Delhi High Court
Sukesh Vohra vs Sulekh Chand Jain on 19 May, 1997
Equivalent citations: 1997IVAD(DELHI)479, 67(1997)DLT604, 1997(42)DRJ449, 1997RLR366
JUDGMENT Usha Mehra, J.
(1) MS.SUKESH Vohra, the petitioner an unmarried woman doctor by profession. She was working as doctor in the Health Department of Government of U.K. She is the owner/landlady of premises bearing flat No.A-1/62, Azad Apartments, Aurobindo Marg, New Delhi. The said flat was let out by her to the present resent respondent on a monthly rent of Rs. 3,300.00 . All her family members comprising of her mother sister and brother are residents of Delhi. At London she suffered arthrIT is of the joints. She experienced that on account of cold weather her arthrIT is problem aggravated and her conditions of joints deteriorated. She was advised by the specialists in London to live in a warmer climate because cold climate of London would adversely effect on her joints. With a view to settle in India she came in May, 1982 thinking that respondent's rent agreement was going to expire in February, 1983 she would occupy her house. But since the respondent did not vacate her flat hence she went back to London. Because of deteriorating health, she decided to take premature retirement and wanted to settle in India. She applied for eviction of this respondent in August, 1988.
(2) Leave to contest was granted. In the written statement, this respondent challenged the purpose of letting. According to him the flat in question was let out for composite purpose i.e. residential-cum-commercial. He had been running his business of assembling and repairing electric items in this flat. Moreover, the landlady being a permanent resident of London and owner of a house at London did not require the premises in question. Her requirement was not bonafide. He denied that the rent was Rs. 3,300.00 per month. On these facts the Additional Rent Controller (in short the ARC) set the case for trial. On behalf of petitioner/landlady as many as two witnesses were examined beside herself. On behalf of the tenant two witnesses were examined. He himself did not step into the witness box.
(3) The learned Arc by the impugned order dismissed the eviction petition filed by this petitioner primarily for the reason that the premises was let for composite purpose hence provisions of Section 14(1)(e) of the Delhi Rent Control Act (in short the Act) were not attracted. Since the premises was used for commercial purpose hence eviction under Section 14(1) could not be granted. Even otherwise, the petitioner did not require the premises bonafide as she had been well settled in London. There was no chance of her coming back to India. The suit premises being on 6th floor and the petitioner having been suffering from arthritis, would not be in a Position to climb the stairs. Availability of lift was considered by the Arc to be irrelevant. That the site plan filed with the petition did not disclose the correct suit premises. For these reasons he dismissed the petition.
AGGRIEVED by the impugned order, the petitioner landlady has challenged the finding of the learned Arc, on the grounds that learned Arc ignored the terms of the rent agreement. He misconstrued Clause 11 of the rent agreement beside ignoring the testimony of Shri U.S.Tekchandani, Secretary of the Navketan Cooperative Group Housing Society. The said Society allotted the flat to the petitioner. The said Society was a party to the tripartite rent agreement.
IN order to appreciate the respective contentions of the parties, it would be relevant to have quick glance at the tripartite rent agreement dated 10th February, 1980. On behalf of petitioner it was signed by her attorney Mr.G.R.Chopra, Advocate. On behalf of Cooperative Group Housing Society it was signed by its President, Shri Y.P.Rao. The respondent tenant Shri Sulekh Chand Jain signed it himself. Clause 1 of the tripartite rent agreement reads as under:-
Clause "THATWHEREAS the party of the third part has approached the party of the first part, the member of Navketan Co-operative Group Housing Society , who is an allottee of flat No.62, Building No.A-1, in the complex known and styled as Azad Apartments situated at Aurobindo Marg, New Delhi - 110016, for occupying it as a tenant under the parties of the first and the second parts."
CLAUSENo. 4 of the agreement stipulated that the respondent tenant was to pay the rent on account of the petitioner to the Second Party i.e. the Society, in order to facilitate petitioner to discharge her liabilities towards the Society and HUDCO. Clause No. 5 of the agreement provided that the Society part of the second part had a right to inspect the premises from time to time on behalf of its member i.e. petitioner herein. Clauses 4, 5, 8 & 11 of the rent agreement are reproduced as under:-
"4.That the party of the third part shall not deal with the party of the First part exclusively. The party of the first part hereby declares and acknowledges that she is indebted to the society and to the Hudco, which liability is being discharged by the party of the second part in account of the party of the first part and, therefore, it has been mutually agreed that the party of the third part shall pay the rent of the premises described above to the party of the second part in account of the party of the first part until all the liabilities are cleared.
