Delhi District Court
Khem Chand Sokin vs Sh. Nand Kishore on 16 July, 2018
IN THE COURT OF SH. NAVJEET BUDHIRAJA, ACJ/CCJ/ARC(WEST)
TIS HAZARI COURTS, DELHI
No.26242/16
Date of Institution:17.08.2005
Date of Decision:16.07.2018
Khem Chand Sokin
S/o Sh. Man Singh
R/o SR-91/633, Peeragarhi
Delhi-110087
Also at:
487/38 National Market, Peeragarhi
Delhi-110087. .....Petitioner
Versus
Sh. Nand Kishore
S/o Sh. Kishore Lal
R/o 487/38, National Market, Peeragarhi
New Delhi-110087. ......Respondent
No. 26242/16 Page no. 1 of 14
JUDGMENT
1. This judgment is in respect of petition under section 14 (1) (a), (g) and (j) of Delhi Rent control Act, 1958 (DRC Act) filed on behalf of the petitioner Smt. Khem Chand Shokin against Sh. Nand Kishore, the respondent.
2. The epitome and long and short of the case of the petitioner is as follows:
"That petitioner is the owner/landlord of premises no. 487/38, National Market, Peeragarhi Delhi-110087 (hereinafter referred to as 'tenanted premises'). Respondent is a tenant in the property for the last three years at the rent of Rs. 750/- per month excluding of electricity and water and the tenancy was oral and no written agreement was ever executed between the petitioner and the respondent. It is further the case of the petitioner that property in question has been built from MITTI KA GARA and is an old construction in a dilapidated condition which requires to be demolished and reconstructed. The tenanted property comprises of one room, common laterin, bathroom open space and one shop measuring 10 X 12 facing the road side on the ground floor was grab by the respondent on the ground floor more than one tenant. The respondent covered the veranda and open space without the consent of the landlord. Further, respondent has been in arrears of rent from February 2004 onwards at the rate of Rs. 750/- per month excluding of water and electricity charges and notice dated 26.04.2005 was sent to him by registered post terminating his tenancy rights and the same was served on the respondent which was sent to him on 30.07.2005".
3. Respondent contested the present petition by filing detailed written statement, the contents of which in brief are as under:
No. 26242/16 Page no. 2 of 14 "That the eviction petition is not maintainable under the provisions of section 14 (1) (a) (g) & (j) of DRC Act as the tenanted property is newly constructed building and is in a suitable inhabitable condition and does not require any re-construction/alteration. Respondent has never been in arrears of rent infact the petitioner had been refusing to accept the rent from the respondent with ulterior motives as a result of which respondent was constrained to deposit the rent from January 2005 to August 2005 before the Court of Sh. R.K. Sharma, the then ARC, Delhi. The rate of the tenanted property is Rs. 300/- per month. Further respondent is also the tenant in one shop measuring 10 X 12 on the ground floor of the same premises at the monthly rate of Rs. 350/- per month including water and electricity charges. Petitioner has been harassing the respondent by pressurizing him to vacate the tenanted property and therefore present petition is completely wrong and frivolous."
4. Replication was filed on behalf of the petitioner remonstrating the contents of the written statement and reinforcing the contents of the petition.
5. It is pertinent to note that vide order dated 10.02.2011, pursuant to the application under Order 22 Rule 3 of Civil Procedure Code, 1908 (for short 'CPC'), LR of the petitioner Smt. Kusum was substituted as the petitioner got expired.
