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Dev Raj Bajaj Vs. R.K. Khanna - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 50 of 1984
Judge
Reported in26(1984)DLT216; 1984(7)DRJ105
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantDev Raj Bajaj
RespondentR.K. Khanna
Advocates: C.N. Chopra and; S.K. Luthra, Advs
Cases ReferredIn Smt. Bhagirthi Devi v. Prem Nath
Excerpt:
(a) delhi rent control act - section 14(1)(a) : doctrine of suspension of rent: additional room to be constructed and leased out to the tenant on enhancement of rent : room was constructed but finishing touches could not be given : possession not banded over to the tenant: is the tenant entitled to suspend the entire rent ? no.; it is admitted by the landlord shri b.d. bajaj (aw-3) that finishing touches could not be given to the room because of obstruction created by the tenant. be as it may, the room has not yet been leased out to the tenant and he cannot be asked to pay an additional sum of rs. 160/- per month. that is the finding of the learned tribunal as well and does not call for any interference. but did that entitle the tenant to suspend the..........of the dismantled condition of the house he has not been able to derive full enjoyment of the tenanted premises. the additional construction had not been made. he denied the allegation that the construction of the additional bed room and bath- on the ground floor could not be completed because of obstruction by him. (6) on 22/11/1972, the learned additional controller passed an order under section 15(1) directing the tenant to pay arrears atrs.250.00 per month w.e.f. 1/8/1971. the rent control tribunal reversed that order. in the second appeal in this court, the tenant agreed to deposit rs.250.00 per month under section 15(1) of the delhi rent control act, 1958 (herein the act) which the landlord could draw only after the disposal of the eviction application. the appeal was disposed.....
Judgment:

M.L. Jain, J.

(1) The respondent R.K. Khanna was the tenant of one Bhagwan Das in the disputed premises since 3/1/1969 vide Ex. R-3. Appellant Dev Raj later. on purchased the property and Khanna became his tenant. It is a single storey house. It appears that the tenant filed an application to the Controller for fixation of standard rent, while the landlord filed a suit for ejectment.

(2) The landlord wanted to construct the first floor. So, an agreement was arrived at between the parties on 9/2/1971. The features of the agreement that are relevant here were as follows :-

1.The tenant and the landlord will withdraw their respective applications.

2.The tenant shall forego the rights of the use of the roof.

3.The landlord agreed to construct one additional room with attached bath room including sanitary fittings and a geyser on the ground floor on the area covered by the kitchen. That room shall be leased out to the tenant.

4.The existing toilet will be converted into a kitchen. The job of shifting the present kitchen will be done first and only then the construction of the ground floor and first floor will be undertaken.

5.The rent for the ground floor shall be Rs. 250.00 per month. This rent will include water charges and all types of taxes including house tax but shall exclude electric charges. As soon as the additional room is constructed as aforesaid on the ground floor and leased out to the tenant, the tenant shall pay an additional rent of Rs. 160.00 per month, thereby the tenant shall pay a sum of Rs. 410.00 per month in respect of the entire ground floor inclusive of water charges and all types of taxes.

6.The landlord shall not use or let the first floor to any person unless the said one room is added to the ground floor.

With this agreement terminated the first round of battle. The constructions envisaged by the agreement also took place but there were some disputes raised by the tenant.

(3) On 16/8/1971, the tenant served a notice to the landlord that he has fraudulently deprived him of accommodation and facilities which were an integral part of the tenancy and thereforee he was not entitled to any rent w.e.f. 9/2/1971 until the said agreement is honoured of the premises are restored to their original condition. This notice was acknowledged by a counter notice given by the landlord on 7/10/1971 saying that upon construction of an additional room, the tenant was bound to pay rent at Rs. 410.00 per month for the entire ground floor. The additional room had been constructed in which the stores of the landlord were lying as the tenant intentionally obstructed him in giving final touches to it. It was also stated that he was in arrears of rent for the last two months inspire of repeated demands. In reply on 28/10/1971 the tenant said that the landlord was not entitled to any rent.

(4) On 15th March, 1972 the landlord filed an eviction petition on the ground that the tenant has not paid the arrears of rent w.e.f. 1/8/1971 within 2 months from the date of the service of-notice of demand on him on 7/10/1971.

