Shri Pearey Lal vs Shri Surendra Nath & Ors.
2009 Latest Caselaw 3400 Del

*         HIGH COURT OF DELHI : NEW DELHI

           RCSA. No.8/2002 & CM No.27/2002

%            Judgment reserved on: 4th August, 2009

             Judgment delivered on: 27th August, 2009

Shri Pearey Lal
S/o. Shri Fateh Chand
Since deceased now represented by:-

(1) Shri Ghansham Sharma,
    S/o. Late Shri Pearay Lal,
    R/o. V-2, Green Park Extension,
    New Delhi                            ....Appellants
                     Through: Mr. V.B. Andley, Sr.
                               Adv. with Mr. Rajinder
                               Mathur, Adv.

                  Versus

1. Shri Surendra Nath
   S/o. Late Shri Daya Ram,
   R/o. 74/1, Yusuf Sarai,
   New Delhi.

2. Sarwati Devi (since deceased)
   Wd/o Late Shri Pearey Lal

    (a)    Radhey Sham Sharma
           S/o. Late Shri Pearey Lal

    (b)    Rakesh Sharma
           S/o. Late Shri Pearey Lal

           Both residents of
           V-2, Green Park Extension,
           New Delhi.


RCSA No.8/2002                           Page 1 of 19
    (c)    Veena Sharma
          D/o. Late Shri Pearey Lal
          R/o. 3/52, Suklan Gali,
          Chota Bazar, Shahdara
          Delhi-110032.

   (d)    Sundri Sharma
          D/o. Late Shri Pearey Lal
          C/o. Shri Guru Dutt Sharma
          R/o. House No.1, Jawahar Colony,
          NIT, Faridabad.

   (e)    Rajni Sharma
          D/o. Late Shri Pearey Lal
          R/o. A-64, Second Patel Nagar,
          Naya Bus Adda, Ghaziabad.

   (f)    Shri Ghansham Sharma
          S/o. Late Shri Pearey Lal,
          R/o. V-2, Green Park Extension,
          New Delhi.                 ....Respondents.

                      Through: Mr. M.R. Shamshad and
                               Mr. Shahzad Hussan,
                               Advs for R-1.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                        Yes

2. To be referred to Reporter or not?                     Yes

3. Whether the judgment should be reported
   in the Digest?                                         Yes




RCSA No.8/2002                             Page 2 of 19
 V.B.Gupta, J.

Present appeal has been filed against judgment dated

6th December, 2001 of Rent Control Tribunal (for short as

„Tribunal‟), Delhi, vide which appeal of respondent no.1

was allowed.

2. Brief facts are that respondent no.1, filed petition

under Section 14(1)(j) of Delhi Rent Control Act (for short

as „Act‟) in respect of a shop forming part of property

No.74/5, Yusuf Sarai, New Delhi. It was alleged in the

petition that Pearey Lal (since deceased)-the tenant,

unauthorizedly and illegally removed the walls as shown

yellow in site plan. He also unauthorisedly constructed

mezzanine in the shop as shown in red in site plan and

also made an opening in the roof of the shop. He also made

some encroachment upon the terrace of shop on which he

had no right. The tenant caused substantial damage to the

premises in question and changed entire identity of the

shop. The estimate loss assessed by respondent no. 1 was

Rs. 50,000/-.

3. Eviction petition was contested by Pearey Lal

(deceased), who in written statement, admitted

relationship of landlord and tenant between the parties. It

was stated that shop in dispute was taken on rent by Sh.

Fateh Chand, father of late Pearey Lal in year 1950,

from Daya Ram, father of respondent no. 1,

where Fateh Chand was carrying on Halwai shop. At that

time, shop consisted of a Phoos chappar in front and at its

back portion was having pucca roof on wooden beams and

stone slabs and portion behind it, had a tin roof. In

December, 1973, Daya Ram-landlord, permitted Fateh

Chand-tenant, to change the said tin roof into a pucca roof

and to make necessary repairs at his own costs and

consequently, rent was increased to Rs. 35/- p.m. On death

of Daya Ram, his son Surendra Nath-respondent no. 1

herein became the landlord, while and on death of Fateh

Chand, his son Pearey Lal became tenant.

