Delhi High Court
Shri Satyendra Kumar Sharma vs Shri Jitender Kudsia on 21 April, 2005
Equivalent citations: 119(2005)DLT498, 2005(82)DRJ172, 2005 A I H C 4067, (2005) 82 DRJ 172, (2006) 1 RENTLR 9, (2006) 1 RENCR 206, (2005) 119 DLT 498
Author: O.P. Dwivedi
Bench: O.P. Dwivedi
JUDGMENT O.P. Dwivedi, J.
1. This revision petition is directed against the order dated 18.1.99 passed by Additional Rent Controller, Delhi whereby he dismissed the petitioner's eviction petition filed u/s 14(1)(e) read with section 25B of the Delhi Rent Control Act ( for short the 'Act') on the ground that purpose of letting was found to be residential-cum-commercial.
2. Briefly narrated facts leading to this revision petition are that the petitioner filed an eviction petition seeking eviction of the respondent from the premises No. 4965, 4965/1, New Darya Ganj , New Delhi also known as 26, Netaji Subhash Marg, Darya Ganj, New Delhi on the ground of personal bonafide requirement. It was pleaded in the petition that property belonged to his father Shri Hari Har Saroop Sharma who inducted the respondent as tenant in the mezzanine floor comprising of three rooms along with one bath and WC combined. It was further pleaded in the eviction petition that tenancy commenced in the year 1956 vide a rent note dated 20.8.56 and it was for residential purpose only. The petitioner was working with ONGC. He retired as Deputy Director is now living in a rented accommodation at A-57, NDSE Part-I, New Delhi and he requires the demised premises for his own use and occupation for residential purpose. It was further pleaded that as a result of family partition, the demised premise save fallen to his share and he is the owner thereof and he has no other reasonably suitable residential accommodation available to him. The eviction petition was contested by the respondent who denied the alleged family partition and the ownership of the petitioner. It was further pleaded that the premises were let out for residential-cum-commercial purpose and the respondent herein was running Bharatiya Collage for girls from the demised premises. Respondent got employment in Shri Ram College of Commence in the year 1959-1960 so he closed the said institute which was purchased by the petitioner's father in the year 1960. Thereafter his wife started running an educational institute for the girls in the name of ' Join Us'. The respondent had produced some receipts whereby Bhartiya College run by him was purchased by the petitioner 's father in the year 1960. In these receipts and in some other receipts the respondent has been described as principle of Bhartiya College. Besides respondent also produced a register for the year 1959-60 containing the name of the teachers and the students of the said college. Two more registers for the year 1981-82 belonging to coaching classes being run by his wife in the name and style ' Join Us' were also produced.
3. After grant of leave to defend, parties went on trial. Petitioner examined Sh. Kishan Singh, an Officer of ONGC, as AW-1; petitioner himself as AW-2 and one Iqbal Singh.AW-3. Respondent examined himself as RW-1 and one O.P. Banati , RW-2. After considering material on record and case laws cited at bar, learned ARC came to the conclusion that petitioner is the owner/landlord and that he requires the demised premises for his own residence as he has no other suitable accommodation. However, on the question of purpose of letting, learned ARC was influenced by the fact that in the receipts and the agreement regarding taking over of the college by the father of the petitioner which have been proved as Ex. RX-4, RX, RX-1, RX-2, the respondent has been described as principle of the Bhartiya College which indicates that he was actually running the said college in the demised premises till 1960 and thereafter his wife has been running the educational institute for the girls in the name of 'Join Us'. Learned RC therefore concluded that purpose of letting was residence-cum-commercial and therefore the provisions of section 14(1)(e) are not available to the petitioner for seeking eviction of the respondent. Eventually eviction petition was dismissed by the impugned order. Feeling aggrieved thereby, the petitioner preferred this revision petition.
4. I have heard learned counsel for the parties and perused the record.
5. Learned counsel for the petitioner vehemently contented that the petitioner stated on oath about the loss of original rent deed dated 20.8.56 and he was not at all cross examined on that point. Therefore the petitioner must be deemed to have proved loss of the original and was therefore entitled to lead secondary evidence by producing photo copy of the rent deed marked 'A'. Reliance was placed on 28 (1985) DLT page 360; 93 (2001) DLT page 1; and 1998 (46) DRJ page 7. There is no dispute with the provision of law that if a witness is not cross-examined on a particular point, the opposite party must be deemed to have accepted truth of that statement and therefore when petitioner was not cross-examined regarding the loss of original rent deed dated 20.8.56, he becomes entitled to lead secondary evidence in the form of photo copy mark 'A' but mere production of the photo copy by itself does not prove its execution. In the written statement tenant has specifically denied the execution of any rent not dated 20.8.56. It was, therefore, for the petitioner to prove its execution but in his statement on oath he has no where identified the signatures of the respondent on mark 'A' nor the petitioner has produced any attesting witness named in marked 'A'.