5.The party of the second part reserves the right to inspect the premises from time to time and on behalf of its member i.e. the party of the first part. The party of the second part has already provided services like the lifts/common lights and other services i.e. water and the electricity and, therefore, it may become necessary for the party of the second part to inspect the pipelines and other fixtures in the flat and the party of the third part shall permit the presence of the party of the second part.
8.If the party of the third part fails to pay the arrears of rent for more than two months, the party of the second part shall revoke the agreement and the party of the third part shall not have the right to enjoy the tenement, after the termination of the tenancy agreement.
11.That the party of the third part hereby agrees that as the premises to be occupied by him is in the Complex, where members and other occupants are going to live in a co-operative spirit, the party of the third part shall not create any nuisance or mis-use the premises and also undertakes to abide by the rules/bye-laws enforced by the local authorities and any other authorities." (underlining is mine) (4) The reason why I have reproduced some of the clauses of the agreement is to show as to why the Society was made a party in this rent agreement. In fact the supervisory power over the flat, receiving of the rent, providing common facilities, termination of the agreement for any reason actually vested with the Society party of the Second Part till such time the member discharge her financial liabilities. It is in this background that we have to see the Clauses executed in the agreement. Respondent herein accepted vide Clause No. 11 that he would occupy the premises like other members of the society who were going to live in the same. The words "going to live in a cooperative spirit" are very significant. Had the intention been to give the flat for composite purpose and not for residential purposes alone, then this expression would not have been used. The very fact that all the three parties after understanding that the meaning that the members and occupants had taken the flat for living purpose signed the agreement. This respondent was to occupy the flat in this complex like any other member of the Society for the purpose of living. He was living in the flat in a cooperative spirit. Such expression leaves no manner of doubt about the intention of the parties. That the flat was let out to the tenant for occupying the same for residential purpose. This intention can be inferred from the reading of the Rent Note as a whole and in particular Clause 11. It is not always nor is mandatory for the parties to mention in explicit terms that the purpose of letting was residential. Suffice it would be if the intention or the dominant purpose of letting can be inferred from the Clause in the Rent Agreement. Intention of the parties can be based on the expression used in the agreement. Reading of Clause 11, by no stretch of imagination, creates any impression that the premises was let out for composite residential purpose. The very fact that the tenant was to occupy the flat like other members or occupants of the Society and society's bye-laws prohibiting the use of these flats for commercial purpose show that letting was for residential purposes. The word "occupy" as appearing in the Concise Oxford Dictionary means beside in, be the tenant of, placed oneself in". The word "occupy used in Clause 11 of the agreement, therefore, would stand that the respondent/tenant was to reside in this flat. The expression in Clause 11 "where members and other occupants are going to live in a cooperative spirit" clearly indicates that tenant was to reside in this flat and had to be co-operative with other members and occupants of the Society. This is clear pointer to the fact that the drafter of the agreement did not leave anything to chances. It was clearly pointed out to the tenant through Clause 11 that like other members of the Society he has to live in this flat. He was not only to live but had to live in a cooperative spirit. Further he was not to create any nuisance nor mis-use the flat. Since the flat was let out for living purpose hence using it for any other purpose amounted to mis-use of the flat. It has come in the testimony of AW-2 that Azad Apartment Complex is a residential complex. Members and occupants of these flats had to use the same for their residence as per the bye-laws of the Society. The flat in question as per bye-laws of Society meant for residence, therefore, it could not be misused meaning there by that the occupant could only use the lat for residence. He was bound by the rules and bye-laws enforceable by the local authorities and of any other authority as well as of the bye-laws of the Society. No commercial activity as per bye-laws of Society was permissible as per the statement of AW-2 Secretary of the Society. Similar rent agreement were also executed by the Society with other flat owners/members of the Society. Mr.Tekchandani (AW-2) took over as Secretary of this Society in 1989. He, therefore, was competent to say about the bye-laws of the Society and the rules which governed the members and the owner of the flat and also the purpose for which it could be used. AW-2 when subjected to cross-examination clarified that though specifically the words "let out for residential purposes" had not been used in the rent agreement but the purpose of letting could be inferred from the reading of Clause 11 of the agreement. Reading of Clause 11 and other Clauses of the rent agreement made it clear that flat in question could be used only for the residence of the tenant. He was to occupy and live in the same manner as other occupants. Flat could not be used for commercial purpose nor any instances placed on record to show that any other flat had been used for commercial purpose. In the absence of any proof that other flats had been used for composite purpose this part of the statement of RW-1 and RW-2 cannot be relied. Their statement in this regard that in other flats commercial activities were going on, in absence of proof cannot be given any weightage nor can be relied.