(5) The respondent in his written statement stated that the notice given by the landlord is illegal. The landlord is not entitled to any rent because landlord had deprived him of the following premises : one bath room, one store room, place of parking, one bath room for the servants, one servant quarter, back varandah, one wall of the drawing room, front varandah, place for number and name plate. Besides, on account of the dismantled condition of the house he has not been able to derive full enjoyment of the tenanted premises. The Additional construction had not been made. He denied the allegation that the construction of the additional bed room and bath- on the ground floor could not be completed because of obstruction by him.

(6) On 22/11/1972, the learned Additional Controller passed an order under Section 15(1) directing the tenant to pay arrears atRs.250.00 per month w.e.f. 1/8/1971. The rent control Tribunal reversed that order. In the second appeal in this court, the tenant agreed to deposit Rs.250.00 per month under Section 15(1) of the Delhi Rent Control Act, 1958 (herein the Act) which the landlord could draw only after the disposal of the eviction application. The appeal was disposed of accordingly on 11/11/1974.

(7) The eviction application was decided by the Additional Controller on 18/7/1983. The learned Additional Controller observed that the main pleas of the tenant is that he has been deprived of the amenities and of a portion of the house and thereforee, he is entitled to suspend the entire rent. But the learned Additional Controller found that the landlord had co.istruct-ed the kitchen as well as the additional room and bath room but thereafter the tenant prevented him giving finishing touches to the same. The tenant was in possession of the entire ground floor and there was no denial by him of the existence of the additional bed room and of shifting of the kitchen, and there was no violation of the agreement by the ladled and his assertions that the tenant obstructed the completion of the finishing touches was upheld. The learned Additional Controller was of the view that since no deprivation of any tenanted premises had taken place, the tenant was not entitled to suspend the rent.

(8) As regards the arrears the learned Additional Controller said that the notice demanding the arrears of rent is dated 7/10/1971. Its reply is dated 28/10/1971. In the notice, the landlord has mentioned that the tenant was in arrears of rent for the last two months. The learned Additional Controller thereforee, directed that the respondent shall pay or deposit the entire arrears of rent at the rate of Rs. 410.00 per month w.e.f. 1/10/1971 up to the date of order within one month thereof. If payment is made accordingly, the first default shall be deemed to have been satisfied. In case of failure on the part of the tenant, an eviction order shall be deemed to have been passed against him in respect of the entire ground floor.

(9) An appeal against the order was filed. On 21/12/1983, the learned Rent Control Tribunal accepted the eviction petition. Hence, this second appeal.

(10) The learned Tribunal found that the construction was not completed so as to be habitable. Thus, the tenant was deprived of the user of the premises so as to enable the landlord to get Rs. 410.00 per month of rent. In such a case, the doctrine of suspension of rent comes into play and the rent can be reduced proportionately. The tenant was liable and willing to pay @ Rs. 250.00 per month for the portion in his possession, and thereforee, he cannot be considered to be a defaulter. Clause (a) of the proviso to Subsection (1) of Section 14 of the Act will thereforee be not attr]acted.

(11) I have heard the learned counsel and seen the record. The unchallenged facts are that in 1969 the rent of the house was Rs. 410.00 per month. It was reduced to Rs. 250.00 per month because the tenant surrendered the roof and some other portion so that the landlord can raise a second storey. The rent was to be increased again to Rs. 410.00 per month when the additional room was constructed and finished in terms of the agreement and leased out to the tenant. R.K. .Khanna(RW 6) has in his cross-examination deposed on 12/1/1982 that Ex. RW-3/1 is the plan of the ground floor portion under his tenancy but from this statement is cannot be inferred that he has occupied the additional room. It is admitted by the landlord Shri B.D. Bajaj (AW-3) that finishing touches could not be given to the room because of obstruction created by the tenant. Be as it may, the room has not yet been leased out to the tenant and he cannot be asked to pay an additional sum of Rs. 160.00 per month. That is the finding of the learned Tribunal as well and does not call for any interference. But did not entitle the tenant to suspend the payment of Rs. 250.00 per month as well If he is so entitled then he cannot be called a defaulter in view of Mis. Ved Rattan & Bros. v. Janak Raj 1979 (1) R.C.R. 106. It was observed in this case that when a tenant is deprived of a part of the premises, he is entitled to suspend the entire rent. In Hanuman the Gounoan v.T. V'.Dorsiswamy Pillai and others Air 1928 Mad 380 it was held that if the Lesser grants lease of property but fails to give the lessee possession of the whole lease no logic it is open to the lessee to repudiate the entire contract. But if he does not and remains in possession of a portion of the property, he is under certain obligations to his landlord. Such obligation is recognised as the doctrine of appointment of the old lease, or an implied new contract of lease or also a liability to pay a reasonable sum for use and occupation. In B. Ahmed Maracair v. Muthuvallippa Chetliar, : AIR1961Mad28 , it was held that a tenant may on a partial eviction repudiate the whole lease ; but if he does not and remains in possession of a portion, he is estopped from pleading non-liability for the rent of the portion in his occupation.