6. On the contrary respondent has specifically denied his signatures on the said document. Thus the photo copy marked 'A' has not been formally proved. Learned ARC, therefore, rightly concluded that for ascertaining the purpose of letting the photo copy mark 'A' is of no help. But that is not the end of the matter.
7. The moot point for consideration in this case is whether in all cases where property is let out for mixed user the landlord is dis-entitled from claiming eviction under section 14(1)(e) of the Act? The consistent view of this court and the apex court has been that where the premises have been let out for mixed user, the court will have to ascertain what was the dominant purpose/user. If the court comes to the conclusion that the dominant purpose/user was residential and commercial user was only permissive and not purposive, then the purpose of letting remains residential and therefore landlord will be entitled to seek eviction under section 14(1)(e) of the Act. Reference in this connection may be had to some decisions of this Court. In the case of K.B. Mathur v. Sheel Kumar Saxena- 1989 (2) RLR the facts of the case were that after initial letting, some additional space was carved out in the portion of the occupation of the tenant. It was allowed for storing of goods for which Rs. 800/- p.m. had to be paid extra. This Court held that substantial portion is used for residential purpose. It was not the tenant's case that dominant purpose was commercial and therefore landlord could invoke provisions of section 14(1)(e) of the Act on the ground of personal bonafide requirement. In the case of Jagmohan Singh Wadhera v. K.M. Bhatnagar- 59 (1995) Delhi Law Times 707 the landlord sought eviction under section14(1)(e) of the Act on the ground of personal bonafide requirement. Tenant contested the petition on the ground, inter alia, that premises was let out for residential-cum-commercial purpose and therefore the ground of eviction under section 14(1)(e) of the Act was not available to the landlord. According to the tenant his wife had started business in the name of M/s Nidhi Enterprises and his son was running a firm in the name of M/s R.K. Industrial Appliances at the premises in suit. Both these firms were having their office-cum storeroom at the premises in question. The learned ARC accepted the tenant's version and held that the ground of eviction under section 14(1)(e) of the Act was not available to the landlord. In revision this Court. Arun Kumar, J. (as His Lordship then was) had re-apprised the entire evidence and came to the conclusion that there was no formal commercial activity in the premises and in any case the predominant user being residential, the ground of bonafide requirement is available to the landlord. In the case of Raj Kumari (Smt.) v. Hari Parshad (Deceased Thr. Lrs.-2003 V AD (Delhi) 405, the tenant contested the petition on the ground that he has been using the demised premises consisting of one room for ironing the clothes which was his vocation, besides residence. M.A. Khan, J. held that even if this one room was incidently used for ironing the clothes, the ground for eviction under section 14(1)(e) of the Act will be available to the landlord. The same test ire dominant purpose/user has been approved by the apex court in the case of Precision Seel and Engg. Works and Anr. v. Prem Deva Niranjan Deva Tayal- . In that case agreement itself stipulated that tenant will be free to use the demised premises in part or in full for office purpose provided the rules of the local authorities so permit but primarily the premises were let out for residence. The Supreme Court took note of various earlier decisions on this point namely:
1988 2 SCC 172, Hiralal Kapur v. Prabhu Choudhury , Nai Bahu v. Lala Ramnarayan , Allenbury Engineers (P) Ltd. v. Ramkrishna Dalmia AIR 1925 BOM 398: 27 BOM LR 937, Lakshman Santu Sintre v. Balkrishna Keshav Shetye. (1921) 1 KB 541: 1920 ALL Er Rep 366: 90 LJ KB 656: 125 LT 21, Waller and Son Ltd. v. Thomas and in para 16, the apex Court observed as under:-
16. In our opinion, for the purpose of section 14(1)(e) of the Act, so long as the principal and dominant purpose of letting is residential merely because a mixed user of the premises or user of a part or incidental or ancillary user of the premise is permitted for activities other than residential, the purpose of letting the premises would not cease to be residential and the premises would continue to be governed by Section 14(1)(e) of the Act.
