IN THE HIGH COURT OF DELHI AT NEW DELHI

 

SUBJECT: PERMISSION TO TENANT

TO CARRY OUT REPAIRS

 

CRP No. 943 of 2001

 

Judgement reserved on:   October 27, 2004

 

Judgement delivered on:  November  25, 2004

 

 

Yogender Pal Bhatia

son of Late Shri Hans Raj

Prop. of M/s. Arya Cane Industry,

Resident of B-2/48 B, Lawrence Road,

Delhi.                                                                       ...Petitioner

                                                                                   Through Mr. Sanjay Goel, Adv.

 

                                                               Versus

 

1.                  Shri Rajesh @ Sonu

                     son of Shri Uma Nand

 

2.                  Shri Ajay Saini

                     son of Shri Uma Nand

 

3.                  Shri Vinod Saini

                     son of Shri Uma Nand

 

                     All residents of

                     141, Pul Mithai,

                     Telewara, Delhi-6.                                  ...Respondents

 

Through Ms.Kamlesh Sabharwal, Adv.

 

 

MADAN B. LOKUR , J.

 

 

1.                  The Petitioner had filed a suit, being Suit No.78/2000 (new number), for a mandatory injunction directing the Respondents to carry out necessary repairs in a portion of the tenanted premises.  It was also prayed that a decree of damages for Rs.2 lakhs, with interest be passed against the Respondents.

 

2.                  The Petitioner filed an interim application for directions to the Respondents to carry out necessary repairs during the pendency of the suit.  By an order dated 30th October, 1998 the application was dismissed by the learned Additional District Judge.

 

3.                  Feeling aggrieved, the Petitioner filed FAO No.29/1999 in this Court and by an order dated 27th July, 2000, it was held that the Trial Court had not committed any illegality or impropriety in declining grant of interim relief to the Petitioner.  It was further held that if repairs were carried out, particularly plugging a hole in the roof, during the pendency of the suit, the grant of interim relief would amount to granting the entire relief of a mandatory injunction prayed for by the Petitioner.

 

4.                  Against the order of the learned Single Judge, the Petitioner preferred an SLP in the Supreme Court.  This was withdrawn on 4th December, 2000 when learned counsel for the Petitioner stated that he would file an application before the Trial Court seeking permission to repair the premises in his occupation.

 

5.                  Pursuant to liberty granted by the Supreme Court, the Petitioner moved an application on 13th December, 2000.  In this application, the Petitioner prayed for permission to carry out necessary repairs at his own expense and for a direction to the Respondents not to obstruct him in carrying out the repair work.  It was also prayed that the Petitioner may be permitted to claim the expenses which would be incurred in the proposed repair work or for a direction to the Respondents to make payments on the basis of the contractor's bill for material and labour.

 

6.                  This application was disposed of by the learned Additional District Judge by an order dated 16th April, 2001, which is impugned in the present petition.

 

7.                  The learned Trial Judge noted that the Respondents had objected to the grant of relief prayed for in the application on four grounds.  Firstly, it was contended that an earlier application for more or less the same relief was rejected.  Secondly, it was contended that the Petitioner has a more effective remedy under the provisions of the Delhi Rent Control Act, 1958 (the Act).  It was then contended that the application was frivolous with an intention to delay the proceedings in the suit and finally it was submitted that if the application is allowed, it would amount to a partial decretal of the suit filed by the Petitioner.

 

8.                  The learned Trial Judge considered all these objections and concluded that the prayer in the suit was one for a mandatory injunction to carry out repairs in the suit premises.  The learned Judge was of the view that this was a matter squarely covered by the provisions of Section 44 of the Act.  It was also held that in view of Section 50 of the Act, the jurisdiction of a civil court was barred in respect of such matters.  It was then held that the suit to this extent was not maintainable. Consequently, the relief of mandatory injunction was rejected.  It was held that since the main relief could not be granted, the interim application was also not maintainable.

