Delhi District Court
Vikram Kharbanda vs Smt. Manjit Kaur on 6 April, 2021
IN THE COURT OF MR. DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE/RCT: WEST DISTRICT
TIS HAZARI COURTS: DELHI
RCT No. 41/2018
CNR No. DLWT01-010425-2018
In re:
Shri P.L. Kharbanda (deceased)
Through Legal Representatives
1. Vikram Kharbanda
S/o Late Sh. P.L. Kharbanda
R/o J-13/51, Rajouri Garden,
New Delhi
2. Tagore Kharbanda
S/o Late Shri P.L. Kharbanda
R/o C-3/31, Janakpuri,
New Delhi . . . . . . Appellants
Versus
1. Smt. Manjit Kaur
W/o Shri S.S. Lamba
2. Dr. Jaspreet Singh Lamba
S/o Shri S.S. Lamba
Both R/o C-140, Sarvodaya Enclave,
New Delhi-110017
3. Smt. Janak Gambhir
W/o Sh. Avinash Gambhir
R/o C-611, Sushant Lok-I,
Gurgaon
RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 1 of 36
4. Smt. Avinash
W/o Shri Anand
R/o 17/165, Iind Floor,
Subhash Nagar,
New Delhi
New Address:
R/o G-229, Sushant Lok,
Phase-II, Gurugram (Haryana)
5. Smt. Ramma
W/o Late Shri Ved Prakash Khullar,
R/o M-9, Vikaspuri,
New Delhi . . . . . . Respondent / tenant
Date of filing appeal : 07.11.2018
Date of hearing arguments : 17.02.2021
Date of Judgment : 06.04.2021
Appearances:
Mr. J.S. Garkal, Advocate for the LR No.1 of the deceased appellant.
Mr. Gandharv Kharbanda, son of LR No.2 of the deceased appellant.
Sh. Ashok Popli, Advocate for the respondent / tenant Nos. 1 and 2.
JUDGMENT
1. This judgment shall decide an appeal filed by the appellants, under Section 38 of Delhi Rent Control Act, 1958, who are legal heirs/representatives being the sons of the deceased P. L. Kharbanda, who was admittedly the original tenant in the tenancy premises, whereby they have assailed the impugned judgment dated 20.10.2018 passed by the Court of Sh. Ajay Nagar, the then Ld. Commercial Civil Judge-cum-ARC, West Tis Hazari Courts, Delhi (here-
RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 2 of 36in-after referred as the Ld. Trial Court) in eviction petition bearing No. 25922/2016 tilted as 'Smt. Manjeet Kaur Lamba v. P. L. Kharbanda (deceased through LRs), by which judgment the eviction petition under Section 14 (1) (h) of the DRC Act filed by the petitioners / landlords was allowed.
FACTUAL BACKGROUND
2. In a nutshell, the case of the petitioners / landlords was that previously Sh. Kailash Chander Malhotra S/o late Shri Daulat Ram Malhotra was the sole owner/landlord of premises no. J-13/51, Rajouri Garden, Delhi and the respondent / tenant Sh. P. L. Kharbanda was tenant under him paying rent @ Rs.600/- per month. It was averred that the previous owner Sh. Kailash Chand Malhotra sold the entire premises including the tenancy premises comprised in the aforesaid property in their favour vide registered sale deed dated 19.11.2004, and thus, they have become owners and landlords of the tenanted premises under the tenancy of the respondent / tenant .
3. The case of the petitioners / landlords was that initially the ground floor comprising of three bed rooms, drawing room, kitchen, latrine and bathroom in the house J-13/51 along with fixtures, fittings, light connection and water connection was let out to respondent / tenant "for residential purposes" only as per rent note dated 4th December, 1967 (Marked Ex. PW-5/1). It is further the case of the petitioners/landlords that two rooms on the first floor were also let out to the respondent / tenant along-with fixtures and fittings for "residential purposes", which was acknowledged by the respondent / tenant in the RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 3 of 36 Rent Note dated 04.08.1968 marked Ex.PW-5/2}. It is further the case of the petitioners/landlords that the third room on the first floor was further allowed to be occupied by the respondent / tenant @ Rs. 90/- per month, and thereby, the entire accommodation on the ground floor and the first floor came under the tenancy of the respondent / tenant except the terrace @ Rs. 600/- per month.
4. The grievance of the petitioners / landlords was that sometime prior to filing of the eviction petition, they came to know that respondent-tenant has acquired vacant possession of a house for residence on allotment of property bearing no. C-3/31 Janakpuri, New Delhi (referred as the "allotted property") built on a plot measuring 126 meters having ground, first and second floors; and that the respondent / tenant along with his family members started residing in the "allotted property". Accordingly, eviction of the respondent / tenant was sought under Section 14 (1) (h) of the DRC Act.
5. The respondent / tenant hotly contested the eviction petition and in his written statement inter alia took the preliminary objections that the petition filed through attorney Sh. S. S. Lamba on behalf of the petitioners / landlords was not maintainable as the Power of Attorney dated 22.12.2004 was defective giving no authorization to him to file the eviction petition; and that the rent note dated 04.08.1968 having page no. 26 to 28 was incomplete and deliberately suppressed or not filed by the petitioners / landlords with ulterior motives; and since there were two rent notes dated 04.12.1967 and 04.08.1968, two different tenancies were created in respect of different portions, and RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 4 of 36 therefore, eviction petition was bad for mis-joinder of causes of action. Further, denying that the premises was let out for residential purposes, it was stated that the premises had rather been let out for commercial purposes; and that Smt. Ram Rakhi, who was initially the landlady had given the ground floor of the property in question on rent to the respondent / tenant and permitted him to use it for commercial purposes allowing him to run "educational coaching of students and use the premises commercially".
6. It was stated that when the business of respondent / tenant started flourishing, he made a request to Smt. Ram Rakhi for further space and the latter agreed to let out the rest of the premises to him for supervision of Coaching Centre as well as for expansion of the school in the rest of the premises and use the premises for commercial purposes. It was stated that Smt. Ram Rakhi along with her son Sh. Kailash Chand Malhotra used to visit the tenancy premises "on and off"
and there are several correspondences to the effect that commercial use was allowed. The respondent / tenant also took the stand in the written statement that on the death of Smt. Ram Rakhi the property comprising the tenancy premises devolved upon her son i.e. Kailash Chand Malhotra, who vide letter dated 02.04.1976 called upon him to sign a fresh rent note, which was then executed but the said rent note for running school is in the care and custody of Sh. Kailash Chand Malhotra. Denying that the premises was let out for "residential purposes" only, it was stated that the premises had been inspected on several occasions by the officials of the MCD and Provisional RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 5 of 36 Certificate was granted to the respondent-tenant to run a school by the respondent / tenant after obtaining a 'NOC' from the landlord i.e. Sh. Kailash Chand Malhotra.