4. In January, 1985, respondent no. 1 permitted Pearey

Lal to change the roof of the entire shop and to increase

the height by two feet, at his own cost for the purpose of

construction of mezzanine in the shop. For granting this

permission, respondent no. 1, took Rs.10,000/- from the

tenant. As per said permission, the tenant got roof of the

shop changed and increased the height of room by two

feet.

5. Regarding removal of walls, it is alleged that petition

does not specify when and how the walls were removed.

With regard to construction of mezzanine, it is stated that

it is neither illegal nor unauthorized. In any case, the same

has been constructed with the permission of respondent

no. 1, the landlord.

6. With regard to opening in roof, it is stated that it is

neither unauthorized nor is it without consent and

knowledge of landlord. Terrace over the shop is under

tenancy of tenant. It is denied that any damage has been

caused to tenanted premises or identity of shop has been

changed in any manner.

7. In replication, it was denied that permission was

granted to change roof of the entire shop to raise height by

two feet. It is alleged that under the grab of repair of roof,

height of roof had been raised and holes made in roof,

besides construction of unauthorized mezzanine, much

after January, 1985. It has caused substantial damage to

the property by illegal construction.

8. During pendency of proceedings before Additional

Rent Controller, Pearey Lal-tenant died on 27.5.1989, and

his legal heirs were brought on record.

9. Additional Rent Controller, Delhi, vide order dated

20th April, 1999, dismissed the petition filed by respondent

no. 1-landlord.

10. Respondent no.1, thereafter filed appeal before the

Tribunal. Vide impugned judgment, the tribunal held that,

case under Section 14(1)(j) of the Act is made out and

consequently, passed the following order;

"Respondent shall close the opening towards the roof within two months from the date of this order. Respondent shall pay to the appellant a compensation of Rs.10,000/- for the construction of mezzanine in the shop within two months from the date of this order. In the event respondent fails to do so the Ld. ARC shall be entitled to pass the eviction order U/s 14(1)(j) of the DRC Act against the respondent."

11. It is contended by learned counsel for appellant

that in December, 1973, landlord permitted the tenant

to change the tin roof into a pucca roof at his own cost.

Consequently, rent was increased to Rs. 30 p.m. In

January, 1985, landlord permitted the tenant to change

the roof of the entire shop and to increase the height

by two feet at his own cost, for purposes of

construction of mezzanine in the shop. For granting

this permission, landlord took a sum of Rs.10,000/-

from the tenant.

12. It is further contended that opening in roof is

neither unauthorized nor is it without consent and

knowledge of the landlord. This opening in roof was

made in January, 1985. Moreover, terrace over the

shop is also under tenancy of the appellant. Thus,

appellant has not made any unauthorized construction

and opening of the roof does not amount to substantial

damage.

13. It is also contended by learned counsel that

respondent no. 1, admitted in his statement that shop

has been made beautiful as compared to what was let-

out to the appellant and respondent no. 1 in his entire

statement, nowhere stated that any substantial

damage has been caused to the premises.

14. It is further contended that the roof over the shop

in question forms part of tenanted accommodation and

appellant was using the roof earlier as well from back

side, with the aid of stairs and opening in roof from the

shop, therefore, cannot be said to be substantial

damage.

15. It is also contended that landlord also admitted in

his statement, that rent was increased and tenant was

permitted to change the tin roof into pucca roof and

was further permitted to raise height of roof by two

feet. As such, whatever has been done, it has been

done with the consent of landlord and, thus, no

substantial damage has been caused to the tenanted

premises by opening the roof.

16. Learned counsel for appellant in support of its

contentions cited following judgments;

(i) Rawal Singh vs. Kwality Stores and Anr, AIR

1986 Delhi 236.

(ii) Bhal Singh Malik v. Dr. Nazar Singh and Anr.

1976, RCR Page 145.

17. On the other hand, it is contended by learned

counsel for respondent that, this is second appeal and

scope of second appeal is very limited. Appellant has

nowhere mentioned in the appeal, as to what is the

substantial question of law in this case. On this point,

learned counsel cited a decision of this Court reported

as;

Ramesh Bhaskar Kale (since deceased) through

LRs v. Harkirat Sodhi, 134 (2006) Delhi Law

Times 363.