 

9.                  Learned counsel for the Petitioner submitted that damage to the suit property was the result of unauthorized construction made by the Respondents on the upper floors.  Reference in this context was made to an order dated 31st July 2003 passed by a Division Bench of this Court in LPA No. 326/2001 (Yogender Pal vs. MCD and others) which related to the same property.  In that case an allegation was made that 100% reconstruction was carried out on the first and second floor of the suit property by the Respondents and the Division Bench had directed the MCD to take appropriate action in respect of the alleged unauthorized construction, in accordance with law.  According to learned counsel, the unauthorized construction was a deliberate act on the part of the Respondents to damage the suit property with a view to force the Petitioner to vacate the suit premises. It was submitted that for this reason, the Respondents were neglecting even to repair  the suit premises.  It was pointed out that due to the unauthorized activity of the Respondents, expenses for repair had gone up considerably and in terms of the provisions of the Act, only a part of the annual rent could be adjusted towards these expenses.  It was submitted that the rent of the suit premises was Rs.800/- per month and the maximum adjustment that could be made was six months rent in any year.  This would come to less than Rs.5,000/- per year while the cost of repair was estimated to be almost a lakh of rupees.  In other words, it was submitted that there was no hope of the Petitioner recovering the full amount towards repairs from the landlord within a reasonable period of time and the only option for the Petitioner would be to vacate the suit premises.  It was further submitted that the case is not barred due to the provisions of Section 44 read with Section 50 of the Act.

 

10.                Of course, learned counsel for the Respondents contended to the contrary and submitted that the issue raised was fully covered by the provisions of the Act and no further orders are required to be passed in the matter.

 

11.                The relevant provisions of law which would be applicable in so far as this case is concerned are Sections 44 and 50 of the Act.  These provisions read as follows:-

 

"44. 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 sub-section (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 usable except with undue inconvenience are to 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 an estimate of the cost of such repairs, and, thereupon, the Controller may, after giving the landlord an opportunity of being heard and after considering such estimate of the cost and making such inquiries 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.

 

50.  Jurisdiction of civil courts barred in respect of certain matters. - (1) Save as otherwise expressly provided in this Act, no civil court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant therefrom or to any other matter which the Controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any civil court or other authority.

 

(2) If, immediately before the commencement of this Act, there is any suit or proceedings pending in any civil court for the eviction of any tenant from any premises to which this Act applies and the construction of which has been completed after the 1st day of June, 1951, but before the 9th day of June, 1955, such suit or proceedings shall, on such commencement, abate.

 

(3)  If, in pursuance of any decree or order made by a court, any tenant has been evicted after the 16th day of August, 1958, from any premises to which this Act applies and the construction of which has been completed after the 1st day of June, 1951, but before the 9th day of June, 1955, then, notwithstanding anything contained in any other law, the Controller may, on an application made to him in this behalf by such evicted tenant within six months from the date of eviction, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit.

 

(4)  Nothing in sub-section (1) shall be construed as preventing a civil court from entertaining any suit or proceeding for the decision of any question of title to any premises to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such premises."

 

12.                A perusal of Section 44 of the Act makes it clear that there is an obligation on every landlord to keep the tenanted premises in good and tenantable repair.  However, if he neglects to do so, a tenant may carry out the repairs himself and deduct a specified portion of the rent for the expenses incurred or otherwise recover the expenses from the landlord. [Section 44(2)].  If the repairs are of such a nature that it is not possible for the tenant to inhabit or use the premises without undue inconvenience, he is entitled to approach the Rent Controller for permission to make the repairs.  Based on the estimated cost of repairs and the order passed by the Rent Controller in this regard, a tenant may make the repairs and deduct a specified portion of the annual rent towards expenses incurred or otherwise recover the expenses from the landlord.  [Section 44(3)].  However, if the cost of repairs is higher than the expenditure permitted by the Rent Controller, the tenant may, if he agrees to bear the excess cost, make such repairs with the permission of the Rent Controller.

 

13.                Quite clearly, the provisions of Section 44 of the Act are applicable only when the landlord neglects to carry out repairs.  However, in the present case, the contention of the Petitioner is that the Respondents are deliberately causing damage to the property with an ulterior motive. This, it is submitted, is not the same as neglecting to repair the tenanted premises and would, therefore, fall outside the purview of Sections 44 and 50 of the Act.    