7. The petitioners / landlords filed a replication to the written statement and inter alia denied that the premises had been let to the respondent / tenant for commercial purposes and it was denied that any 'NOC' was given by Sh. Kailash Chand Malhotra to allow the respondent / tenant to run a school from premises in question; and it was submitted that the property in question including the tenancy premises has always been assessed for house tax purposes by the MCD on "residential basis:. It was denied that any recognized or unrecognized school or classes were ever run from the premises in question.
THE TRIAL WITNESSES EXAMINED BY THE PETITIONERS / LANDLORDS
8. During the course of long trail, the petitioners / landlords in order to prove their case examined the following witnesses:- PW-2 Sh. Suresh Kumar, Head Clerk from MCD, Education Department, Delhi, who deposed about documents Ex. PW 1/11 which is a RTI reply by the Department with a list of schools recognized by the MCD in West Zone, in the year 2005 and another list of the year 2006 upto V th standard Ex. PW 2/2 which was 'objected to' by the Ld. Counsel for the respondent / tenant, probably for the witness having no personal knowledge of the contents. The documents suggest an inference that RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 6 of 36 no school was found running from the property in question during th relevant time falling in the West Zone.
9. PW-3 was Sh. Anil Kumar, UDC from the office of Sub Registrar-II, Janakpuri, Delhi. He deposed about the registered Sale Deed dated 01.12.2004 in favour of the petitioners / landlords, the certified copy of which is Ex. PW 1/1.
10. PW-4 was Ms.Manpreet Kaur, EO, Zone -15 District West, Karampura, Delhi. She produced the summoned record (only photocopies) with regard to letter dated 25.08.2005 signed by Ms. Vimla Singh, EO Zone- 15 Ex. PW 4/2 and another letter which is a dispatch letter by Ms. V. Tirkey, Dy. Director, Education, West District, New Delhi dated 30.08.2005 Ex. PW 4/2. The said testimony invites an inference that no recognition was granted for any Tagore School from the property in question.
11. PW-5 was the main witness, namely Sh. Kailash Chand Malhotra. examined by the petitioners / landlords, who filed his sworned affidavit in evidence dated 11th November 2005 Ex. PW 5/X and reiterated that the premises in question was let out to the respondent / tenant for "residential purposes" as confirmed by the deceased respondent / tenant that vide two rent notes which are marked Ex PW- 5/1 & WP-5/2 respectively vide order dated 16.10.2017 PW-5 was Sh. Kailash Chand Malhotra cross examined extensively on 13.09.2007, 01.05.2008 and lastly on 14.05.2008 and I shall dwell into his evidence later on in the present judgment.
RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 7 of 3612. Lastly, PW-6 was the attorney of the petitioners / landlords namely Sh. S. S. Lamba who filed his detailed affidavit in evidence dated 17th November 2005 Ex. PW 6/X and he was subjected to a long and searching cross examination on 13.09.2007 and lastly on 31.07.2008.
13. It is also relevant to note that vide order dated 22.08.2017 the documents which were tendered by PW-6 Sh. S. S. Lamba were re- exhibited as Ex. PW 6/1 to Ex. PW 6/13 except Ex. PW 6/3 and Ex. PW 6/4 as both documents had already been exhibited as PW 2/1 and Ex. PW 2/2. The documents in the examination- in- chief of PW-1 were ordered to be read as Ex. PW 6/1 to Ex. PW 6/13 instead of Ex. PW 1/1 to Ex. PW 1/13.
WITNESSES EXAMINED BY THE RESPONDENTS/ LRS.
14. It is pertinent to mention that the respondent / tenant died on 13.03.2006, and accordingly the present appellants who are LRs were brought on record on an application moved under Order XXII Rule 4 CPC allowed vide order dated 10.08.2006. The following witnesses were examined by the LRs of the deceased tenant:
15. Sh. Vikram Kharbanda was examined as RW-1 who filed his detailed affidavit in evidence dated 21.01.2012 Ex. RW1/A and deposed about various documents with regard to the purpose and usage of the tenancy premises upon which I shall delve later in the present judgment. He was put to a long and searching cross examination by Ld. Counsel for the petitioners / landlords on RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 8 of 36 11.04.2012, 05.07.2012 and lastly on 10.09.2012. In fact, RW-1 was also allowed to file an additional affidavit in evidence dated 24.02.2004 Ex. RW1/A-1 and thereafter, he was further examined on 23.12.2014.
16. RW-2 was Sh. Raj Bahadur was Grade-II Inspector in the office of Registrar of Societies who deposed to the effect that Ravindra Education Societies was registered on 05.10.1970 vide registration no. S-4689, showing its registered premises at J-13/51, Rajouri Garden, Delhi -110027. The copies of registration certificate, memorandum and rules and regulations of the societies were marked Ex. RW2/1 and RW 2 / 2. However, he also deposed that a letter dated 17.04.2006 was received on the letter of head of the Rabindra Education Society showing its address as C-3/31, Jawalapuri, New Delhi.
17. RW-3 was Mr. Tagore Kharbanda, younger son of deceased tenant late Sh. P. L. Kharbanda, who filed his detailed affidavit in evidence dated 23.01.2012 Ex. RW3/A and was subjected to a searching cross examination on 10.12.2012. This witness was also rechristened as RW3/A vide order dated 16.10.2017.
18. It appears that another witness viz., Sh. Surjeet Singh was examined as RW-3. He was LDC from MCD House Tax Department. He produced the summoned record with regard to notices under Section 126 of the DMC Act and the certified copies of which are Ex. RW 3/1 to RW 3/6. Vide order dated 16.10.2017, PW- Surjeet Singh was ordered to be read as witness RW-3 and the nomenclature of the RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 9 of 36 documents that were marked exhibits were ordered to be read accordingly. Suffice to state that in the cross examination of the said witness, the correctness of such documents was disputed upon which I would definitely reflect in the present judgment to be followed.
19. RW-4 was Ramesh Kumar, a Meter Reader in Delhi Jal Board, who deposed that as per the record the category of water connection for premises in question was category-II i.e. commercial since the year 1998. However, in his cross examination he clarified that water connection was taken in the year 1965 for domestic purposes but he unable to say if any inspection was done by the officials of Delhi Jal Board before converting the category of water connection from Category -I Domestic to Category -II Commercial.