18. It is further contended that appellant/tenant

unauthorisedly and illegally removed the wall and also

unauthorizedly constructed mezzanine in the shop.

Moreover, tenant made an opening in roof of the shop

and has made encroachment upon terrace of the shop,

for which tenant has no right and, thus he had caused

substantial damage to property.

19. It had been admitted by learned counsel for

respondent that though appellant/tenant was

permitted to carry on repairs, but no permission was

given to tenant to make hole in roof of the shop.

Admittedly, appellant made a hole in the roof of the

shop, which is a substantial damage to the tenanted

property. On this point, learned counsel referred to

decision of Supreme Court reported as;

Gurbachan Singh and Anr. v. Shivalak Rubber

Industries (1996) 2 Supreme Court Case 626.

20. Short question which arises for consideration is

as to what is the substantial damage and whether

construction of mezzanine and opening of roof from

inside the shop, constitutes substantial damage or not.

21. It is an admitted case of the parties, that Pearey

Lal, deceased (tenant) was given written permission to

carry out addition, alteration as per agreement Exb.-

AW1/R1.

22. As per this agreement, respondent no. 1- landlord,

gave permission to tenant, to change the roof of shop

at his own expenses as well as to increase the height of

the roof by two feet. Besides this, no other alteration

could be done.

23. It is a cardinal rule of evidence, that where

written documents exist, they shall be produced as

being the best evidence of their own contents and oral

proof cannot be substituted for the written evidence.

Section 91 of Indian Evidence Act says so and it read

as under:

"91. Evidence of terms of contracts, grant and other dispositions of property reduced to form of document - When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained.

Exception 1. - When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.

Exception 2. - Wills admitted to probate in India may be proved by the probate.

Explanation 1. - This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document and to cases in which they are contained in more documents than one.

Explanation 2. - Where there are more originals than one, one original only need be proved.

Explanation 3. - The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.

24. This section deal with the exclusion of oral

by documentary evidence. According to it, that

the contents of all documents must be proved by

primary evidence, which means the document

itself in original, except in those cases in which

secondary evidence is admissible. It is based on

the best evidence rule, viz that the best evidence

existing and attainable must always be given.

When fact is required to be proved by oral

evidence, the evidence should be direct, and

when the transaction sought to be proved has

been reduced to the form of a document, that

document must, if available, be produced.

Therefore, when the terms and conditions of a

contract, or of a grant, or of any other

disposition of property have been set out in

writing by agreement of parties and in the case

of all documents required by law to be in writing,

the document is intended to be a record of the

transaction and therefore no other evidence shall

be given to prove the transaction except the

document itself or secondary evidence thereof

when such evidence is admissible. Oral evidence

is excluded equally when a document does exist

and when the law requires the matter to be

reduced to the form of a document.

25. It also a cardinal rule of evidence, not one of

technicality, but of substance, which it is

dangerous to depart from, that where written

documents exist, they shall be produced as being

the best evidence of their own contents. It is

likewise a general and most inflexible rule, that

whenever written instruments are appointed,

either by the requirement of law, or by contract

of the parties, to be the repositories and

memorials of truth, any other evidence is

excluded from being used, either as a substitute

for such instrument, or to contradict or alter

them. This is a matter both of principle and

policy; of principle because such instruments are,

in their own nature and origin, entitle to a much

higher degree of credit than parol evidence; of

policy, because it would be attended with great

mischief if those instruments, upon which men‟s

rights depended, were liable to be impeached by

loose collateral evidence. The same principle

applies where private parties have, by mutual

compact, constituted a written document, the

witness of their admission and intentions. Where

the terms of an agreement are reduced to

writing, the document itself, being constituted by

the parties as the exposition of their intention, is

the only instrument of evidence in respect of that

agreement, which the law will recognize so long

as it exists for the purpose of evidence.

26. Thus, in view of Section 91 of Evidence Act

when there is written document, no amount of

oral evidence can be substituted for that written

document.