(5) Counsel for the respondent's contention that the petitioner appearing as AW-1 admitted that specifically in the agreement the purpose of letting had not been mentioned. To my mind, this submission has no substance. Once the execution of the rent agreement was admitted by the respondent through the testimony of Sh.Balkar Singh, RW-1 and RW-2, nothing was left to be interpreted on the basis of oral testimony. We have to see the terms of the agreement to conclude whether flat was given for residential purposes or residential-cum-commercial purposes. Oral testimony in view of written document has no significance. Appearing as AW-1 she clearly stated that premises was let out for residential purpose. The terms of tenancy were finalised in her absence by her sister Dr.Sudershan Vohra, through her attorney Mr.G.R.Chopra. Dr.Sudershan Vohra appearing as PW-3 testified that Shri G.R.Chopra, Advocate acted as Attorney of the petitioner. He was looking after her affairs with regard to this flat. He signed the rent agreement on her behalf. Mr.G.R.Chopra was authorised by her sister to be petitioner's attorney as she herself was busy. She could not spare enough time to look after petitioner's affairs. Shri Chopra being a relation and an Advocate was considered to be competent to look after the affairs of this flat of the petitioner. After Mr.Chopra became sick PW-3 herself started looking after this case in the Court. She testified that the premises was let out for residential purposes. This had been so indicated in Clause 11 of the tripartite rent agreement. Inspite of her lengthy cross examination no material contradiction could be elicited from the evidence of PW-3. She rather reiterated that flats in Azad Apartment complex are meant to be used for residential purposes only. Supply of domestic electricity also indicate that every holder of a flat has to use it for his residence i.e. living purpose. In case anyone misuses the flat Society would initiate action. She denied that in the rent agreement the purpose of letting was residential-cum-commercial.
(6) Perusal of the record reveals that the respondent Shri Sulekh Chand Jain did not care to examine himself. Instead he examined one Balkar Singh (RW-1) and Harish Kumar Sharma (his power of attorney holder) as RW-2. RW-1 tried to explain that flat owners have been using the flat for composite purpose. Except this bald statement he could not produce any documentary evidence to prove this fact nor gave the flat numbers which had been used for composite purpose. According to RW-1 respondent had been using the flat for composite purpose i.e. for living and for selling tapes. Testimony of RW-1 on this aspect cannot be relied. He tried to set up a new ground of selling tapes. In the written statement respondent had taken the plea that he was running the business of assembling and repairing electric items. Whereas RW-1 with a zeal to support the case of the respondent took the plea that respondent was selling tapes from this flat. This version of the RW-1 is in variance with plea in the written statement hence cannot be relied nor accepted. The story of selling tapes appears to be the brain wave of RW-1 not supported by any documentary evidence nor in the written statement hence has to be discarded. The respondent never stepped into the witness box to prove that he was running the business of assembling and repairing electric items. In the absence of any one proving the same, it can safely be concluded that respondent was not doing this business in this flat. Shri Harish Kumar Sharma, RW-2 stated that the respondent was running the business of video, cassettes in this flat, the same is contrary to the stand taken by the respondent himself in the written statement, hence no reliance can be placed on the same. It is fully established from the testimonies of Balkar Singh, RW-1 and Shri H.K.Sharma, RW-2 that the respondent with his family had been residing in the premises in question. Since the version given by RW-1 & 2 that premises was used for commercial purposes being tainted with bias and not substantiated with in any manner hence could not be relied upon. From the above discussion it can safely be concluded that the flat in question was let out to the respondent for residential purpose i.e. for living. Respondent was put to notice through Clause 11 of the rent agreement that in case of violation of the use of the premises it would be treated as misuse and action follow. As per RW-1 Balkar Singh's own showing he signed this rent agreement but the fact that the premises was let out for residential-cum-commercial purposes, he could not prove either from the reading of the clauses of the agreement or from any other document. Oral testimony in view of written document cannot be relied. Hence the testimony of RW-1 and RW-2 cannot be relied.