8. Another argument raised on behalf of the tenant was that explanation to clause 14 (1) (e) of the Act, lays down if the premises were let out for residential purpose, even if the tenant subsequently started using the premises for some incidental commercial purpose without the consent of the landlord, that would not alter the purpose of letting. It was, therefore, argued on bahalf of the tenant that if in a given case the evidence suggests that the premises were put to non-residential use with the content of the landlord, it will take premises out of the expression "premises let out for residential purpose". The Supreme Court negated this argument with the observation that the enactment of the explanation is ex abundanti cautela. All that the explanation says is that the tenant cannot by his unilateral act of impermissible user, alter the purpose of letting. This explanation has nothing to do with determining the main, principal or dominant purpose of letting.
9. Viewed in this legal perspective, I think the premises in question clearly falls within the expression "premises let out for residential purpose" as used in section 14(1)(e) of the Act. Regarding the user of the premises, the tenant Jitender Kudsia, RW-1 in his cross examination has stated that room marked X as shown in the site plan Ex. AW-2/2 of the demised premises is used as a drawing room when there are no classes. According to him sofa-set, TV etc are lying in room X. As regards adjoining room marked 'Y', it is used as bed room when there are no classes. The third room mark 'Z' is used as kitchen. Respondent's family consists of respondent himself, wife, two sons and elder son is married. According to him, he does not have separate room for himself and his wife. In earlier part of his cross examination, he admitted that he has already built a house on a plot measuring 300 sq. yds. There are four bed rooms in that house which his son is occupying. From his statement it is clear that all the rooms marked X, Y, Z as shown in the site plan are predominately used for residential purpose. No particular room is earmarked exclusively for running coaching/tution classes. He is not running any regular school, college. He was only providing tution/coaching to girls up to 1960. Thereafter his wife started running coaching the girls in bakery, toy making etc.,. His venture namely Bhartiya College for girls earlier run by him or 'Join Us' being run by his wife is not recognized or affiliated to any recognized institute. Besides giving of tuition to the students in day time is not incompatible with residential user of the premises. An academic or intellectual pursuit, per se, cannot be said to be a commercial/business activity. Under the circumstances, the obvious conclusion is that demised premises were let out/used for residential purpose and its incidental user for giving tuition or coaching to aspirant boys/girls by the tenant even with the consent of the landlord, will not change the dominant purpose/user. Therefore, in view of law discussed above, the landlord will be entitled to seek eviction under section 14(1)(e) of the Act if other ingredients are made out. In the present case learned ARC has held that petitioner/ landlord is he owner of the premises and he requires demised premises bonafide for his residence and he has no other reasonably suitable accommodation available to him. Under the circumstance, I think, eviction order under section 14(1)(e) of the Act should have be on passed in favor of the petitioner.
10. Learned Sr. Counsel for the respondent Mr.Valmiki Mehta, contended that in the paramount lease executed in favor of the father of the petitioner nature of the premises is described as commercial. The plot underneath the demises premises was given on perpetual lease for erecting a commercial building thereon. Therefore, the nature of premises must be held to be commercial. In these proceedings this court is not required to decide whether the construction on the plot underneath has been raised according with the perpetual lease and sanctioned plan, if any. Demised premises are situated on the mezzanine floor and even according to the respondent himself the same was let out for mixed user. Therefore, purpose for which the plot underneath could be used as mentioned in the paramount lease would not determine the purpose of letting as agreed between the parties. Even according to the respondent himself the letting purpose was residential as well as holding of coaching classes and in view of my finding that the predominate purpose/user was residential, the ground for eviction under section 14(1)(e) of the Act will be available to the landlord in view of the case law discussed above.
11. During the pendency of the petition, the respondent has also filed an application under O. 41 R. 27 CPC for producing additional evidence namely two photographs of Bhartiya College for girls pertaining to the year 1956-1957 and 1958-59. I think, these photographs will not strengthen the case of the respondent any further because as I have already noted the running of coaching classes for boys and girls would not alter the dominant purpose/user of the premises which was basically residential.
12. In the result, this petition succeeds. The impugned order is hereby set aside and an eviction order under section 14(1)(e) of the DRC Act is hereby passed in favor of the petitioner against the respondent who is given six months time from today to vacate the premises in question.