Citation Codes

Equivalent Citations

citation codes

Case Number

F.A.O No. 5 of 1995

Attorney(S)

Naresh Thanai
M.L.Lonial

Judges

Manmohan Sarin, J.

Acts

Section 50 of the Delhi Rent Control Act. Section 44 of the Delhi Rent Control Act
SECTION 44 DELHI RENT CONTROL ACT 1958
SECTION 50 DELHI RENT CONTROL ACT
Order VI Rule 17 CPC

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Smart Summary

Judgment Summary: Manmohan Sarin, J.

Factual and Procedural Background

This appeal challenges an order dated 12 October 1994 of Shri S.L. Bhayana, Additional District Judge. By that order the learned Judge restrained the appellant (landlord), his wife and son from interfering with the respondent carrying out repairs in tenanted premises bearing No. WP-552, Village Wazirpur, Delhi-52, and from removing debris left by the appellant. The respondent was permitted to repair the entire tenanted premises (including roof and walls) and to remove debris, offering it to the appellant; if the appellant did not accept it, the respondent could dispose of it.

Relevant factual narrative as set out in the opinion:

Respondent initially rented three rooms on the ground floor at Rs. 1,000 per month; an additional room was let at Rs. 900 per month (total Rs. 1,900 per month).
In August 1992 the appellant approached the respondent and another tenant with a proposal to demolish the existing building and reconstruct (basement, ground floor and first floor) and to provide accommodation in the reconstructed building. It is alleged that one other tenant (Shri Naresh Kumar Bansal) accepted and vacated the first floor, which was demolished.
The appellant alleges the respondent initially agreed but later refused to vacate his tenancy on the ground floor so reconstruction could proceed; instead the respondent filed a suit for perpetual injunction restraining interference with his possession.
A Local Commissioner reported a hole (about 2 ft × 2 ft) in the roof of one of the respondent’s rooms. In November 1992 the respondent exchanged one room for a portion of a hall to allow the appellant to construct a basement and staircase.
After demolition of the first floor, debris allegedly fell into the tenanted premises; the tenanted premises were old and damaged in rains, and the roof ultimately fell down. The respondent’s factory was closed and goods were wasted.
Procedurally, the respondent applied for permission to carry out repairs and to remove debris; the appellant opposed that application and challenged the Trial Court order on appeal. The present opinion disposes of that appeal.
The appeal was dismissed and the respondent was permitted to carry out repairs and remove debris within one year; the Trial Court file was ordered returned.

Legal Issues Presented

Whether the Trial Court had jurisdiction to permit the respondent (tenant) to remove debris and carry out repairs in the tenanted premises given the provisions of Section 44 of the Delhi Rent Control Act, 1958, and the bar under Section 50 of that Act.
Whether Section 44 (and related procedure before the Rent Controller) applies where the tenant seeks to repair premises entirely at his own cost or seeks only to remove debris placed by the landlord.
Whether the respondent was disentitled to equitable relief because he had not come to court with clean hands (i.e., whether the landlord’s allegation of fraud or inequitable conduct by the respondent prevented relief).
Whether the interim relief granted by the Trial Court was broader in scope than the relief claimed in the main suit, contrary to the principle that interim relief should not exceed the relief claimed.

Arguments of the Parties

Appellant's Arguments

The appellant argued that he had been put at a disadvantage by the respondent, who induced demolition of the first floor after getting the other tenant to vacate, but then refused to vacate his ground-floor tenancy; therefore the respondent was not entitled to equitable relief.
The appellant contended that the Trial Court lacked jurisdiction to permit repairs in a tenanted premises because the matter is governed by Section 44 of the Delhi Rent Control Act and that the Civil Court's jurisdiction was barred under Section 50 of the same Act.
The appellant relied on the proposition (supported by a Madras authority) that interim relief should not be broader in scope than the relief sought in the main suit, implying the impugned interim order was impermissibly broad.
The appellant asserted that in August 1994 only part of one room was damaged and that he had been obstructing the respondent's attempts to remove debris (leading to a contempt application by the respondent). The appellant claimed harassment and loss resulting from the respondent's conduct.

Respondent's Arguments

The respondent denied any agreement to vacate the entire tenanted premises for reconstruction, stating only that possession of one room had been surrendered in exchange for another room.
The respondent said the appellant had agreed to carry out repairs of the remaining tenanted premises but then refused to do so after demolition.
It was alleged that the appellant intentionally left debris on the roof of the tenanted premises, causing damage and water leakage (the appellant allegedly opened a water tap over the debris), which ultimately caused the roof to collapse and the respondent’s factory to close.
The respondent stated he had been subjected to harassment, was left short of funds, and required further time to carry out repairs; he applied for permission to repair and remove debris (and sought related interim relief in the suit).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
AIR 1958 Madras 287	Principle that interim relief granted should not be greater in scope than the relief sought in the main suit.	The Court considered the authority but concluded it did not assist the appellant: the interim relief in the present case was directed to restore the position at the time of institution of the suit and did not exceed the scope of relief claimed; hence the cited case did not advance the appellant's position.

