SMT. VIDYA WATI Vs. SHRI BHOOP SINGH

JUDGEMENT

(1.) This is a landlord's appeal against the order of the Rent Control Tribunal dismissing his eviction application. The appellant brought an application for eviction on three grounds :

(2.) Mr. Anil Kumar, counsel for the appellant urges the same 3 grounds before me. With regard to the sub-letting the finding is based on the oral evidence which was produced by both the parties. The courts below have also relied upon Ex. RW4/1 and RW 4/2 to show that coal had been purchased by Tek Chand for this shop right since 1951 on the basis of evidence a finding of fact has been given that sub-letting was made prior to 9th June, 1952 in shop No. 1878. That finding of the fact cannot be reopened in second appeal and this plea therefore fails. The other finding that there was no misuser also cannot be reopened; the coal business has been carried on for such a long time and the courts therefore were within their jurisdiction to hold that no misuser had been proved or there was not any specific purpose for which the shop had been let out. One of the reasons for not holding was that the husband of landlady is also said to be residing on the first floor and he must have noticed if change of user was made and must have at least agreed in it. The courts below therefore were within their rights in holding that even if there had been a change of misuser the same must have been with the consent of the landlord. This plea also therefore fails.

(3.) The next plea by the counsel for the appellant is about the substantial damage. As mentioned above, the Rent Controller had allowed the damage of Rs. 1,500/-. The case of the appellant was that the floors of shops 1876 and 1877 had been lowered to 1'-7-1/2" as against the level of shop 1878 and that the same had been done by the tenant by digging the foundation and thus the damage has been caused to the shop. He has assessed the damage at Rs. 5,000/-. Ex. AW 4/1 is the report of Shri Phool Chand Goel the architect who has in his report mentioned that the existing floors of the said basement 1876 and 1877 have been lowered 1.7" below the adjoining ground floor level and simultaneously foundation have also been cut to that extent. He assessed the damage at Rs. 5000/-. The tenants had also produced A.S. Sondhi, the architect. He has also in his report accepted that the floors of godown 1876 and 1877 are 1'-10-1/2" lower than the ground level. Of course he has stated that there was no crack or damage in the building though he accepts that the stone slabs of floor are the new ones and because of repairs Rs. 600/- approximately are to be spent. Mr. Mittal's contention is that right from the beginning, level of 1876 and 1877 was lower than that of 1878. A reference to the evidence of AW5 however negatives this contention. He has clearly stated that the floor levels of 1876 and 1877 have been lowered by the respondent and also by digging the foundation. Mr. Mittal referred me to cross examination of appellant and suggested that he had admitted that the shops level was 1-1/2" lower than the streets at the inception of tenancy. I, however, cannot read his evidence that way. As a matter of fact, that was not even the tenant's case because in further cross-examination a suggestion was squarely put to the appellant that the floor level had been lowered with the specific consent of the appellant and the same had been adjusted in the rent. Evidently if the case of the respondents was that the floor level was lower right from the start of tenancy the suggestion put forth that the same was done with the consent of the landlord and the amount adjusted in rent would be plainly inconsistent. I also find that Ext. AW5/1, notice, sent on October 1, 1963 to the tenant had also alleged that the floor level of 1876 and 1877 has been made about 2 feet below the level of the street and that the tenant had not obtained any sanction for doing so. The case of the appellant therefore that damage had been done to the floor has been consistent right through. The first appellate court though did accept that the floors of the shops had been lowered yet strangely opined that it does not seem that the damage has been done to the premises by the respondent. I should have thought that if once a finding is given by the lower appellate court that floors had been lowered by the respondent the further finding about the damage would automatically be the inevitable consequence. In State of Mysore & Anr. v. D. Achiah Chetty, 1969 3 SCR 55 the lowering of floors was accepted as causing substantial damage to the premises. The only question that would be the extent of damages. The finding of the lower appellate court therefore to the extent that no substantial damage has been proved is patently against the record is manifestly unsustainable in law and is set aside. As far as the damage is concerned though the learned counsel for the appellant wanted that the damage should be assessed at Rs. 5000/-, I am afraid the assessment of damage is more in the nature of inference from the factual data by the court below. I would, therefore, be content to accept the figure which the Rent Controller had accepted, namely of Rs. 1,500/-. I would, therefore, allow the appeal on only ground (i) and set aside the finding of the Tribunal and restore that of the Rent Controller. I would further direct as per Section 14(1) of the Delhi Rent Control Act that if the respondent pays or deposits in Court a sum of Rs. 1,500/- by way of compensation within a period of one month from today to the landlord no eviction of the tenant will take place. The appeal is allowed only to the extent. As in the circumstances the parties have succeeded in part, there would be no order as to costs.