27. It is an admitted case of parties, that vide

Ex.AW1/R1, written permission was granted to

tenant by landlord with respect to;

(i) Change of roof;

(ii) To increase height of roof by two feet.

28. This document specifically states that

"Except for this no other alteration can be done".

29. It is an admitted fact that, tenant

constructed mezzanine floor and made hole in

the roof of shop, for which no permission was

granted.

30. Case of appellant is that roof forms part of

tenancy and tenant was earlier using the roof.

Therefore, opening from shop towards roof, does

not amount to substantial damage.

31. Tribunal on this issue held;

16."The question of causing substantial damage came in the judgments of our own High Court cited by the learned counsel for the appellant as reported in 1979(1) RCR Pg. 407. In this case lowering of the floor of the house was held to be causing substantial damage within the meaning of Sec. 14(10) of the DRC Act. Another relevant judgment is 21(1982) DLT 1. In this case one heavy big size cooler has been fixed on the ventilator on the East side door by cutting holes in the wall, One wash basin has been fixed by cutting holes in the southern wall. The wooden show almirahs have also been fixed on the walls by cutting holes in the walls. The previous Dochhati has now been extended to the whole of the shop by cutting further four holes in the 5" thick western partition wall and eastern wall by fixing two more karries in the said holes. The stability of the partition wall had weakened. The court held that substantial damage has been caused."

17."In the present case, therefore, it is to be considered considering the judgments aforesaid if what has been done by the respondent is substantial damage to the premises. Any construction by which the structure of the premises is altered amounts

to substantial damage to the premises as per the said judgment. Any structure which impairs the rights of the landlord amounts to substantial damage to the premises. Any structure which weakens the wall or puts additional load on the wall amounts to substantial damage to the premises. Admittedly the mezzanine has been constructed and opening has been made towards the roof. This is changing of the structure of the premises. Where structure of the premises are changed which are detrimental to the interests of landlord it amounts to substantial damage within the meaning of Sec. 14(1) (j) read with Section14 (10) of the DRC Act. The court below being impressed by the statement of the appellant that the beauty of the shop was enhanced forgot to look into the changes in the structure which were cause d which were putting loads on the wall. The result was that it dismissed the petition. Appellant was just in raising the grievance that after the permission of 1985 was granted respondent had opened the opening towards the roof from the shop and has constructed mezzanine. This opening has effected the rights of the landlord to raise the structure over the roof of shop in question. It is a substantial damage within the meaning of Section 14(10) of the DRC Act. Consequently, case u/S 14(1) (j) was made out. The impugned judgment, therefore, cannot be maintained as far as the mezzanine and opening towards the roof is concerned."

32. Tribunal further held;

"Assuming that the respondent was not entitled to use the roof since it was a single storey shop , its user was permissive and in any case roof is not part of the tenancy accommodation. At the most it could be an amenity attached to the shop in question which was given in tenancy in the form of Kutcha phoos, shop with stone slabs, wooden karies and attached tin shed. Since at the most roof falls in the category of an amenity no importance can be attached to the argument of Sh. Andlay in this regard."

33. In Bhal Singh Malik (Supra) cited by learned

counsel for appellant, it was observed that roof and

stair case are part of building specially when it is one

storeyed building and in the absence of contract to

contrary, presumption is that these were let out along

with the building.

34. Even assuming for sake of arguments that roof

formed part of tenanted premises, tenant has no right

to make hole in the roof of tenanted premises. Making

of hole in the roof of a premises certainly amounts to

causing substantial damage.

35. Regarding construction of mezzanine, as per Ex.

AW1/R1, no permission was granted to the appellant.

36. Thus no infirmity or illegality can be found in the

impugned judgment. I also find no reason to disagree

with the well reasoned findings of the Tribunal.

Present appeal is, therefore, not maintainable and it is

dismissed with costs which are assessed at Rs. 20,000/.

Costs be paid by appellant to respondent, within four

weeks, failing which trial court shall recover the same

in accordance with law.

CM No. 27/2002

37. Since, appeal has been dismissed, consequently

this application also stands dismissed.

38. Trial court record be sent back.

27th August, 2009                         V.B.GUPTA,
J.
bhatti