20. RW-5 was Paramjeet Singh, an officer from Punjab & Sind Bank, Rajouri Garden, New Delhi. He produced the details of the current account of the Tagore School where the address of the school was indicated to be J-13/51 Rajouri Garden, New Delhi opened on 04.07.1978. Like wise, RW-6 was Satish Kumar, a Clerk in Canara Bank, who produced the record of another account no.7661 in the name of Tagore School showing the address from the tenancy premises, which was opened on 02.07.1985.
21. RW-7 was Sanjeev Narang from the MTNL who produced the record pertaining to telephone connection allotted, installed and in use from the tenancy premises in the name of Tagore School w.e.f. 1980 onwards.
RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 10 of 3622. RW-8 was Mrs. Veena Sikka. She was a Section Supervisor at Wazirpur Office of Employees Provident Fund Organization. She produced the summoned record with regard to Tagore School running from J-13/51 Rajouri Garden, New Delhi covered under PPF Act w.e.f. 06.03.1982.
23. RW-9 was Shree Bhagwan, Assistant (Legal), 'The Times of India' who produced the original copy of letter dated 27.10.1997 with regard to soliciting an advertisement from Tagore School with regard to certain vacancies, which is Ex. RW 9/A.
24. RW-10 was Sh. Ishwar Kumar Chandwani, Sr. Clerk from Delhi Transport Corporation who produced the summoned correspondence w.r.t allotment of DTC buses for providing transport facilities to the students sometimes from the year 1986.
25. RW-11 was D. Malika Arjun KS Dy. Officer 14 West . Karampura, Delhi -110015, who produced the record of some correspondence between the education department and the Tagoure School sometimes after 1981 which are Ex. RW 1/1 to RW1/4.
26. It is pertinent to mention here that the respondent / tenant no. 1 LRs of deceased tenant moved an application under Order XVIII Rule 17 read with section 151 CPC for bringing on record additional documents and since the Ld. Counsel for the petitioners /landlords had 'no objection', vide order dated 20.12.2016 and 17.05.2017 certain documents were allowed to be placed on the judicial record, which are marked Ex. RX-1 to Ex.RX-9, upon which I would reflect later on in the present judgment, if necessary.
RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 11 of 36IMPUGNED JUDGMENT
27. The impugned judgment dated 22.10.2018 passed by the Ld. Trial Court is a detailed one running into 55 pages, and in a nutshell, the Ld. Trail Court on appreciation of oral and documentary evidence on the record found that the petitioners/ landlords had been able to prove the first requirement of Section 14 (1) (h) of the DRC Act to the effect that the deceased respondent / tenant had been allotted and acquired vacant possession of another property no. C-3/31, Jankapuri, New Delhi built on a plot of land measuring 126 meters comprising of ground, first and second floors for residential purposes. Secondly, the Ld. Trial Court held that the purposes of letting of the tenancy premises was for residential purpose only vide rent notes Ex. PW 5/1 dated 04.012.1967 and Ex. PW 5/2 dated 04.08.1968; and though the premises had been used as commercial purposes for the last more than 40 years, it does not prove that the agreed purpose of letting was not residential.
28. In deciding such issue, the Ld. Trial Court relied on decisions in Y. Rajeshwari v. Bombay Tyres International Ltd., 37 (1989) DLT 22; Inder Singh Ahluwalia v. Prem Chand Jain & Ors., 1993 (25) DRJ; S.K. Gupta v. R.C. Jain, AIR 1984 Delhi 187; M/s. Precision Steel & Engg. Works & Anr. v. Prem Deva Niranjan Deva Tayal, 2002 Insc. 525; Satyendra Kumar Sharma v. Jitender Kudsia,119 (2005) DLT 498; Trilochan Singh v. Daya Shankar & Ors., case RC SA No. 34/2000 & CM 19587/2010; Sharifuddin v. Mehrun Nisha & Ors. 148 (2008) DLT 154; Zahid Hussain Thr. LRs RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 12 of 36 v. Aenul Haq Qureshi Thr. LRs, 113 (2004) DLT 518; S. Sanyal v. Gian Chand, 1968 AIR 438; Smt. A.N. Kapoor v. Smt. Pushpa Talwar, 1992 SCR (1) 472; Kartar Singh v. Chaman Lal & Ors. 1969 SCC (1) 760; D.C. Oswal v. V.K. Subbiah & Ors., 1991 SCR Supl. (2) 203; Salesh Ch. Jain v. Vinesh Ch. Sheikh, 1986 RLR 17; Ganpat Ram Sharma & Ors. v. Smt. Gayatri Devi, 1987 SCR (3) 539; Nihal Singh v. Dalip Singh Lamba, 1994 RLR 468; Delhi Jai Board v. Surendra P. Malik, 2003 (68) DRJ 284; Indian Cable Company Limited v. Prem Chandra Sharma, 1989 RLR 495.
GROUNDS OF APPEAL
29. The impugned judgment dated 20.10.2018 is assailed by the LRs of the deceased respondent-tenant / appellants inter alia on the grounds that Ld. Trial Court erred in holding that the tenanted premises was taken for "residential purposes" only on the basis of agreement dated 04.12.1967 Ex. PW 5/1 which was in fact a letter addressed to the erstwhile owner by late Sh. P. L. Kharbanda vide paragraph no. (6) of which it was stipulated "You will, however, have no objection, if at any time some educational coaching of the students is done in the premises" which would goes to suggest that the premise was let out for dual purposes i.e. residential as well as commercial purposes; and that the Ld. Trial Court failed to appreciate that complete pages of rent deed dated 04.08.1968 Ex. PW 5/2 were not placed on the record or proved; and Ld. Trial Court failed to appreciate the evidence of RW-2 and RW-3, who were government officials and categorically deposed that the tenancy premises was being used for RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 13 of 36 "commercial purposes" i.e. for running a school. In particular pointing out that RW-3 produced the certified copies of the notices issued to the owner under section 126 of the DMC Act Ex. RW 3/1 to Ex. RW3/6 whereby the assessment for the purpose of house tax with regard to the premises in question was sought to be enhanced for the reason "change in utility residential into commercial" and it is pointed out that the survey was carried out on 18.12.1967 and PW-5 Sh. Kailash Chander Malhotra filed objections Ex. RW3/PX-1 but did not utter even a single word regarding the letting out of the premises to the deceased respondent / tenant for residential use only; and that Ld. Trial Court failed to appreciate that the erstwhile owner let out the property firstly comprised in the ground floor and with passage of time the entire property had been let out for commercial purposes i.e. to run Tagore School with regard to which relevant documents were proved by the LRs of the deceased respondent / tenant.
