Shri Dilip Kumar Jain & Others vs Shri Om Prakash Gupta & Others
2011 Latest Caselaw 5312 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment reserved on: 20.10.2011
                         Judgment delivered on: 02.11.2011

+                         CM(M) No.1281/2005


SHRI DILIP KUMAR JAIN & OTHERS          ........... Petitioners
                    Through: Mr.Sarat      Chandra       and
                             Mr.Sachin Chandra, Advocates
                             for the petitioners        with
                             Mr.D.K.Jain, petitioner no.1.
              Versus

SHRI OM PRAKASH GUPTA & OTHERS        ..........Respondents
                  Through: Mr.Naresh      Khanna     and
                           Mr.Pramod Kumar Singhal,
                           Advocate for the respondent.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

     2. To be referred to the Reporter or not?                Yes

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

INDERMEET KAUR, J.

1. This petition under Article 227 of the Constitution of

India has assailed the order of the Rent Control Tribunal (RCT)

dated 06.05.2005 which has confirmed the findings of the

Additional Rent Control (ARC) dated 20.02.2001 whereby the

eviction petition filed by the landlord namely Dilip Kumar Jain and

others (being the legal heirs of J.L. Jain) had been dismissed under

Section 14(1)(c) and 14(1)(j) of the Delhi Rent Control Act (DRCA).

2. The suit premises comprised of three shops numbered as

shops No. 1205, 1206 & 1207 measuring 9" X 8-½" , 9" X 9" & 9"

X 8" respectively located in ward No. XVI, Pyare Lal Road, Karol

Bagh, New Delhi. The rent for shops No. 1205 & 1206 was `5.05

per month excluding electricity; rent for shops No. 1207 was `5.06

per month excluding electricity. The tenancy was oral.

3. It is not in dispute that an earlier eviction petition

bearing E.P. No. 430/1955 had been filed by the landlord under

Section 14 (1)(e) of the DRCA which had been compromised on

20.11.1956. The eviction petition had been withdrawn and a

decree of `133.08 as arrears of rent had been passed in favour of

the landlord. Relevant would it be to extract this compromise

which had been recorded by the Court of then learned Sub-Judge:-

"The above suit for eviction on behalf of the petitioner be dismissed and a decree of `133.08 for the entire arrears be passed in favour of the petitioner and against the respondent. Regarding standard rent the parties have inquired and the present rent is correct and this is the standard rent. The respondent shall not use shop No. 1205 to 1206 for residential purposes. The total amount deposited be paid to the petitioner."

4. The vehement contention of learned counsel for the

petitioner is that in this compromise, there is a mention of shops

No. 1205 & 1206 only; there is no mention of shop No. 1207.

Contention being that in this compromise EX.AW-1/2 it had been

specifically recorded that the tenant will not use shops No. 1205

& 1206 for a residential purpose; meaning thereby that only shop

No.1207 could be used for a residential purpose. This is

necessarily implied from the compromise recorded on 20.111956;

however, the entire suit premises is being used for commercial

purpose and this amounts to a misuser under Section 14(1)(c) of

the DRCA. Learned counsel for the petitioner has also drawn

attention of this Court to the survey report (Ex.AW-1/8) dated

01.07.1954 wherein the survey conducted by the municipal body

shows that the aforenoted premises i.e. shops No. 1205, 1206 &

1207 were for a residential user; vehement contention of the

landlord being that Ex.AW-1/8 has established that the premises

were for a residential purpose but the entire premises being used

for a commercial purpose amounts to a misuser. The ground of

eviction under Section 14 (1)(j) was to the effect that a substantial

damage has been caused to the premises by the tenant and this

had been evidenced in the testimony of RW-1 coupled with the

document Ex. AW-2/A (the report of the Architect) showing that

the verandah had been covered and wooden doors had been

removed. Learned counsel for the appellant has placed reliance

upon a judgment of the Punjab and Haryana High Court reported

in RCJ 1976 Page 3 titled as Chatter Sain vs. Bishan Lal to

substantiate his submission that the ground under Section 14(1)

(j) of the Act is clearly made out if the material value or utility of

the building is compromised i.e. if the verandah is covered and is

included as a part of the home which is a fact in the instant case;

thus, finding of the court below that the ground under Section

14(1) (j) has not been made out also suffers from a perversity and

is liable to be set aside.

5. Arguments have been rebutted. Learned counsel for the

respondent has submitted that this court in sitting in a

supervisory jurisdiction under Article 227 of the Constitution of

India and unless and until there is manifest error or a patent

illegality in the findings of the two courts below, no interference is

called for under Article 227 of the Constitution; to substantiate his

submission, reliance has been placed upon the judgment of this

court reported in 181(2011) DLT 48 titled as Badar Rabbani Qutbi

& Ors. Vs. Saiedan. It is pointed out that in the instant case

although the ground of 14(1) (j) has been impleaded but no date

has been given by the petitioner as to on which date the utility

and value of the building had been impaired; in the absence of

which the petition is liable to be dismissed forthwith; to support

this submission reliance has been placed upon a judgment of the

Punjab and Haryana High Court in Civil Revision No. 1575/1983

reported in 1984 (2) RCR page 572 titled as Madal Lal Saggi vs.

British Motor Car Company. It is submitted that the purpose of

letting has also to be explained by the landlord which is again

lacking in this case; petition is liable to be dismissed on this

ground alone; to support this submission, reliance has been

placed upon the judgment of 1969 RCR 263 titled as I.D. Malik vs.