6. In plaintiff's evidence, plaintiff got examined Smt. Kusum, W/o Late Sh.
Khem Chand as PW-1 who tendered her evidence by way of affidavit Ex.PW-1/A and also relied upon the documents ie. Photocopy of Khasra Girdawari is Mark A, Copy of house tax assessment by MCD is Ex. PW-1/2 (OSR), photocopy of house tax receipt is mark B (objected to regarding mode of proof as the house tax receipt and assessment does not pertain to the property number as well as name of the owner of property), Site Plan Ex. PW-1/4, photocopy of two No. 26242/16 Page no. 3 of 14 electricity bills are mark-C (Colly), photocopy of permanent disconnection of electricity dated 11.01.2005 is mark-D, photocopy of bill of water charges alongwith payment receipt are Mark-E (Colly) (objected to regarding mode of proof as there is no property number on the receipt and name of the owner), photocopy of police complaint dated 17.04.2005 to PS Paschim Vihar is Mark-F, photocopy of notice of termination of tenancy dated 26.04.2005 is Mark-G and postal receipt is Ex.PW-1/9, Inspection report dated 16.05.2007 in respect of the premises no. 487/38, National Market, Peeragarhi, New Delhi is Ex. PW-1/10, Carbon Copy of legal notice dated 30.07.2005 is Mark-H and original postal receipt alongwith receipt AD Card are Ex.PW-1/11 (colly), there was no document on record which is mentioned as Ex. PW-1/12 in her evidence affidavit Ex. PW-1/A. She was cross-examined on behalf of respondent. Thereafter, petitioner's evidence stood closed vide order dated 31.08.2017.
7. During respondent's evidence, respondent Sh. Nand Kishore got examined himself as RW-1 vide his affidavit Ex. RW-1/A and also relied upon the documents i.e. Certified copy of the order/proceedings dated 02.07.2005 as Ex. RW-1/A, Deposit of rent receipts are Ex. RW-1/B (colly 53 pages), statement of parties as Ex. RW-1/A1 and reply dated 09.08.2005 as Ex. RW1/C. He was cross-examined on behalf of petitioner. Thereafter, respondent's evidence stood closed vide order dated 07.03.2018.
8. After consummation of respondent's evidence, final arguments were advanced. Ld. Counsel for petitioner has argued with vehemence that the petitioner has successfully assembled all the ingredients of the provisions of Section 14 DRC Act . Ld. Counsel for the petitioner attracted the attention of the court to the testimony of the petitioner and respondent as well as the No. 26242/16 Page no. 4 of 14 documentary evidence to assert the point that respondent has been in arrears of rent after the year 2003 which fact has been admitted by the respondent in his cross examination. Further, the building in question where the tenanted property is situated is admittedly very old and which required demolition and reconstruction. Further, respondent has also illegally constructed a shed thereby causing substantial damage to the property.
9. Ld. Counsel for the respondent on the other hand has not led any arguments. Although liberty was granted to the respondent to file written arguments, but the same has not been filed.
10. To build the case under Section 14 (1) (a) of DRC Act, petitioner is required to prove the following ingredients:-
(i) That there is relationship of landlord and tenant between the parties;
(ii) Rate of rent;
(iii) That there were arrears of legally recoverable rent at the time of issuance of legal demand notice;
(iv) That a valid legal demand notice was duly served upon the respondent; and
(v) That the respondent has neither paid nor tendered the entire arrears of legally recoverable rent within two months of date of receipt of legal demand notice.
These ingredients are discussed one by one as below:
(i) Relationship of landlord and tenant between the parties.
No. 26242/16 Page no. 5 of 14 Petitioner has claimed that the tenancy was oral @ Rs. 750/- per month exclusive of electricity and water charges. On similar lines, PW-1 has deposed that respondent is tenant in respect of one room, common laterin, bathroom, open space veranda forming part of the 487/38 National Market, Peeragarhi, Delhi at monthly rent of Rs. 750/-. The site plan showing the rented portion is Ex.
PW-1/4. Relationship of landlord and tenant between the parties has nowhere been disputed by the respondent.
In view of this, relationship of landlord and tenant between the parties stands established.
