Delhi High Court
Govindji Khera vs Padma Bhatia on 30 August, 1971
Equivalent citations: AIR1972DELHI239, AIR 1972 DELHI 239
JUDGMENT
1. The eviction of the appellant-tenant was sought by the respondent-landlord initially on two grounds, namely, those embodied in provisos (b), (h) to Section 14(1) of the Delhi Rent Control Act, 1958. The finding of fact by both the Controller and the Rent Control Tribunal was that the father of the tenant was residing with him as a member of the family of the tenant from the inception of the tenancy. In 1961, the tenant was transferred to Jabalpur and left the premises at Delhi in charge of his father and went to Jabalpur where he occupied a residence allotted to him by the Government.
2. The Controller negatived both the grounds urged by the landlord for the eviction of the tenant being a member of the tenancy family it could not be said that the tenant had either sublet or parted with the possession of the premises in his favor within the meaning of proviso (b) to Section 14(1). He also held that the acquisition of a residence by the tenant outside the Union territory of Delhi was not sufficient to attract proviso (h) to Section 14(1). The Controller dismissed the application of the landlord for the eviction,
3. The Rent Control Tribunal in the appeal field by the landlord upheld the decision of the Controller that the landlord was not entitled to evict the tenant under proviso (b) to Section 14(1) but disagreed with the Controller and held that the landlord was entitled to evict the tenant under proviso (h) to Section 14(1) even if a residence acquired by the tenant was at Jabalpur outside Delhi. He therefore, passed an order of eviction in favor of the landlord.
4. In this Second appeal the finding of fact by both the Controller and the Rent Control Tribunal that the father of the tenant was living with the tenant from the inception of the tenancy was not challenged before mortgage the sole question for decision, therefore, is whether the departure of the tenant from Delhi to Jabalpur where he occupied another residence entitled the landlord to evict the tenant under any of the proviso to Section 14(1) even if the father of the tenant continues to be in possession of the premises at Delhi.
5. Three possible provisos to Section 14(1) may be considered to sustain the claim of the landlord in this respect.
6. Proviso (b) to Section 14(1) is attracted when the tenant sublets, assigns or otherwise parts with the possession of the premises without obtaining the consent in writing of the landlord. The subletting, assignment or parting with possession by the tenant implies that the tenant no longer continues to be in possession of the premises. The possession of the premises would be with a person who comes into possession in his own right on the strength of the subletting, assignment or parting with possession by the tenant. These concepts do not apply to the father of the tenant living in the premises as a member of the family an dependent on the tenant. A member of the family is in possession on behalf of the tenant as a part of his family. No legal transaction of subletting, assignment or parting with possession has taken place between him and the tenant. The concept of family was considered by me in B.Dev v. Dr.Amar Chand Narula, 1971 Ren Cr 363 (Delhi). A father being a very near relation of the tenant should be considered to be a member of his family provided that he was residing with the tenant. In this case, the father was not only residing with the tenant from the inception of the tenancy but was also dependent on him. The father in this case was, therefore, a member of the family and he was in possession of the premises on behalf of the tenant as a member of his family. Proviso (b) to Section 14(1) is not, therefore, attracted to this case.
7. For the application of proviso (d) to Section 14(1) it is necessary for the landlord to prove that the premises let for use as a residence were let for use as residence and neither the tenant nor any member of his family has been residing therein for a period of six months prior to the application for eviction. We have already seen above that the father of the tenant was a member of his family and he has been continuously residing in the premises from before and after the departure of the tenant from Delhi for Jabalpur. Prima facie it may seem strange that the tenant has gone to Jabalpur now for ten years and yet he is occupying the premises in his possession through his father who is a member of his family. But proviso (d) does not contemplate that on the simple departure of the tenant from the premises the landlord should be entitled to evict the tenant. For, every person has ordinarily a family to maintain in a house. Proviso (d) therefore, protects the possession of the members of the family of the tenant over the premises even after the departure of the tenant. It is apparently the intention of the Legislature in proviso (d) that the family of the tenant should receive the same protection from eviction as the tenant himself. No distinction between the two has been made as far as proviso (d) is concerned. It is only if the landlord had succeeded in the present case in showing that the father of the tenant was not a member of the tenant's family that he could have succeeded in evicting the tenant under this proviso. Apparently, the landlord was aware that the father of the tenant was a member of the tenant's family. He did not, therefore, even plead in application for the eviction of the tenant that proviso (d) was attracted to this case.
