Chameli v. Kundan Lal

2. The litigation between the parties is that the petitioner had filed an eviction petition under section 14 (1) (a) of the Act against the respondent and the respondent had filed a petition under section 44 of the Act against the petitioner. In the petition under section 44 of the Act, the respondent had sought for directions to the petitioner to raise the ground level of the tenanted premises to the level of the road or to allow the tenant to raise the ground level of the tenanted premises and to remove the partition as shown in the site plan. It was stated in that petition by the respondent that at the CM(M)No.865/2015 Page 1 of[4] 2013:DHC:7415 time of letting out the tenanted premises, the ground level of the tenanted premises was equal to the road and that in the period of 30 years, the road had been constructed from time to time due to which the ground level of the tenanted premises had reached down by about three and a half feet from the road level, because of which, in rainy season, the rain water gathered in the premises, as a consequence of which, the respondent faced hardship and inconvenience and suffered losses un his business. However, it was contended in the petition by the petitioner that through the petition, the respondent was in fact seeking to change the original shape, structure and size ofthe tenanted premises.

3. The said petition was however dismissed on the ground that notice under Section 44 (2) of the Act was not issued to the petitioner and furthermore, the testimonies of the witnesses revealed that the tenanted property was in the same condition as it was let out and was being used by the respondent in the same manner as it was being used when it was let out. By this order, the learned trial court had dismissed an application of the respondent seeking peimission to get certain photographs of the tenanted premises through a photographer and a direction to the petitioner not to obstruct them in taking photographs.

4. The respondent filed an appeal against the same stating that he had not been given the opportunity to pursue his application. The learned Appellate Court observed that the respondent had stated that he is an illiterate person and he did not know whether he had served any legal notice on the petitioner, the same was not sufficient for dismissal of the petition as the said legal notice is a part of judicial record and the AD/card in relation thereto was on the record. Even otherwise the service of the notice was not CM(M) No.865/2013.Page 2 of[4] denied by the petitioner in her written statement, thus deemed to have been accepted.

5. Further on the contention that the photographs ought to have been allowed to ascertain whether there was a room constructed on the roof of tenanted premises which were situated at the basement as alleged by the petitioner or whether there was a gap between the roof of the tenanted premises and the roof of the remaining building as contended by the respondent, it was opined by the learned Appellate Court that on consideration of the record available, especially the testimony of the son of the petitioner which categorically admits that in rainy season, the rain water fills up the shop, it is considered essential in the interest of justice that the matter be remanded back to trial and a Local Commissioner be appointed. Accordingly, the appeal was allowed vide order dated 11^*^ July 2013.

6. Assailing the impugned order the petitioner has filed the present petition stating mainly that the said appeal did not disclose any 'question of law' so was liable to be dismissed and appointment of a Local Commissioner at this stage was not justified.

7. It appears from the material placed on record and from reading of the petition that the petitioner has challenged the remand order passed by the District and Sessions Judge exercising his discretion in terms of Order 41 Rule 23 CPC. The same was passed in the interest of justice and a Local Commissioner was appointed to find out the true position at the site in the presence of the parties. It is specifically mentioned in the impugned order that the learned Additional Rent Controller will determine the matter after receiving the report of the Local Commissioner whether the repairs sought by the petitioner are within the ambit of permissible repairs in tenns of Rule 6.4.[1] of the Delhi Building Bye Laws, 1983 or not, before permitting CM(M) No.865/2013 Page 3 of[4] additional evidence if required to be led by other side. I find that the said order is reasonable in order to getfactual position ofthe matter and the same is notrequired to be interfered with in the petition filed under Article 227 of the Constitution of India. The petition is accordingly dismissed. (MANMOHAN SIN^v^ JUDGE AUGUST 30, 2013