(ii) Rate of rent;
Petitioner has claimed the rate of rent to be Rs.750/- per month excluding water and electricity charges, whereas respondent has claimed the rate was Rs.300/- per month which he has been paying regularly. Petitioner has not filed any documentary evidence or rent receipts to prove that the rate of rent is Rs. 750/- per month. Although, respondent has not cross-examined PW-1, nonetheless it is the bounden duty of the petitioner to prove that the rate of rent at the very inception of the tenancy was Rs. 750/- per month and the respondent had at some point of time paid this much amount per month as rent.
The admitted rent in respect of the tenanted property is Rs. 300/- per month. During cross-examination of RW-1 when the question of rate of rent was posed to him, RW-1 stated that initially the rate of rent was Rs. 80 per month. Thereafter, no counter suggestion was put forth to RW-1 to assert the fact that rate of rent had been Rs. 750/- per month right from the inception of the tenancy.
No. 26242/16 Page no. 6 of 14 Thus, petitioner has failed to prove that the rate of rent is Rs. 750/- per month, therefore, the admitted rate of rent Rs. 300/- is held to be the rate of rent for the purpose of this petition.
(iii) That there were arrears of legally recoverable rent at the time of issuance of legal demand notice;
PW-1 has testified that respondent stopped paying the rent from February 2004. No suggestion was put to PW-1 on behalf of respondent that respondent paid the rent from February 2004 onwards to the petitioner. Although, in his affidavit Ex. RW-1/1, respondent/RW-1 has claimed to have been paying the rent regularly till November 2004 but he has failed to file any documentary evidence in support of his claim.
It is settled law that when the petitioner alleges non-payment of rent under section 14(1)(a) of DRC Act, the onus lies upon the respondent/tenant to prove that he has paid the rent. It has been held in Sukhanand Vs. IVth Additional District Judge, Bulendshahar & ors. 1994(2) AIRCJ 27 that "the onus to show payment of rent lies on the tenant and oral testimony of tenant in regard to the payment of rent claiming discharge of liability in this regard cannot be admitted to be worth reliance at all". It is also held in Raghubir Prasad Vs. Rajendra Kumar Gurudev, 1993(2) R.C.R. (Rent) 234 that "on default in payment of rent the onus to show payment of rent lies on tenant". It is also held in Satya Prakash Vs. District Judge Ghaziabad, 1982(1) R.C.R. (Rent) 295 that "if in a petition tenant alleges that rent is paid, then as per Evidence Act, burden to prove payment lies on the tenant, as he alleges that payment is made".
Although, respondent has claimed to have deposited the rent in the court pursuant to the order of the court under section 15(1) of DRC Act but what is to No. 26242/16 Page no. 7 of 14 be seen is whether respondent was in arrears of rent at the time of service of legal demand notice. Respondent having failed to prove that he has tendered and paid the rent to the petitioner after the year 2003, it is held that petitioner has successfully establish this ingredient. Consequently, respondent is held to be in arrears of rent in respect of the tenanted property from February 2004 onwards.
(iv) That a valid legal demand notice was duly served upon the respondent; and This is one of the essential ingredients of the provision of section 14 (1) (a) of DRC Act. If no notice demanding arrears of rent is served, the ground of eviction under clause (a) would not be available to the landlord and the petition on that ground would not lie. The word "demand" has to be given its ordinary meaning. The expression "notice of demand" means a notice asking the tenant to pay the arrears of rent. In order words, the tenant must be called upon to pay the arrears of rent. Law, no doubt, does not require that a demand notice should be in any prescribed form. Particular words are not required to be used but the notice must make a demand of arrears of rent. A mere statement of arrears without anything more is not sufficient. The requirement of the service of notice of demand is to offer an opportunity to the tenant to pay the arrears of rent within months of the service of notice of demand. That purpose cannot be achieved only when the demand is met. The tenant must be asked to pay rent or face eviction. In the absence of the demand it cannot be said that the tenant had been given the required opportunity to save his tenancy from the consequences of default by not paying the rent.