30. The impugned judgment is further assailed inter alia on the ground that the area in question is predominantly a main market area and even the Urban Development Department vide its Gazette Notification dated 15th September 2006 notified the area in question for mixed land user; and that the Ld. ARC failed to appreciate that Tagore School had been running from the tenancy premises since 01.12.1967 on the ground floor and later started functioning from the upper floors on registration of the society and the said premises has been used for more than 40 years for running Tagore School. It was stated that the Ld. ARC failed to appreciate the evidence led by the LRs of the deceased respondent -tenant and the finding that the premises was let RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 14 of 36 out for residential purposes is based on surmises and conjectures and contrary to the law in the case of Sardar Kartar Singh v. Chaman Lal, AIR 1969 SC 1288.
ARGUMENTS ADVANCED BY LD. COUNSEL FOR PARTIES
31. Mr. J.S. Garkal, Ld. Counsel for the appellants/LRs of the deceased tenant urged that the ground floor of the tenancy premises was let out w.e.f. 01.12.1967 for "commercial purposes" as well to run a School and since then subject property has been in use for running a Kindergarten -cum- Crèche school. Referring to the notices under Section 126 of the DMC Act, it was urged that the MCD had sought to revise the rateable value for the purposes of house-tax for "the change in utility of the premises from residential to commercial" and it was urged that no appeal was filed by the original owner/landlord Sh. K.C. Malhotra under Section 169 of the DMC Act; and nor in his objections to the proposed increase in the rateable value any reliance was placed on the rent note Ex.PW-5/1. It was strenuously argued that PW-5 K.C. Malhotra in the later rent note Ex.PW-5/2 rather again admitted that the tenancy premises was being used for "commercial purposes" and he never objected to the user of the premises for running of the school; and that had the respondent -tenant been using the premises contrary to the purpose for which it was let out, the erstwhile owner/landlord would not have dared to allow him to occupy the fresh construction i.e. the three rooms on the first floor just after a year or so of the creation of the tenancy.
RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 15 of 3632. Mr. Garkal, Ld. counsel took me through the testimony of witnesses examined on behalf of the appellant/ LRs of deceased respondent / tenant and various documents pointing out that Ravinder Education Society was registered on 05.10.1970 and the water connection was converted into Category-II viz. non-domestic purposes and provisional recognition was granted by the education department, by Delhi Administration in 1979 and it was only in the year 1985 that a Secondary school came to be run from a different premises at Mayapuri, New Delhi. The long and short of the arguments of the learned Counsel for the appellants was that from the year 1967 till 1995 the premises had been used uninterruptedly for running of a school and all the documents, which have been filed and proved on record by the witnesses would show that same were made in ordinary course of business. It was thus urged that ingredients of Section 14 (1) (h) of the DRC Act are not made out since tenancy premises was let out for composite purpose. Ld. Counsel for the appellants/ LRs of deceased tenant has placed reliance on decisions in case Dr. Gopal Dass Verma v. Dr. S.K. Bhardwaj & Anr, 1963 AIR 337; S. Kartar Singh v. Chaman Lal & Ors., AIR 1969 Supreme Court 1288; D.C. Oswal v. V.K. Subbiah & Ors. AIR 1992 Supreme Court 184; and A.N. Kapoor v. Smt. Pushpa Talwar, 1992 AIR 799.
33. Per contra Mr. Popli, Ld. Counsel for the petitioners/ landlords, who are respondents in the present appeal, urged that two rent notes Ex.PW-5/1 and Ex.PW-5/2 emphasized that the tenancy premises had been let out for "residential purposes"; and that in the entire written statement there was no iota of assertion of running RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 16 of 36 Tagore School from the tenancy premises or running of Coaching classes/Center for nursery students with any sense of permanency. Much reliance was placed on the testimony of PW-5 and this Court was taken through various documents placed on record by the parties. Ld. Counsel for the petitioners/landlords placed reliance on decisions in Shrinavas Kasherlal Palod v. Vithal Shivagir Gosavi, 1993 Law Suit (SC) 982; Keshav Kumar Swarup v. Flowmore Private Limited, (1994) 2 SCC 10; and Prakash Chandra v. Bhajan Singh, 1997 (3) WLC 501.
DECISION
34. I have given my anxious consideration to the submissions advanced by the Ld. Counsel for the rival parties at the Bar. I have also gone through the trial Court record and the evidence brought on record besides the documents relied upon by the parties. I have also perused the written submissions filed by the ld counsel for the rival parties along with the case law on the judicial record.
35. Section 14 (1) (h) of the DRC Act provides as under:-
"Section 14 (1) : Not withstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant.
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more grounds only.
Section 14 (1) (h): that the tenant has, whether before or after the commencement of this Act, acquired vacant possession of, or been allotted, a residence."RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 17 of 36
36. A bare perusal of the aforesaid provision would show that it applies to those premises, which are let out for residential purposes only. In other words, it has to be proven that the premises from which the tenant is sought to be evicted as well as the premises, which is shown to have been newly acquired, are both residential in nature. Shorn off long academic discussion, it is also well settled that the purpose of letting as residential is primary matter in consideration while deciding an eviction petition u/s 14(1)(h) of the DRC Act and once it is held that such purpose is established, no weightage can be accorded to any deviation by the tenant with regard to its usage.
37. In propounding such disposition in law, reference can be invited to decision in the case of Y. Rajeshwari v. Bombay Tyres International Ltd., (supra), where the tenancy premises had been let for residential purpose vide the relevant clause in the lease deed but the tenant sought to rely upon few letters written by him to the landlord claiming that the purpose of letting was composite one. It was held that "it is settled law that if there is a written agreement between the parties showing the letting purpose unmistakably, then no other evidence is to be taken into consideration for determining the letting purpose except that if the letting purpose has been changed by any subsequent agreement, then the said agreement would govern the letting purpose". It was further observed that:
(8) Counsel for the respondent / tenant has referred to Smt. Kaila Devi v. Banarsi Das, 1980 (2) Rcj 139, wherein it has been rightly held that the very first requirement to be satisfied before a landlord can avail of the ground of eviction covered by Clause (e) of Sub-section (1) of Section 14 of the Act is that RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 18 of 36 the premises have been let out for residential purpose and for determining the letting purpose the Controller is to ascertain the purpose for which the premises have been let out by the landlord and not the purpose for which the premises have been used by the tenant. There is no dispute about this proposition of law. What has to be determined present case is as to what has been the letting purpose agreed upon between the parties. The document of lease, in my view, clearly showed that's premises have been let out for residential purpose only and the evidence discussed above with regard to reason for grant of increase of rent, in my opinion does not clinch the fact that there has been any agreement of the petitioner for changing the letting purpose from residential to commercial purpose. (Sentence in italic bold emphasized)
38. In the case of Inder Singh Ahluwalia v. Prem Chand Jain, 1993 (25) DRJ 147 it was held that "once there was a clear covenant in the Lease Deed restricting use of the premises for "residential only", no other evidence can be looked into for ascertaining letting purposes". Likewise in the case of S. K. Gupta v. R.C.Jain, (supra) it was held that "once letting purpose was categorical in in the lease deed, it was immaterial if the tenant changed the user to commercial without consent of the landlord. Merely because the tenant was using the portion of the house so as to run his office would not lead ipso facto to a conclusion that purpose of letting was composite".