(12) In Surendara Nath Blora v. Stephen Court Ltd., : [1966]3SCR458 it was held that it will depend upJ.l the circumstances of each case whether a tenant would be entitled to suspend payment of the rent or whether he should be held liable to pay proportionate part of the rent. It is unfair if a tenant is Toot given possession of a substantial portion of the property, he should be asked-to pay any compensation for the use of the property. But it does not seem equitable that when a tenant enjoy a substantial portion of the property of the land leased to him without much inconvenience, he should not pay any compensation for the use of the property and enjoy a windfall as it were. In N.K. Baslas v. Krishan La!. 1973 R.L.R. 14 it was observed that the whole of the rent payable by the tenant to the landlord can be suspended if the tenant is deprived of the whole of the premises. It may also be that even where the tenant is deprived only of the part of the premises the rest of the premises cannot be enjoyed at all by the tenant. Then also the tenant may be entitled to suspend the whole of the rent. But when the tenant is deprived only of the part of the premises and the rest of the premises can be enjoyed by the tenant without too much difficulty or inconvenience, the tenant would be entitled only to reduce the rent proportionately so that the landlord loses that part of the rent which could be ascribed to that part of the premises of which he has deprived the tenant. In Smt. Bhagirthi Devi v. Prem Nath d- others 1970 (2) Del 744 it was observed that the near consensus of judicial opinion in the country seems to be in favor of the applicability of the doctrine of suspension of rent to a situation where the landlord either forcibly or tortiously obtains possession of a portion of the demised premises. In Nirmalandy Basu and others v. Smt. Nilima Chatierjee, : AIR1975Cal418 , it was observed that a tenant is entitled to Suspension of rent in a case where the landlord dispossesses his tenant from any portion of the leased property by exercising physical force, coercion, threat or any other trick of means or any fraudulent or malaise process agains', the wish or will or natural inclination of the latter or where the landlord connives with or assists others directly or indirectly to dispossess the tenant or does something which is responsible for the dispossession of the tenant from any portion of the tenancy or by his acts or omission leads the tenant to part with possession of any portion of the property in lease against his will or consent or depriving him of the benefit or use of such property, the tenant so dispossessed shall be entitled to suspension of the entire rent if he so likes so long as he does not get back the portion from which he is dispossessed.

(13) Mr. Chopra urged that there being no tortious or forcible deprivation of the room by the landlord, there is no case made out for total suspension of rent, further in such a case the only course open to the tenant is to vacate the premises. It appears to me that the tenant has not been able to make out a case to suspend payment of the entire rent. He was bound to make payment at Rs. 250.00 per month. No doubt the notice of 7/10/1971 does not make a demand in express terms but it was implied in it. The tenant should have offered or paid rent at Rs. 250.00 per month within two months and having not done so, he had become a defaulter. But in virtue of this court's order of 11/11/1974, he has made payments and his first default has got to be condoned. I, thereforee, accept this appeal, set aside the impugned order and restore the order of the controller as modified by this judgment. There shall be no costs. However, I went to make it clear that if the tenant occupies the additional accommodation in the ground .floor, he shall have to pay rent at Rs. 410.00 per month.


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