In the instant case, legal notice mark-G dated 26.04.2005 is stated to have been served upon the respondent. However after trawling through the said notice, it is noted that there is no demand of paying the arrears of rent and instead No. 26242/16 Page no. 8 of 14 respondent has been informed that he has become a trespasser due to non- payment of rent and therefore he may hand over the peaceful and vacant possession of the tenanted property. In the absence of any demand for payment of arrears of rent, the notice cannot to be said to be valid. In Rama Krishna Prasad Vs. Mohd. Yahiya AIR 1960 ALL 482, it was held that a notice unconditionally terminating the tenancy and asking the tenant to vacate the premises irrespective of whether he pays the arrears of rent or not, would not be a notice of demand.
The notice is stated to be served upon the respondent by registered AD and UPC which are collectively Ex. PW-1/9 (Colly), but in view of the above discussion, the demand notice is held to be invalid as the same has not accorded any opportunity to the respondent to deposit the arrears of rent.
(v) That the respondent has neither paid nor tendered the entire arrears of legally recoverable rent within two months of date of receipt of legal demand notice.
Petitioner has claimed that the respondent has failed to deposit arrears of rent however since it has been held in the preceding paragraph that the notice of demand sent to the respondent was not valid therefore respondent could not be said to have any opportunity to tender the arrears of rent. This issue thus becomes redundant in view of the factual position emerged herein.
In the light of the above discussion, since petitioner has failed to prove that valid legal demand notice was served upon the respondent calling upon him to pay the arrears of rent, the case of the petitioner under section 14 (1) (a) does not lie and is accordingly dismissed.
No. 26242/16 Page no. 9 of 14
11. Now embarking upon the case of the petitioner under section 14 (1) (j) of DRC Act.
12. No hard and fast definition of "substantial damage" is possible. Each case depends upon its own facts. No exhaustive list of constructions that constitute damage can be given. The determination of that question depends on the facts of each case. Any alteration 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".
13. Damage signifies an act which has the effect of diminishing or impairing the utility and value of something or endangering its safety or shortening the period of its utility and where damage is considerable and not of an minor or paltry nature, it would be considered to be substantial. In a case under section 14 (1) (J) of the Act, the landlord must establish by positive evidence that the alterations made by the tenant have materially impaired the utility or value of the demised premises.
14. In the judgment in Suraj Prakash Vs Baijnath Bhawani and others 103 (2003) Delhi, for a case to fall under Section 14 (1) (J) of the Act, the Supreme Court has laid down the following propositions.
(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 :
(iv) the said construction has materially affected the tenancy premises and further that the construction which had been carried out by the tenant had materially altered the premises :
No. 26242/16 Page no. 10 of 14
(v) Court must determine the nature, character of the construction and the extent to which they make 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 or 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 alteration or 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.
15. To prove her case under this clause, petitioner has testified in para no. 6 of her testimony as follows:
"That the respondent had also made alternation, addition and covered a veranda by constructing shed and thus the respondent had damaged the property and in order to bring the property in its original conditions the deponent is required to spend Rs. 1 lac."
16. Apart from the aforesaid extract, there is no other evidence or for that matter any averment that the respondent has caused substantial damage to the No. 26242/16 Page no. 11 of 14 tenanted property. In the petition, though the petitioner has squealed that the respondent has carried out illegal construction by covering the veranda by constructing shed, but it is not clear as to how the same has caused substantial damage to the tenanted property. PW-1 has not filed any photographs to show that the shed has been constructed in the veranda which has caused substantial damage to the property. It is thus limpid that the testimony of the petitioner on this count suffers from equivocation and prevarication and thus cannot be given any credence. Thus, petitioner has failed to build her case even under section 14 (1) (j) of DRC Act.
17. Now embarking upon the case of petitioner under clause (g) of section 14 (1) of DRC Act. Twin requirements which must be satisfied under this clause are as follows:
(i) The premises must be required bona fide by the landlord for the purpose of building or re-building or additions or alterations; and
(ii) The court must be satisfied that the specified work cannot be carried out without the premises being vacated.