39. In another case titled Precision Steel And Engineering v Prem Deva Niranjan Deva Tayal, (2003) 2 SCC 236, where the tenancy premises located in Geater Kailash, Part I, New Delhi on plot of land measuring 1000 sq yard comprised of four bedrooms, 3 bathrooms, 1 barsati, 1 garage and the servants' quarters along with one bathroom for servants was let out to the tenant and Clauses 6, 7, RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 19 of 36 12 and 16 of the licence deed, which were referred to by the learned counsel for the parties during the course of hearing, are extracted and reproduced hereunder:
"6. The licensees shall use the said premises for the residence of their Directors, partners and officers. The licensees will, however, be free to use the said premises in part or in full also for office purpose provided the rules of the local authorities so permit and in such an event the licensees shall pay to the owners any increase in local taxes etc. occasioned by such change of use of the said premises from residential to office.
7. The licensees shall not permit the said premises or any part thereof being used by any other person for any purpose whatsoever without the previous consent in writing of the owners and in default thereof the licence shall be liable for cancellation. The licensees shall not transfer possession of the premises or part thereof or otherwise carry on the business in the premises with any other person or assign, transfer, change or otherwise alienate their interest in the premises.
12. The licensees shall comply at all times with all the rules and regulations of the local authorities whatsoever in relation to the said premises.
40. While interpreting the said covenants, it was observed that "In our opinion the expression "the premises let for residential purposes" should be construed liberally and not technically or narrowly; meaning thereby, where the premises are solely let for residential purposes they are undoubtedly covered by Section 14(1)(e) but even when the premises are let out for composite or mixed purposes, if the predominant or main purpose of letting is for residential purposes, the same would be included within the expression "the premises let for residential purposes". An incidental, a secondary or unauthorized user of the premises for purposes other than residence would not take the premises out of the meaning of the expression "the premises let for residential purposes". (Paragraph 9) (Sentence in italic bold emphasized) Premises are capable of being classified into residential and non- residential depending on the purpose of letting. This is the broad classification. Question of construction and determining the purpose of letting may pose difficulty when the premises are let for RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 20 of 36 mixed, composite or dual purposes i.e. where the entire premises are allowed to be used for an overlapping purpose or the premises forming the subject-matter of one tenancy are allowed to be used for purposes more than one. In such a case it cannot be said that the premises would cease to be of either category i.e. they would be neither residential nor non-residential. Rather it would be necessary to find out what is the "main and dominant purpose" of letting as distinguished from "subsidiary, ancillary or incidental purpose". The theory of determining the purpose of letting by reference to finding out the main and dominant purpose of letting has ample judicial authority to derive support from. In Sewa Singh (Dr) v. Ravinder Kaur [(1971) 3 SCC 981 : 1970 RCJ 614] it was held that residential building will remain so even if it is used by a person engaged in one or more of the professions partly for his business or partly for his residence. The building in the occupation of the tenant was undoubtedly residential and on the evidence it was found that part of it was being used by the tenant, a medical practitioner for examining patients and prescribing medicines. In Allenbury Engineers (P) Ltd.v. Ramkrishna Dalmia [(1973) 1 SCC 7] to determine whether the tenancy was for manufacturing purpose within the meaning of Section 106 of the Transfer of Property Act, 1882, the Constitution Bench applied the test of "main and dominant purpose" as distinguished from "incidental purpose". The dominant purpose of lease was for storage and resale of the vehicles. Some spare parts were manufactured and used in the vehicles as incidental to the main purpose of disposal of the vehicles as without repairing or reconditioning the vehicles the disposal could hardly have been possible. It was held that the dominant purpose of the lease as manufacturing purpose was not established. In Sant Ram v. Rajinder Lal [(1979) 2 SCC 274] a cobbler carried on cobbler's business in the shop. Incidentally, he slept in the back portion of the shop at night while he worked during the day. On the off days he would go home at night. It was held that the purpose of letting remained exclusively commercial as the user of the back portion for sleeping in the night was not incompatible with day's user. (paragraph 10) THE ALLOTED PROPERTY
41. In the light of the said proposition of law, reverting back to the instant case, first thing first, the petitioner/landlord categorically pleaded vide paragraph 18 (a) (iv) of the eviction petition that the respondent / tenant had been allotted a site by the DDA and the tenant RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 21 of 36 had acquired possession of the allotted property viz. C-3/31, Janakpuri, New Delhi. There was manifestly no special denial of the said aspect by the deceased/respondent / tenant in the written statement, and it amounts to an admission of such fact. Further, RW-1 Vikram Kharbanda conceded in his cross-examination that his father had been allotted property No. C-3/31, Jankpuri by the DDA sometimes in 1969 and the construction was completed by 1975 and they shifted to the said premises in the year 1985. There is no challenge in the present appeal to the fact that respondent / tenant had acquired vacant peaceful possession of the allotted property and he shifted lock, stock and barrel to the allotted property with his family and started residing there at.
PURPOSE OF LETTING
42. On the petitioner/landlord having established allotment and taking over the possession of another property by the respondent / tenant for residential purposes, the most crucial aspect this case comes for discussion as to whether or not tenancy premises in question was let out for "residential purposes only". In order to appreciate the oral and documentary evidence brought on record, it would be expedient to refer to the relevant rent notes proved during the course of trial. However, before adverting to the contents of the Ex.PW-5/1 and Ex.PW-5/2 (also Ex.PW-2/1 and Ex.PW-2/2 respectively), it is pertinent to mention that same are wrongly described as 'Rent Notes', which infact are merely an affirmation and confirmation of the terms and RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 22 of 36 conditions of the lease on the part of the deceased/respondent / tenant in such two letters to Smt. Ram Rakhi, the erstwhile owner/landlady and mother of PW-5 Sh. Kailash Chander Malhotra. Now the letter Ex. PW-5/1, (which was initially also marked Ex.PW-2/1) described as rent note dated 04.12.1967 admittedly written and dispatched by deceased/respondent/tenant reads as under:-
4.12.967 "Shrimati Ram Rakhi, House No. KV-1507, Gali Sangtrashan, Paharganl, New Delhi Madam, I, Piare Lal Kharbanda son of Sh.Bhagat Ram Kharbanda, previously resident of V-2556,Rajouri Garden, New Delhi, thank you for your having given to me on rent the ground floor of your House No. J-13/51, situate at Rajouri Garden ( Village Tatarpur) New Delhi owned by yourself and your son Mr. Kailash Chander Malhotra of which I am in possession since 28th November,1967.