Court's Reasoning and Analysis

The court analysed the scope and applicability of Section 44 of the Delhi Rent Control Act, 1958. It explained that Section 44 is engaged where a tenant seeks the landlord to bear (in whole or in part) the expense of repairs. Section 44 prescribes the procedure for giving notice to the landlord, potential deduction from rent, and the method by which the tenant may seek permission from the Rent Controller to make repairs with an approved estimate of costs. The section also prescribes limits on the landlord's liability for repair costs.

The court held that Section 44 does not apply where the tenant seeks only permission to remove debris thrown by the landlord and/or to repair damage entirely at the tenant’s own cost. Because the respondent sought to remove debris and to repair damage at his own expense, the Court concluded that the statutory procedure under Section 44 was not triggered and the application was not barred under Section 50 of the Delhi Rent Control Act.

Addressing the appellant’s contention that the respondent had acted fraudulently or without clean hands, the court observed that there was no written agreement concerning vacation of the premises or allocation in the proposed reconstruction; on the material before the Trial Court, the Trial Court had correctly not accepted the appellant's version. The opinion states that, on the record and pleadings, the tenant (respondent) had been subjected to harassment. The court noted that debris had been collected on the roof of the tenanted premises and that its removal had been obstructed, which ultimately resulted in the roof's collapse and closure of the respondent’s factory.

The court also considered the appellant’s reliance on AIR 1958 Madras 287 (the interim-relief scope principle). It found that the cited authority did not assist the appellant because, in the present case, the relief granted by the Trial Court was aimed at restoring the position prevailing at the time of the institution of the suit and was not broader than the relief claimed; accordingly the Trial Court had properly exercised its discretion.

On this reasoning the court found no error or infirmity in the impugned order and dismissed the appeal.

Holding and Implications

Holding: The court affirmed the Trial Court order and DISMISSED the appeal.

Direct consequences and implications:

The respondent is permitted to carry out repairs and remove the debris within one year from the date of the opinion.
The Trial Court file is to be returned forthwith.
The court found that Section 44 of the Delhi Rent Control Act does not apply where a tenant seeks to remove debris placed by the landlord and/or to repair damage at the tenant’s own cost; consequently the suit or application was not barred by Section 50 in that situation.
No broader precedent was announced: the court expressly found the Trial Court had exercised proper discretion and that the cited authority (AIR 1958 Madras 287) did not change the outcome. The decision operates to resolve the parties' dispute in these facts rather than to lay down a new general rule beyond the statutory interpretation applied to these facts.

Petition dismissed.

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Lekh Ram Khari v. Krishan Kumar Vohra .

Manmohan Sarin, J.— The appellant is aggrieved by an order dated 12th October, 1994 passed by Shri S.L Bhayana, Additional Districts Judge, whereby the learned Judge restrained the appellant, his wife, son, etc. from interfering with the respondent carrying out repairs in the tenanted premises bearing No. WP-552, Village Wazirpur, Delhi-52 and from removing the debris left by the Appellant. The respondent was further permitted to carry out the repair of the entire tenanted premises including the roof and the walls which had been damaged. Respondent was permitted to remove the debris and offer it to the appellant. In the event of appellant not accepting it, the respondent was free to dispose of the same.

2. The relevant facts as per the Appellant are:—

(i) The respondent had initially taken on rent three rooms on the ground floor of property No. WP-552, Village Wazirpur, Delhi-52 at a monthly rent of Rs. 1000/-. An additional room was let out @ Rs. 900/- per month, with total rent of the premises being Rs. 1900/- per month.

(ii) It is the appellant's case that in August 1992, he approached the respondent as well as one tenant of the first floor of the property with the proposal to demolish the existing building and build a basement, ground floor and first floor, wherein they would be provided accommodation. This was because the building was more than fifty years old. It is alleged that Shri Naresh Kumar Bansal as well as the respondent accepted the proposal and Shri Naresh Kumar Bansal vacated the first floor portion which was got demolished. But thereafter the respondent resiled from the agreement and understanding and refused to vacate the portion in his tenancy on the ground floor, which was also to be demolished, so that reconstruction could be done. Not only this, the respondent went on to file a suit for perpetual injunction seeking an injunction against the appellant from interfering with the possession or from dispossessing him. A Local Commissioner also visited the tenanted premises and reported that there was a hole of about 2 ft.× 2 ft. in the roof of one of the rooms in the tenancy of the respondent. In November 1992, the respondent exchanged a room in his tenancy for portion of the hall to enable the appellant to construct the basement and staircase. The tenanted premises were old and were damaged in the rains, as a result of which, the roof of the tenanted premises fell down. The debris that had been thrown on the roof on the demolition of the first floor, had therefore fallen in to the tenanted premises.