Sh. Duli Chand and Ors. Reliance has also been placed upon AIR

1973 Rajasthan 35 titled as Sukhlal vs. Bhopal Singh, to support a

submission that a wooden frame or a shutter in the building or the

entrance is a construction of a nature which may not materially

alter the premises entitling the landlord to a ground of eviction;

the findings of the two courts below in no manner calls for any

interference, the petition is liable to be dismissed.

6. Record has been perused.

7. There are two concurrent findings of fact against the

landlord. This Court also has to keep in mind that the provisions of

Section 39 of the DRCA have since been repealed; right of second

appeal has been lost to the landlord; Article 227 of the

Constitution of India is not a substitute for an appellate

jurisdiction; even a first appeal under Section 38 of the DRCA is

permissible only on a question of law.

8. With this background, the contentions raised by the

respective parties have been considered.

9. The eviction petition shows that four grounds have been

impleaded i.e. under Sections 14(1) (a), (c), (j) and (k) of the

DRCA; the disputed premises are three rooms Nos. 1205, 1206 &

1207; even as per the petitioner his grand-father Bal Mukand Jain

had created this tenancy in favour of the respondent in the year

1950; there was no written agreement. The compromise decree

Ex. AW1/2 shows that a compromise had been effected between

the parties on 20.11.1956 wherein it had been recorded that

tenant-respondent will not use Shop Nos. 1205 and 1206 for a

residential purpose; petition had been decreed and disposed of in

terms of this compromise; this was in a suit for eviction filed by

the grand-father of the petitioner namely, Bal Mukand Jain

himself. It is not in dispute that suit proceedings in which this

compromise decree had been passed was with regard to all the

three shops i.e. shop Nos. 1205, 1206 and 1207. It is thus clear

that due to an inadvertent mistake shop No. 1207 has been

omitted to be mentioned in this compromise decree. Vehement

submission of the learned counsel for the petitioner that shop No.

1207 was deliberately excluded and shop No. 1207 alone can be

used for residential purpose is not the gist of this compromise

recorded on 20.11.1956.

10. In this view of the matter the ground under Section 14(1)

(c) was not made out and rightly noted by the fact finding courts

below. Both the ARCT and RCT had held that although the

premises were being used for commercial purpose; i.e. Shop No.

1205 and 1206 but this was the purport and intent of this

compromise recorded on 20.11.1956. Appellant had permitted the

tenant to use these premises for a commercial purpose and the

compromise decree had clearly noted that these shops i.e. Shop

Nos.1205 and 1206 would not be used for a residential purpose.

Relevant would it be to state that this compromise was recorded

as far back as in 1956 also making mention of these premises as

"shops"; vehement submission of the learned counsel for the

petitioner before this court today is that these were not "shops"

but only rooms is thus negatived by this finding recorded on

20.11.1956.

11. Record also shows that an earlier eviction petition filed

by the petitioner under Section 14(1) (e) was disposed of on

28.05.1997 (Ex. RW1/1); it had clearly noted that the purpose of

letting of premises No. 1207 was not residential; it was

commercial. These facts were noted in the correct perspective by

both two courts below. It is also not amiss to mention that a Civil

Suit Ex. AW1/2, AW1/3 & AW1/4 was filed by the landlord where

there was a mention of premises No.1207. Ex.RW1/1 dated

28.05.1997 had clearly recited that premises No.1207 is not a

residential premise; thus this issue that shop no.1207 is not a

residential premise cannot again be agitated. Admittedly, order

dated 28.05.1997 has since been attained a finality; ground of

14(1)(c) was thus rightly not available to the landlord.

12. The eviction petition had also been dismissed under

Section 14 (1)(j). Parties had adduced their respective evidence.

The architect-Gurmukh Singh had proved his report as Ex. AW2/1;

in his cross-examination, he has admitted that he had never

visited this premises in dispute prior to 23.05.1993; he had not

seen any wooden door fixed at place marked A & B which had

been mentioned in the site plan; he has admitted that he had been

informed that the wooden door has in fact been removed. In his

cross examination, he has further admitted that the platform in

front of the premises was in existence in the premises from the

beginning i.e. as a part of the original structure and he cannot say

when the wall marked CD and EF as shown in the site plan Ex.-

AW2/2 and in his report Ex.-AW2/1 was built. This part of the

cross-examination of AW2 was not assailed; the witness also did

not know whether this construction as alleged by the plaintiff was

a part of the original or whether it had been made by the tenant

impairing the utility of the building; in fact, AW2 has admitted

that he had been informed that this platform was a part of the

original tenancy; all this becomes more relevant as there is no

pleading in the eviction petition as to when this unauthorized or

illegal platform/chabutara has been raised by the petitioner. In the

grounds of eviction also, it has been stated that the respondent

have caused substantial damages to the premises by fitting new

doors by breaking earlier doors, ceiling has also been damaged as

also the flooring which has resulted in substantial damage to the

building impairing its utility but there is not a whisper of the date

when this so called impairment in the utility of the building had

been done by the tenant. The testimony of this witness was thus

rightly not relied upon. The respondents on the other hand, have

come into the witness box as RW1 and RW2 to substantiate the

fact that this suit premises was in fact a commercial tenancy

which was being used in the same manner in which it had been

tenanted out to the respondent; it was an old construction.

13. Even presuming that the a wooden-door frame had been

set up, it did not in any manner amount to a substantial damage to

the premises within the meaning of Section 14(1)(j) which

premises had been admittedly been let out more than half a

century ago.

14. The impugned judgment in no manner calls for any

interference as no illegality or manifest error has been pointed out

by the petitioner which would enable this court to exercise its

supervisory power of superintendence under Article 227 of the

Constitution of India.

15. Petition is without any merit; it is dismissed.

INDERMEET KAUR, J.

NOVEMBER 02, 2011 rb