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DELHI HIGH COURT
Sanjay Kishan Kaul & Sudershan Kumar Misra, JJ.
Shri Pritam Prakash Dawar & Sons HUF — Appellants
versus
Shri Krishan Kumar Bhasin & Ors. — Respondents
FAO (OS) No. 126 of 2009
Decided on : 13-04-2009.
For the Appellants :Mr. Sudhir Nandrajog, Sr. Advocate with Mr. Vikas Sharma,
For the Respondents: Nemo,
IMPORTANT POINT
Where the tenant of building has effected repairs to keep the building useable the said act cannot be termed as act of making improvement which requires permission of rent controller.
Headnote:Civil Procedure Code, 1908, Order 39 Rule 1, 2 and 4 - Permanent and mandatory injunction suit – Filing of – Plea that tenant has made damage and improvement of tenancy premises – Found to have made only permitted repairs – Temporary injunction refused - Pavements have been raised by the neighbours of the tenanted building - Resulting in water logging in front of the shop - Premises undisputedly old - Appellant had agreed to level the pavement outside – No infirmity found in the orders of Single Judge.
Facts of the case :
The factual matrix for determination of the appeal is within a narrow compass. The appellant claims to have let out the said premises to the respondents by a written Rent Deed dated 01.11.1967 at a monthly rent of Rs.60.00 for commercial purposes. The Rent Deed provided for the respondents not to injure any of the walls and portions of the building and for the appellant to carry out the necessary whitewashing and repairs every year. The appellant alleges that they came to know that the respondents had demolished the shop in or around 12.07.2008 without the knowledge and consent of the appellant and had also removed the front door of the shop. This gave rise to a complaint to the local police station and it was agreed that no changes would be made by the respondents without prior permission of the appellant
Finding of the court :
The nature of repairs permitted by the learned single Judge, as per the impugned order, are minor in nature to the extent of whitewashing and repairs of the walls where the plaster had fallen off. Similarly permitting fixing of water outlet pipe to facilitate installation of air-conditioner can hardly be called any repairs. No doubt flooring work inside the shop requires some digging. However, the premises is undisputedly old and the appellant had agreed to level the pavement outside. This is on the basis of the allegation of the respondents that the pavements have been raised by the neighbours of the respondents resulting in water logging in front of the shop. This is also alleged to have caused sinking of the floor of the said premises. We, thus find no infirmity with the directions passed by the learned single Judge.
Sanjay Kishan Kaul, J. (Oral) —
CM No.5059/2009 (Exemption) Allowed subject to just exceptions. FAO (OS) No.126/2009 The appellant is the owner/landlord of the suit property bearing municipal No. J- 11/24-B, Lajpat Nagar, New Delhi (for short ‘said premises’) of which the respondents are the tenants. The appellant filed a suit for permanent and mandatory injunction restraining the respondents from carrying out any alteration or modification or demolition in the said premises and not to sell, alienate, part with possession or transfer the said premises to any third party. The appellant also filed an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) on which interim orders were granted. The respondents moved an application for vacation of the interim order under Order 39 Rule 4 of the said Code. These two applications have been disposed of by the impugned order dated 06.02.2009 with which the appellant is aggrieved.
2. The factual matrix for determination of the appeal is within a narrow compass. The appellant claims to have let out the said premises to the respondents by a written Rent Deed dated 01.11.1967 at a monthly rent of Rs.60.00 for commercial purposes. The Rent Deed provided for the respondents not to injure any of the walls and portions of the building and for the appellant to carry out the necessary whitewashing and repairs every year. The appellant alleges that they came to know that the respondents had demolished the shop in or around 12.07.2008 without the knowledge and consent of the appellant and had also removed the front door of the shop. This gave rise to a complaint to the local police station and it was agreed that no changes would be made by the respondents without prior permission of the appellant
3. It is the case of the appellant that the respondents themselves damaged the wall for making some electrical installations and the floor was dug up even though it did not require any repair. The plea of the appellant is that no repairs could be carried out without prior notice to the appellant/landlord even if the respondents/tenants were ready and willing to spend the money from their pocket.
4. The respondents, on the other hand, pleaded that the building being an old one needed repairs which the appellant failed to carry out with the result that the floor of the said premises started sinking resulting in water logging in front of the shop. The respondents claimed that they were only carrying out the necessary repairs on the walls where the plaster had fallen off land for fixing the water outlet pipe for the air-conditioner.
5. The basic plea urged by the appellant before the learned single Judge, as also before us, is that in view of the provisions of Section 44(3) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the Rent Act), the requirement is for a prior notice to the appellant as landlord to carry out necessary repairs and only on failure of the appellant landlord to do so would the •respondents as tenants be entitled, to themselves carry out the repairs at the cost of the landlord. This plea has been considered in para 10 of the impugned order and the learned single Judge has come to the conclusion that since the respondents have agreed to bear the cost, the provision would have no application. The operative directions issued by the learned single Judge are set out in para 15 of the impugned order where the following works have been permitted to be carried out:
“(a) white-washing after repairing the walls where the plaster has fallen off;
(b) fixing the water outlet pipes for air-conditioner;
(c) flooring work inside of the shop;
(d) levelling of pavement outside the shop as shown in the photographs filed by the defendants at their own cost within the period of seven days from the date of this order.” .
6. Insofar as sub-para (d) aforesaid is concerned, a reading of para 11 of the impugned order shows that the