PW-1 has testified that the tenanted property is very old one having been built 50-60 years ago and made of "MITTI KA GARA" and is in dangerous/dilapidated condition and can collapse any moment therefore the same is required to be demolished and for re-construction eviction of the respondent from the tenanted property is required. To corroborate this aspect, PW-1 has also filed report of inspection as Ex. PW-1/10. Although, in the report it has come that building in question is very old and has developed major and minor cracks but petitioner has not filed any photographs to fortify her case.
No. 26242/16 Page no. 12 of 14 Respondent on the other hand in his evidence has claimed that the building in question is made of cement and bricks, which is also evident from the report filed by petitioner only as PW1/10. He also denied that the tenanted property is around 60 years old. Apart from the abovenoted discrepancies, it is worthwhile that more than the age of the property as well as its physical condition, it is to be seen that section 14 (1) (g) of DRC Act has to be read in tandem with section 14 (8) of DRC Act, which is reproduced herein below:
"No order for the recovery of possession of any premises shall be made on the ground specified in clause (g) of the proviso to sub- section (1), unless the Controller is satisfied that the proposed reconstruction will not radically alter the purpose for which the premises were let or that such radical alteration is in the public interest, and that the plans and estimates of such reconstruction have been properly prepared and that necessary funds for the purpose are available with the landlord."
In Jagdish Prasad Vs. Hamid Hussain 1966 DLT 189, it was held that "though the expression "Plans and estimates of reconstruction have been properly prepared" used in Section 14 (8) of the Act does not mean that the plans must be sanctioned by the Competent Authority, yet it is not possible to lose sight of the fact that until the plans are sanctioned, it would be exceedingly harsh and unjust to the tenants to ask them to move out of the premises in order to enable the landlord to reconstruct the same and then have recourse to the provisions contained in Section 20 (3), if the landlord failed to commence the work or re- building within one month of the specified date, etc. On a reasonable construction of the provisions it may be necessary for the landlord, in order to establish that he requires the premises bona fide for re-building or reconstruction, No. 26242/16 Page no. 13 of 14 to establish in addition to what is required by Section 14 (8) that he has also obtained sanction of the competent authority in respect of the building plans".
Thus, in view of the dictum of the abovesaid judgment, it is plain that Controller has to be satisfied that the plans and estimates of such reconstruction have been properly prepared and that necessary funds for the purpose are available with the landlord. It is discernible from the evidence of PW-1 that on both these aspects no evidence has been led on behalf of the petitioner. In the absence of any evidence that the petitioner has any means as well plan and estimates of reconstruction in place, the case of petitioner cannot be held to be successful under section 14 (1) (g) of DRC Act.
Before parting with this order it is also highlighted that during the examination in chief of PW-1 Ms. Kusum, objections were raised with regard to documents, house tax, receipt, Mark B document i.e. copy of bill of water charges alongwith payment receipt Mark E. Since these documents have not been proved by the petitioner by summoning the witness from the concerned departments, therefore, these documents cannot be read in evidence. Objections raised on behalf of respondent are accordingly sustained.
Conclusion:
In the light of the above discussion, it is held that the petitioner has not been successful in proving her case against the respondent qua section 14 (1) (a) (g) and (j) of DRC Act. Thus, the petition stands dismissed. Parties are left to bear their own costs.
File be consigned to record room. NAVJEET Digitally signed by NAVJEET BUDHIRAJA BUDHIRAJA Date: 2018.07.20 13:17:26 +0530 Announced in the open court on (NAVJEET BUDHIRAJA) 16th Day of July, 2018 ACJ/CCJ/ARC(W)/16.07.2018
This judgment contains 14 pages and each page has been signed by me.Digitally signed by
NAVJEET NAVJEET BUDHIRAJA
BUDHIRAJA Date: 2018.07.20
13:17:35 +0530
(NAVJEET BUDHIRAJA)
ACJ/CCJ/ARC(W)/16.07.2018
No. 26242/16 Page no. 14 of 14