I confirm that the above said house is newly constructed, is in perfect good condition and the completion certificate thereof has been granted from the Delhi Municipal Corporation on 1-8-66. It is being let out to me for the first time. Prior to my occupation of the ground floor, the entire house was vacant and no part thereof had been let out any time before that.
I further confirm that I have taken the above said house on rent on the following terms and conditions:-
i) That only the ground floor of the above said house alone with fixtures and fittings, and light connection no. 14 Z.K. 370575 and water connection no. 12050 W.Z has been let out to me for residential purposes only. I have no concern whatsoever with the first floor thereof which is in exclusive possession.
ii) That the agreed rent of Rs. 375/- (Rupees Three hundred and seventy five only) will be paid to you through Mr. Kailash Chanter Malhotra in advance on 20th day of each English RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 23 of 36 Calender month sub3eet to the condition that If I pay Rs. 350/-
(Rupees three hundred and fifty only) on or before, 10th day of the month, my liability of rent for that particular month shall be completely discharged.
iii) That the tenancy is according to the English Calender Month and rent for December 1967 has already been paid to you through your Mr. Kailash Chander Malhotra under his receipt.
(iv) That the water and electric ( light and Power) connections are in perfect working order. Bills for water and electricity (light and Power) consumption will be paid by me direct to the authorities concerned and the paid bills will be made over to you at the time of payment of rent. For non-payment thereof, the liability for consequences will be nine.
(v) That the premises will be used for residence of myself, my wife and my four children and for none else.
(vi) that I shall not sublet, assign or otherwise part with ,the possession of the premises or any part thereof, nor permit any other person to reside therein or use thereof with,or without consideration as licensee or otherwise. You will, however, have no objection if, at any time some educational coaching of students is done in the premises.
(vii) That I shall not damage or permit to be damaged your property in my occupation and I shall not make any alterations, changes or modifications therein without prior written permission from your good self through your Mr. Kailash Chander Malhotra and shall abide by your rules and regulations, byelaws of the Delhi Municipal Corporation and of other Authorities. In case of breach of this undertaking, I shall make good all your losses.
(viii) That in the event I want to vacate the premises I shall give you under registered A.D. cover 3 clear calender months notice.
(ix) That you will have the right through your Mr: Kailash Chander Malhotra to inspect the premises at any time during the day.
(x) That on the termination of the tenancy, I undertake to give you vacant and peaceful possession under your written receipt RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 24 of 36 signed by your Mr. Kailash Chander Malhotra in the same condition as now existing, reasonable wear and tear excepted. All damage existing at the time of handing over the possession will be accepted and will be made good without any question.
(x) That, you will have the painting/white washing done as and when the condition of the house so requires.
Please acknowledge the receipt.
Yours faithfully, (PIARE LAL KHARBANDA) * Bold portions emphasized
43. A bare perusal of the contents of the aforesaid letter Ex.PW-5/1 (PW-2/1) would show that it was acknowledged by the respondent / tenant / deceased-tenant that the entire ground floor of the house along-with fixtures and fittings, light and water connection, which was a new construction and in perfect good condition had been let out to him for residential purposes only. Vide clause (v) of the said letter, it was further acknowledged by the deceased/respondent / tenant that 'the premise will be used for residence of myself, my wife and my four children and for none else' and vide clause (vi) there was a clarification that the premises may be used for "educational coaching of students". In other words, in the said letter Ex.PW-5/1, there is no iota of word or affirmation or assertion with regard to using the property for commercial purposes or for running of 'Tagore School'. Needless to state that the newly built construction was having three bedrooms with one drawing room, latrine, bathroom and Kitchen as shown in the site plans Marked RX-6, RX-7 and RX-8. That brings us to second letter RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 25 of 36 dated 04.08.1968 Ex.PW-5/2 (which was initially also marked Ex.PW-2/2), which reads as under:-
Dated : 4th August 1968 Shimati Ram Rakhi, Shri Kailash Chander Malhotra, House No. XV-1507, Gali Sangtrashan, Paharganj, New Delhi Madam/Sir I, Piare Lal Kharbanda son of Sh. Bhagat Ram Kharbanda, resident of J-13/51( Ground Floor), Rajouri Garden, New Delhi thank you for your having, given to me on rent two rooms i:, the first floor of your house No. J-13/51, situate at Rajouri Garden(village Tatarpur) New Delhi owned by yourselves of which I am in possession since Ist August 1968.
I confirm that the above said rooms are newly constructed, are in perfect good condition and are being let out to me for the first time.
I further confirm that I have taken the above said rooms on rent on the following terms and conditions:-
I) That only the two rooms at the first floor of J-13/51 Rajouri Garden, New Delhi along with fixtures and fittings have been let out to me for residential purposes only. I have no concern whatsoever with the IIIrd room of the first floor which is in your exclusive possession.
II) That the agreed rent of Rs. 170/- (Rupees one hundred and Seventy only) will be paid to you in advance on Ist day of each English Calender month and no deduction on any score including petty repairs of water, electric (light and power), fittings etc. shall be made III) That the tenancy is according to the English Calender month, and the rent for the month of August 1978 has alredy been paid to you.
IV) That the water and electric (light and Power) connections are in perfect working order. Bills for water and electricity ( light and power) consumption will ho paid by me direct to the authorities concerned and the paid bills will be made over to you at the time of payment of rent. For non-payment thereof, the liability for consequence will be mine.
That the rooms, bath room , kitchen and W.C. are fitted with electric bulbs, fancy fittings, fluorescent tubes and these will be kept in perfect condition. Any damage causld to them shall be made good by me without question. Any damage RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 26 of 36 cause to them shall be made good by me without question. I will also be responsible for the safe -custody of the glasses fitted in windows, , service window and ventilators. V) That the premises will be used for residence of myself, my wife and my four children and for none else.
VI) That I shall not sublet, assign or otherwise part with the possession of the premises or any part thereof, nor permit any other person to reside therein or use thereof with or without consideration as licensee or otherwise VII) That I undertake to use electric power/gas and no other fuel for the purpose of cooking, heating etc. (VIII) That I shall not damage or permit to be damaged your property in my occupation and I shall not make any alternations, changes, modifications therein without prior written permission of your goodselves and shall abide by your rules and regulations, bye-laws Municipal Corporation and of other authorities. In case of breach of this undertaking, I shall made good all your losses.