 

14.                The word neglect has been explained in Laxmikant Revchand Bhojwani and Another vs. Pratapsing Mohansingh Pardeshi, (1995) 6 SCC 576  as  "to  fail to give due care, attention, or time to.  To fail through thoughtlessness or carelessness.  To ignore or disregard."  Neglect along with its grammatical variation negligence has been explained in Consumer Unity & Trust Society vs. Chairman & Managing Director, Bank of Baroda, (1995) 2 SCC 150 in the following words:-

 

"Negligence is absence of reasonable or prudent care which a reasonable person is expected to observe in a given set of circumstances."

 

 

15.                Similarly, in State of Maharashtra vs. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659, it has been stated that negligence is the omission to do something which a reasonable man is expected to do or a prudent man is expected to do.

 

16.                Negligence as a tort has been considered in Poonam Verma vs. Ashwin Patel, (1996) 4 SCC 332 to involve the following constituents:-

(a)                 A legal duty to exercise due care.

(b)                Breach of duty.

(c)                 Consequential damages.

 

17.                In M.S. Grewal vs. Deep Chand Sood, (2001) 8 SCC 151, negligence in common parlance has been said to mean and imply failure to exercise due care expected of a reasonable prudent person.  

"It  is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of the safety of others.  In most instances, it is caused by needlessness or inadvertence, by which the negligent party is unaware of the results which may follow from his act."

 

                     In other words, negligence is want of attention and doing of something which a prudent and reasonable man would not do.

 

18.                Consequently, there are two scenarios; on the one hand there is neglect or negligence on the part of the landlord to look after the tenanted premises, and on the other, there is a deliberate act of causing damage to the tenanted premises or being so totally neglectful in looking after the tenanted premises as to virtually become a deliberate act of damaging them.

 

19.                The allegation of the Petitioner falls in the second category because it is his case that in spite of knowing fully well that the tenanted premises require repair, not only are the Respondents totally neglecting to do anything about it, but are  deliberately damaging the property so as to ensure that the Petitioner has no option but to vacate the tenanted premises, which actually suits the interest of the Respondents.  To lend weight to this submission, learned counsel for the Petitioner has pointed out that the Respondents have carried out unauthorized construction on the upper floors of the tenanted premises thereby compounding the problem.  It is to show that the Respondents are carrying out unauthorized construction that learned counsel for the Petitioner has referred to the order passed by the Division Bench in LPA No.326/2001.

 

20.                The philosophy behind rent control legislation is to avoid exploitation of a tenant by an unscrupulous landlord. [see Joginder Pal vs. Naval Kishore Behal, (2002) 5 SCC 397] It is, therefore, necessary to give a meaningful and pragmatic interpretation to the rights of tenants and obligations of landlords under the rent laws. Looked at from this point of view, what are the options before the Petitioner in this case, assuming he is right in saying that the repairs will cost about a lakh of rupees? The Petitioner has the option of carrying out repairs at his own expense and adjusting the expenditure from rent payable over the next twenty years or vacating the tenanted premises. Neither of these options is realistic, if one accepts the restrictive argument that the Petitioner has a remedy only under the Act. On the other hand, if one accepts that a tenant has a right to protect his tenancy, then it is necessary to permit him to do so by enabling him to take such reasonable steps as may be permissible in law.

 

21.                Consequently, if it appears (and it does so in this case) that the Respondents are not only neglecting to look after the tenanted premises, but are deliberately causing damage to the tenanted premises, then if the Petitioner wants to protect his tenancy rights, he can only resort to a civil remedy. To this extent, therefore, the provisions of the Act cannot come in his way. Any other interpretation would mean that an unscrupulous landlord could deliberately damage the tenanted premises, refuse to carry out repairs and thereby compel his tenant to vacate the tenanted premises, since the tenant would be without an effective or meaningful remedy. Surely, this is not the only way to understand the law.

 

22.                The result is that for the reasons given above, the impugned order must be set aside and the Petitioner should be granted permission to carry out repairs in the tenanted premises at his own expense. The Petitioner will, of course, have to prove his case before he can recover the incurred expenses from the Respondents. The impugned order is set aside and application filed by the Petitioner before the learned Trial Judge is, therefore, allowed. No costs.

 

23.                Needless to say, any observations herein made are only for the purpose of deciding this petition and they are not intended to bind the parties during trial.

 

 

 

November 25, 2004                                                    ( Madan B. Lokur )

                                                                                         JUDGE