3. The respondent has refuted the allegation of any agreement having been arrived at in terms of which the respondent was to vacate the entire tenanted premises to enable the reconstruction of the entire building. It is stated that possession of one room was surrendered by the respondent in exchange of another room. The Appellant was to carry out the construction and it was for this reason that one of the rooms had been surrendered and possession of another room was taken. The appellant landlord had specifically agreed to carry out the repairs of the remaining tenanted premises, which he refused to do. The respondent's case is that after demolition of the first floor, the landlord intentionally kept the debris on the roof of the tenanted premises, which damaged the roof and ultimately resulted in the roof coming down the factory of the respondent being closed. It is stated that the appellant landlord used to open the water tap on the debris which would accumulate there and then flow into the tenanted premises.

4. The appellant opposed the application moved by the respondent for being permitted to carry out repairs. It is stated that in August 1994, only part of one room was damaged while the roof of the remaining rooms was intact. Obstruction was caused by the appellant to prevent respondent from removing the debris. This led to filing of the application for contempt as well. It is stated that the respondent has been subjected to extreme harassment and reduced to penury because of the action of the appellant resulting in closure of his factory and wasting of his goods lying there. It is stated that the respondent is short of funds and would require some further time to carry out the repair.

5. Learned Counsel for the appellant has assailed the order on the following grounds:—

(i) It is stated that the appellant has been fraudulently put into a disadvantageous position by the respondent, who made him demolish the first floor of the property after getting it vacated from the tenant Sh. Naresh Kumar Bansal. The appellant had duly constructed a basement and a staircase for utilizing one room that had been vacated by the respondent and in exchange of which respondent had obtained a portion of the hall. The respondent, therefore, was not entitled in equity for the permission sought.

(ii) The second ground urged is that trial Court erred in not appreciating that it had no jurisdiction to grant the relief for carrying out the repairs in a tenanted premises as the matter was governed squarely by Section 44 of the Delhi Rent Control Act, 1958. Jursidction of the Civil Court stood barred under Section 50 of the Delhi Rent Control Act. Section 44 of the Delhi Rent Control Act is reproduced for reference:—

“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 Subsection (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 useable except with undue inconvenience are too 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 and estimate of the cost of such repairs, and, thereupon, the Controller may, after giving the landlord and opportunity of being heard and after considering such estimate of the cost and making such enquiries 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 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. I am unable to agree with the submission of the learned Counsel for the appellant. The provisions of Section 44 of the Delhi Rent Control Act would get attracted in a situation where the tenant requires the landlord to bear the expense for repair or part thereof. The section provides the procedure for service of notice on the landlord prior to repairs as also for permission from the Rent Controller for the tenant to carry out repairs after estimate of costs is approved. The section also provides for limits on the liability of the landlord.

7. However, in a case where the tenant only seeks permission to remove the debris thrown by the landlord and/or repair the damage caused to the tenanted premises at his own costs entirely provision of Section 44 of the Delhi Rent Control Act are not applicable. Hence the suit or the application would not be barred under Section 50 of the Delhi Rent Control Act. The first submission of the learned Counsel for the appellant that the respondent had perpetrated fraud on the appellant and had not come to the Court with clean hands and was therefore not entitled to any discretionary relief does not inspire any confidence. Admittedly there was no written agreement with regard to vacation of the tenanted premises and/or the tenant being allocated any portion in the proposed reconstructed premises. The Trial Court has correctly not accepted the version of the appellant landlord. On the other hand based on the material on record and the pleadings, it is the tenant who has been subjected to harassment. Admittedly debris was collected on the roof of the tenanted premises which was not only not removed but obstruction was caused in its removal by the respondent, resulting finally in the roof coming down. The respondent's factory has been closed down and he has been deprived of the use of the tenanted premises. Counsel for the appellant has relied on AIR 1958 Madras 287 in support of his proposition that the interim relief granted should not be greater in scope than the relief sought in the main suit. In the instant case, the respondent had prayed, inter alia, for a restraint on the appellant from causing any damage to the tenanted premises and amendment application under Order VI Rule 17 CPC is pending adjudication wherein the prayer clause is sought to be further widened. The cited case does not advance the appellant's case. The relief given is to restore the position at the time of institution of the Suit. I find that in the instant case, the Trial Court has correctly exercised its discretion and the order advances the cause of substantial justice. I find no error or infirmity in the impugned order. The appeal is dismissed.

8. The respondent is permitted to carry out the repairs and remove the debris within a period of one year from today.

9. The Trial Court file be returned back forthwith.

Petition dismissed.

Lekh Ram Khari v. Krishan Kumar Vohra .

Judgment Summary: Manmohan Sarin, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Lekh Ram Khari v. Krishan Kumar Vohra .

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