IX) That you will be at perfect liberty to have further construction , additions etc, on the first floor and I undertake to give you all facilities demanded for the purpose. X) That the main entrance and the open spaces together with bath room & W.C. shall be used by me jointly and in common with any occupant of the premises of the first floor. XI) That in the event I want to vacate the premises, I shall give you under registered A.D. cover three clear calender month's notice.
XII) That you will have the right to inspect the premises at any time during the day.
XIII) That you will in your discretion have the painting polishing / distempering done.
44. A bare perusal of the aforesaid letter Ex.-5/2 would also show that this was written by respondent / tenant /deceased-tenant, who acknowledged the letting out of two newly constructed premises on the first floor of the same premises to him with fixtures and fitting for residential purposes . Again vide paragraph (V), it was reiterated that portion shall be used for residence by himself, his wife and four children and none else. At the cost of repetition, the aforesaid two letter Ex.PW- 5/1 and Ex.PW-5/2 described as Rent Notes, no where mention that RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 27 of 36 the deceased/respondent / tenant acknowledged or affirmed that it was let out for commercial purposes or for running Tagore School. It was vide clause (vi) that the respondent / tenant /deceased-tenant again reiterated that "there was no objection for the use of premises for some educational coaching of students".
45. It is pertinent to mention here that the deceased/respondent / tenant in the written statement vide paragraph 5(A) of the preliminary objections pleaded as under:-
"A. That it is submitted that the Ram Rakhi who was the landlady initially have given the ground floor of the subject premises on rent to the respondent / tenant and permitted the respondent / tenant to use it for commercial purpose (same is apparent from the annexures as enclosed) and allowed the respondent / tenant to run educational coaching of students and use the premises commercially thereafter when the business of the respondent / tenant started flourishing, respondent / tenant requested to Mrs. Ram Rakhi for further space and Mrs. Ram Rakhi, who agreed to let out the rest of the premises to the respondent / tenant for the supervision of the coaching center as well as for the expansion of the school in rest of the premises and the use the premises for commercial purpose. That it is worthwhile herein to mention that the Mrs. Ram Rakhi along with his son Mr. K.C. Malhotra (Previous Landlord) visited several times at the subject premises and petitioner has several correspondent / tenant on this effect." (Sentences in bold emphasized)
46. What can be culled out from the aforesaid paragraph is that there was no mention that any Tagore School was run from the tenancy premises w.e.f 1st December, 1967 or that such school would run from the tenancy premises. There is no evidence that any particular portion of the ground floor or first floor was ever used specifically for RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 28 of 36 coaching or running of school. Infact it is the own case of the deceased respondent-tenant that Tagore School was being run from premise V- 257, Rajouri Garden, New Delhi since 1964. The permission was to allow incidental use for educational coaching of students in the nature of tuitions and not in the nature of running of a full-fledged school. Much mileage is sought to be drawn by the appellants from the notice under Section 126 of the DMC Act Ex.RW-3/1 whereby it appears that the premises was inspected on 18.12.1967 that described the tenant in occupation as Piare Lal Kharbanda (Tagore School) and the House-tax was sought to be revised for "change in utility from residential into commercial". Reliance is placed on another notice under Section 126 of the DMC Act Ex.PW-3/3, which suggests that the site inspection was done on 05.08.1968 and increase in ratable value was proposed due to increase in rental income frrm the tenant, which was described as Tagore School (Nursery KG IX Standard) and a portion on the first floor comprising of three rooms was described as "vacant for letting", which is belied from the letter/rent note dated 04.08.1968 Ex. Pw-5/2.
47. However, it is in evidence that PW-5 Kailash Chander Malhotra objected to the proposed amendment with regard to assessment year 1967-68 vide his reply to the MCD dated 20.04.1968 Ex.RW-3/PX-1 whereby it was categorically stated that there had been no change in the user or utility in the premises. It would be expedient to reproduce the objection vide paragraph (4) Ex. PW-5/PX-1, which was to the effect "the change of utility, which perhaps possibly refers to use of a small part of my house for educational coaching with RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 29 of 36 effect from 01.12.1967 when it was let out for residential purposes only and not 1.11.1967 is no change of utility. Such use is not open to objection and cannot legally be a ground for increase in rateable value". It was requested that the notice under objection be withdrawn. I do not find any substance in the plea of the learned Counsel for the appellants that no appeal under Section 169 of the DMC Act was filed since it is also proven on the record that tenancy premises in question has always been assessed for the purpose of house tax by the MCD on residential basis only, with regard to which there are proved on the judicial record two receipts for payment of house tax to the MCD dated 23.10.2002 and 09.09.2003 which are Ex. PW 6 / 7 and Ex. PW 6/ 6 respectively.
48. To my mind, PW-5 Kailash Chander Malhotra firmly stood his ground in substantiating that initially the tenancy premises on the ground floor and later on two additional rooms and then third one on the first floor were let out solely for the "residential purposes" of the respondent / tenant /deceased-tenant and his family members. Although, the letter Ex.PW-5/2 does show that there was 'no objection' as to the use of the premises for educational coaching of the students but there was no understanding that any particular portion of the ground floor and/or first floor would be used for the purpose of coaching or tuitions. The plea that the concluding page of rent note dated 04.08.1968 Ex. PW 5/2 was missing cuts no ice considering that the same was filed by the erstwhile owner in the Civil litigation of the parties by way of Annexure D-1, Copy of which is Ex. RW 5/B and RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 30 of 36 even the concluding two pages out of five pages do not make out a case that the premises in question was let out for commercial purposes. At the cost of repetition, there was no agreement or understanding to run a school. It is no where the testimony of the appellants in particular RW-1 and RW-3A that any particular portion of the tenancy premises was ever earmarked for running a school in some permanent manner by name of Tagore School.
49. In paragraph (E) of the affidavit of Sh. Kailash Chander Malhotra dated 31.01.2005 Ex. PW 5/RA, there was no admission by the erstwhile owner that the tenancy premises was let out for commercial purposes. It was specifically submitted that the premises was let out for residential purpose and not commercial and the tenant was permitted to give tuition to children but it was never let out for running coaching centre for nursery kids, which does not amount to an admission by the erstwhile owner that the purpose of tenancy was a composite one. The plea that PW5 in letter dated 20.09.1997 Ex.PW5/R2 admitted use of the premises for commercial purposes without any reservation and/or that document Ex.PW5/R1 showed repair of office room in the rented premises hardly cut much ice since the whole tone and tenor of the letters would show that PW5 Kailash Chand Malhotra was piqued that the rental of the premises was not enough to cover the cost of repairs and that the wrongful user of the premises was inviting increase in the rateable value of the property. The plea that the erstwhile owner did not take any legal action to stop the misuse of the premises by the deceased respondent/tenant is not RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 31 of 36 decisive either, particularly when PW5 Kailash Chand Malhotra had been insisting that the premises was on a let out for the purposes of residence.