8. In view of the above, the real question for decision in this appeal is whether the respondent landlord was entitled to evict the appellant-tenant under proviso (h) to Section 14(1), namely because the tenant was transferred from Delhi to Jabalpur and has gone to live at Jabalpur in a residence acquired by him or allotted to him there. It needs to be stressed that the essence of proviso (h) is the acquisition by the tenant of a residence other than premises in dispute. Everything, therefore depends on the meaning to be attached to the word "residence." Firstly, it must mean that the new acquisition was either capable of being used as a residence or was actually used as a residence by the tenant. Secondly, the new residence must be such that by its acquisition the protection afforded to the tenant against eviction by the Act is forfeited. Only such residence would forfeit the protection as would make the occupation of the premises by the tenant unnecessary for the purpose of the Act. In Budh Ram v Banwari Lal, S.A.O. No.33 of 1967 decided on 6-4-1971 (Delhi), V.D.Misra, J. expressed the view that the acquisition of a residence outside Delhi would not be governed by proviso (h). It is true that in the majority of cases the new residence would have to be in Delhi to attract proviso (h). For, ordinarily it is only another residence in Delhi which would make it unnecessary for the Act to protect the possession of the tenant over the premises in dispute. I would respectfully point out however, that in exceptional cases even a residence outside Delhi would be covered by proviso (h). For instance, if the premises occupied by the tenant are just inside the boundary of Delhi and the new residence acquired by him is just outside the boundary of Delhi then the new residence would fully serve the need of the tenant to occupy the premises. It would perhaps be, therefore, more correct to say that proviso (h) would be attracted by the acquisition of such residence by the tenant as would serve the same deed as is presently served by the occupation of the premises by the tenant irrespective of the question whether the new residence is inside Delhi or not.
9. In Kishan Chand Bhargava v. Hari Hari Nath Rastogi, Civil Revn. No.303-D of 1958 decided on 31-101961 (Punj) by Dulat, J., and in K.V.singh v. Smt.Ramkali, S.A.O. No.67 of 1988 decided on 10-3-1969 (Delhi) by me, the acquisition of a residence even outside Delhi was held to attract proviso (h) to Section 14(1) in the particular facts of those cases. A distinguished from the facts of the present case the tenant in those cases had left Delhi for good to occupy the new residence outside Delhi without leaving behind him any member of his family to continue to occupy the premises in dispute. Ordinarily, therefore, those cases should have fallen under proviso (d) to Section 14(1). But the landlord may have chosen to bring the application for eviction in those cases without waiting for six months after the departure of the tenant from Delhi. Therefore, the application of proviso (h) instead of proviso (d) had to be considered in those cases. In a case in which the tenant does not leave behind him any member of his family to continue to occupy the premises, it may be said that the whole of the need of the tenant to occupy the premises is satisfied by the occupation of the new residence by him even though such new residence may be outside Delhi. This is why the occupation of residence in Dalmia Nagar and in Jaipur by the tenants in the two cases decided by Dult, J., and by me was held sufficient to attract proviso (h). It is only if the tenant or a member of his family continues to occupy the premises in Delhi even after the acquisition of another residence by him that the tenant can ask the court to consider whether the new residence acquired by him is such as to meet the same need which is met by the occupation of the premises by him. If, for instance, a tenant acquires a residence far away from the premises occupied by him then the tenant can legitimately continue to occupy the premises either by himself or by a member of his family and the court may come to conclusion that the acquisition of such a residence is not such as to forfeit the protection of the tenant to the occupation of the premises. In such a case proviso (h) would not be attracted. But when the tenant himself goes away with his family to occupy the new residence he cannot ask the court to consider his claim to keep the present premises also inasmuch as he has no need thereafter to keep the premises. In those circumstances the acquisition of a residence even far away from Delhi would attract proviso (h).
10. In the present case the acquisition of premises by the tenant at Jabalpur did not attract proviso (h) for the simple reason that the father of the tenant as a member of his family continues to occupy the premises and thereby proves the need of the tenant to occupy them. In the absence of such a member of the tenant's family occupying the premises, even the acquisition of the new residence at Jabalpur would have attracted proviso (h) to Section 14(1).
11. In the above circumstances, the appeal is allowed. The order of the Rent Control Tribunal is set aside and that of the Controller dismissing the petition of the landlord for the eviction of the tenant is restored. There will be no order as to costs.
12. Appeal allowed.