the case in hand. At this stage, it would be appropriate to note that decision of each individual petition depends on the peculiar facts, circumstances and evidence placed on record in that particular petition. Further, as already noted above, the burden of proof is on the petitioner to prove the ingredients of Section 14 (1) (j) of DRC Act. Further, it is pertinent to note that petition of present nature is to be decided on the basis of preponderance of probabilities.
13. Further, before proceeding further in present petition, it is pertinent to note that respondents have not challeged the landlordship of petitioners or the subject matter jurisdiction of this court of ARC.
14. In this case, opposite stands are taken by petitioners and respondents side. As per the petitioner no. 1/PW-1 after taking the suit premises on rent, respondents have carried material alterations in the tenanted premises and made structural changes. It is further deposed by PW-1 that thereby respondents caused substantial damage to the suit premises by lowering the surface on the ground floor and by placing the iron guarders and T-iron converting the one shop into two as also stated in the report of Expert, Ex. PW-1/11.
E. No.10/09/00 Raj Seth through LRs Vs. Akshey Thukral & Anr. Page 9 of 1315. On the other hand, in their evidence, stand of the respondents is that they did not carry out any illegal construction on 31/05/2000 or 02/06/2000. RW-1 further denied that respondents in collusion with police raised illegal construction by excavating the earth or by lowering the surface or by placing iron guarders in the wall and thereby created double storey shop. RW-1 further deposed that they have not caused any substantial damage to suit premises or to entire property of petitioner in which suit premises is situated. RW-1 further deposed that no additions, alterations or any structural changes have been carried out in suit premises and suit premises is in the same condition as it was in the year 1992 when the same was taken on rent by the respondents.
16. Further, the RW-2 deposed when the suit premises was taken on rent on 01/10/1992, the suit premises was having one mezzanine floor.
17. One thing is clear in this case that on overall reading of the evidence on record existence of double floor i.e. Ground floor and mezzanine floor is not disputed by both the sides and it is accepted that they exist.
18. Therefore, before coming to the issue of whether there is substantial damage caused to suit premises by the respondents or not, the point to be decided as to who had made such mezzanine floor and when the same is made i.e before letting out the suit premises or thereafter.
19. And in this regard it is to be remembered that the onus of E. No.10/09/00 Raj Seth through LRs Vs. Akshey Thukral & Anr. Page 10 of 13 proving is initially on the petitioners.
20. There is only oral evidence of PW-1 and PW-2 regarding the allegation of lowering the surface on the ground floor and placing the iron guarders and T-iron thereby converting one shop into two by the respondents. The petitioner has failed to prove on record any convincing evidence to show that respondents carried out such construction in May-June 2000. There are some documents/complaints to police and MCD, but author of which is original petitioner only. Therefore, not much reliance can be placed on them. Further, the so called expert of petitioner deposed in his examination in chief that after verifying the sanction plan of suit property, he came to know that no construction of mezzanine floor by lowering the ground level of suit premises was ever sanctioned. But such sanction plan is not proved on record at all. Therefore, this court does not have the opportunity to see and make necessary inferences therefrom. Further, at best what PW-2/ expert of petitioner is stating is that there is no sanction of mezzanine floor from MCD. But the question is not whether there is a sanction from the MCD or not, but who carried out the construction of such mezzanine floor. And the deposition of PW-2/expert that respondents have caused material alteration in the suit premises is nothing but hearsay evidence in this regard. Further, in his cross-examination, PW-2 admitted that he cannot tell the age of guarders, stones and T-irons used in the suit premises.
21. Furthermore, on the other hand there is a clear cut stand of the respondents that no additions, alterations or any structural changes have been carried out in suit premises and suit premises E. No.10/09/00 Raj Seth through LRs Vs. Akshey Thukral & Anr. Page 11 of 13 is in the same condition as it was in the year 1992 when the same was taken on rent by the respondents. Further, during his cross- examination RW-1 denied the suggestion that he got constructed the basement in the tenanted premises.
Futhermore, RW-2 in his examination in chief by way of affidavit deposed that adjoining shop belonging to petitioner side was also having a similar type mezanine floor as in the suit premises in question as on 02/10/1992 i.e. when the suit premises was let out to the resopndents. Further, even RW-2 denied the suggestions that he has put "Parchatti" on the suit premises.
Furthermore, in this regard it is further pertinent to note that PW-1 in his cross examination admitted that no photograph of suit premises was taken when the same was let out in the year 1992. PW-1 further admitted that there is a mezzenine (miyani) floor in adjoining shop no. 3 of Sh. Dev Raj Badhwar also. He further admitted that structural construction of suit premises in question is similar to that of such shop no. 3. Further, the PW-1 admitted that he does not know how many feet, back side portion of shop of Mr. Badhwar is lower than ground level of front portion of his shop. But in any case, he admitted that middle portion is lower than front portion. He further admitted that when road is constructed, level of road is little bit higher than ground level.
Further, admittedly, the suit premises is situated in a populated area. Still no independent witness from neighbourhood/market is examined by the petitioner to prove their case that such construction is in fact carried out in 2002 .
22. Therefore, having regard to the fact that onus of proving this point was on the petitioners and based on the principle of E. No.10/09/00 Raj Seth through LRs Vs. Akshey Thukral & Anr. Page 12 of 13 preponderance of probabilities, in the facts and circumstances of present case having regard to the evidence on record, which is basically oral evidence pitted against the oral evidence, it is concluded that petitioner side failed to prove that it is the respondents side who carried out the alleged construction by lowering the surface on the ground floor and by placing the iron guarders and T-iron converting the one shop into two by the respondents. In fact, based on the evidence on record it is also concluded that it is not even proved by the petitioners that mezzanine floor/ parchatti was not there when the suit premises was initially let out to the respondents.
23. As a result of above discussion, it is clear that the petitioners have failed to prove their case. Consequently, the present petition is dismissed. No order as to costs. File be consigned to Record Room.
Announced in the open court on 06/06/2015 (This judgment contains 13 pages).
(Naveen Kr. Kashyap) Commercial Civil Judge-cum Additional Rent Controller, West District Courts, Delhi.
E. No.10/09/00 Raj Seth through LRs Vs. Akshey Thukral & Anr. Page 13 of 13 E. No. 10/2009Smt. Raj Seth (Deceased) vs. Akshay Thukral 06.06.2015 Present: Sh. Harpreet Singh, Ld. Counsel for petitioner.
Sh. Amandeep Maini, Ld. Counsel for respondent along with Sh. Shakti Sharma, employee of respondent.
Vide separate judgment of even date pronounced in open court, present petition is dismissed. No order as to cost. File be consigned to Record Room.
(Naveen K. Kashyap) CCJ-Cum-ARC-(W) THC/Delhi- 06.06.2015 E. No.10/09/00 Raj Seth through LRs Vs. Akshey Thukral & Anr. Page 14 of 13