50. The said inference is clearly substantiated by the list Ex. PW 2/1 and PW-2/2 that neither any recognized nor unrecognized school was run from the tenancy premises and the RTI reply Ex. PW 6/12 would also demonstrate that no school was ever recognized to be run in the name of Tagore School from the premises in question. There is further RTI reply dated 25.08.2005 Ex. PW 4/2 by Smt. Vimla Singh, Education Officer, Zone-15 that no school in the name of Tagore at J- 13/51, Rajouri Garden, New Delhi was recognized as per their record which information was supplied vide letter Ex. PW 6/13 to the attorney of the petitioners / landlords. Needless tot state that these documents were prepared by the public officials of the concerned Education Department in the ordinary course of discharge of their official duties and the same cannot be disputed.
51. It was also not disputed by the RW-1 and RW-3A that deceased respondent-tenant and his family members had been residing in the tenancy premises in question before shifting to the allotted property in 1985. There is no iota of evidence that any fresh rent note was executed after the death of Smt. Ram Rakhi on 20.09.1979 to change the purpose of tenancy to commercial nor there is any evidence that PW-5 Kailash Chander Malhotra ever granted any 'NOC' to the deceased respondent-tenant to run Tagore School from RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 32 of 36 the premises in question. All said and done, in the case of Shrinavas Kasherlal Palod v. Vithal Shivagir Gosavi (supra), cited by the learned Counsel for the petitioner/landlord it was held that once purpose of letting is proved mere acquiescence does not save the tenant if he used the premises for the purpose other than for which it was originally let out.
52. From the aforesaid discussion it is clearly discernible that as per letters/rent notes Ex.PW-5/1 and Ex.Pw-5/2, the premises had been let out for residential purposes to the deceased tenant and his family members and mere incidental use or allowing coaching of the students could not be said to be giving permission or consent to run school in the name of Tagore School or otherwise. The testimony of the witnesses examined by the appellants/ LRs of deceased respondent - tenant would only go to suggest that at some stage after 1970 there was an attempt by the respondent / tenant / deceased- tenant to change the user of the premises on his own without any written, express or implied consent of the previous owner/landlord. None of the witnesses examined by the appellants/ LRs of the deceased respondent- tenant substantiate their assertion. RW-2 Raj Bahadur simply deposed that the society viz., Ravindra Education Society was registered on 05.10.1970 vide certificate Ex.RW-2/1 but then the erstwhile owner/landlord had not played any role in the same. The testimony of RW-4 only reveals that category of water connection was changed to commercial sometimes in the year 1998 and the witnesses admitted that earlier it was for category-I i.e., domestic RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 33 of 36 category. The opening of bank accounts in the name of Tagore School from the year 1978 as coming in the testimony of RW-5 cannot bind the petitioners/landlords in any manner. So also is the case with allotment and usage of telephone connection from the tenancy premises as also operation of PPF account with regard to their employees w.e.f. 06.03.1982. Suffice to state that letters or documents Ex.RW1/1, Ex.RW1/3, Ex.RW1/5, Ex.RW1/8 and Ex.RW1/15 are self serving and cannot be relied upon.
53. Before finally drawing the curtains on the instant appeal filed by the appellants/ LRs of deceased respondent / tenant, I am afraid that the case law relied upon by the ld counsel for the appellants have no bearing in the matters in issue. The case of Dr. Gopal Dass Verma v. Dr. S.K. Bhardwaj & Anr (supra), was one where a particular portion of the tenancy premises was used exclusively for running ENT Clinic by the tenant doctor with the consent of the landlord for a long period of time. It was held that purpose of letting had ceased to be residential in nature. Likewise, in the case of S. Kartar Singh v. Chaman Lal & Ors. (supra), the tenant had been allowed to set-up an office for doing legal practice by the tenant advocate although initially the premises was let out for residential purposes. It was held that since the premises was let out for composite purposes, the petition under Section 14 (1) (h) of the DRC Act was not maintainable. The case of A.N. Kapoor v. Smt. Pushpa Talwar (supra), was one where although premises was let out for residential purposes, the landlord had also allowed the tenant to keep foreign students as Paying Guests in the tenancy premises.
RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 34 of 3654. In view of the aforesaid discussion, I find that there is no illegality, infirmity or perversity in the impugned judgment passed by the ld Trial Court and the petitioners/ landlords have been able to prove convincingly by way of preponderance of probabilities that the tenancy premises in question had been let out to the deceased respondent- tenant for residential purposes. Hence, there no merit in the present appeal and the same is dismissed. The impugned judgment dated 20.10.2018 passed by the learned trial Court under Section 14 (1) (h) of the DRC Act is hereby sustained resulting in an eviction order in respect of the tenancy premises in favour of the petitioners/landlords and against the appellants/LRs of the deceased tenant.
55. Before parting with this appeal, it should be recorded that an application u/s 151 C.P.C had been moved on behalf of the petitioners/landlords dated 06.03.2021, when this Court was on leave due to getting infected with COVID-19 corona virus, for a direction to the appellants /LRs to pay user charges at market rate of Rs. One lakh. This application cannot be entertained since no notice of the same has been served upon the appellants/LRs of the deceased respondent tenant. However, in view of the totality of the facts and circumstances of the present case, where the deceased/respondent-tenant and later the appellants have made unsavoury attempts to twist the facts and thereby prolong the disposal of the eviction petition, this appears to be a fit case where the appellants/ LRs of the deceased/respondent-tenant be burdened with exemplary costs, which is quantified on nominal terms @ Rs.10,000/- per month from the date of the filing of the present RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 35 of 36 appeal till the date of this judgment, which be paid within 45 days from today, failing which the appellants/ LRs of the deceased respondent tenant shall be liable to pay the same with penal interest @18 % per annum. This shall be without prejudice to the rights and contentions of the petitioners/landlords to claim damages for wrongful use and occupation of the tenancy premises for such period and/or rate as may be permissible in law.
56. Trial Court record along-with copy of this Judgment be sent back forthwith. File of appeal be consigned to the Record Room.
Digitally signed by DHARMESH DHARMESH SHARMA
SHARMA Date: 2021.04.08
14:21:59 +0530
Announced in the open Court (DHARMESH SHARMA)
on 6th April, 2021 Principal District & Sessions Judge/
Rent Control Tribunal (West)
Tis Hazari Courts: Delhi
RCT-41/2018 P.L. Kharbanda v. Smt. Manjit Kaur & Ors. Page 36 of 36