(7) No documentary evidence has been produced by Balkar Singh, RW-1 to refute the statement of Shri U.S.Tekchandani (AW-2) Secretary of the Society to the effect that the flat in this complex as per the bye-laws of the Society could only be used for residential purpose. Had it not been so there was no need to mention in Clause 11 that the tenant would not misuse the premises and that he would abide by the rules/bye-laws enforced by the local authorities. As per AW-2, the land underneath the flat was on lease from the DDA. Since the Dda leased out this land for building houses for the members of the Society and as per terms of the lease this complex was to be used for residential purpose. Since it was to be used for residence only that is why in Clause 11 it was mentioned that flat had to be used for living purpose. It could not be misused by the occupant/respondent. It was nobody's case that Dda allotted this land to the Society for building commercial complex. It is well settled principle of law that the Court can make such inferences regarding the purpose of letting from the surrounding circumstances at the time of letting particularly the physical nature of the premises, area where the property is situated, terms and conditions of the lease deed under which the landlord had obtained the plot for construction of the building. Keeping this principle in mind, from the reading of RW-2's statement who was Secretary of the Society, it becomes clear that Society obtained the land underneath these flats from Dda for building residential complex. According to AW-2 the flats were to be used for residential purposes only. It was so incorporated in the bye-laws of the Society. Accordingly, in Clause 11 of the rent agreement it was explicitly mentioned that the occupant would use it for living purpose. In this view of the matter, we need not look further to find out the purpose of letting. The observation of the learned Arc that purpose of letting was composite thus cannot be sustained. Since the conclusion of the learned Arc is not based on facts available on record hence set aside. It is held that petition under Section 14(1)(e) of the Act was maintainable.
(8) Turning to the second point raised that the respondent/tenant from the very inception of this tenancy had been using the premises for commercial purposes or that the landlady acquiescence the same, this reasoning of the Trial Court is contrary to the record. Firstly, per the terms of allotment of land to the Society by the D.D.A. as well as per the term of rent agreement fortified by the testimony of AW-2, petitioner proved on record that respondent did not use the premises for commercial purpose from the inception of tenancy. Nor she gave any consent for the same. In fact Society was to collect the rent from the respondent. Since the tenant misused the flat, it was for the Society to take action. The petitioner was residing in London since 1986. She could not know when the respondent started misusing the premises. She, however, gave authority to her sister Dr.Sudershan Vohra, PW-3, to look after her house. Dr.Sudershan Vohra appearing as PW-3 stated that she came to know only on 11th August, 1988, from the letter of the Society that the respondent started misusing the premises. On acquiring this information she lodged a protest with the respondent Similarly, the Society through its Secretary Mr.U.S.Tekchandani, AW-2 in no uncertain words told the respondent to stop the misuse. In fact as per the terms of the agreement since it was for the Society to collect rent and supervise the flats, therefore, Society was to lodge the protest of the misuse. Consequently, the Society on receiving the information that this respondent was misusing the flat, asked him to stop the same. Written notice was also sent to the respondent which was proved on record as Exhibit `AX'. AW-2, Secretary of the Society also asked the respondent in the year 1989 to stop the misuse. On this part of his testimony no question was asked. This part of his testimony could not be dislodged. Evidence on record show that the petitioner through her sister and the Society (party of the second part) objected to the misuse of the premises by the respondent. Therefore, it would be wrong to say that the petitioner acquiescenced the misuser or did not protest or that the respondent had been using the flat for commercial purpose from the inception of tenancy.
(9) The respondent never stepped into the witness box nor denied the receipt of notice issued by the Society asking him to stop the misuse of the premises. Hence the version given by AW-2 that beside asking verbally the respondent was also asked in writing to stop the misuse as the same was against the bye-laws of the Society, never permitted the flat to be used for any other purpose than residential. In these circumstances the petitioner did what a prudent person could do i.e. to ask the tenant to stop the commercial activity. She testified that premises was not used for commercial purpose from its inception and to support the same petitioner relied on the testimony of RW-2, Harish Kumar Sharma attorney of the respondent. He could not deny the suggestion that while taking loan from the Bank respondent represented that he was carrying on business at Sona Apartments only. This part of RW-2 testimony would show that respondent did not start his business in the premises in question from the inception of this tenancy. RW-2 also could not deny the fact that since 1988 the Society had been writing letters to the respondent to stop commercial activity as it violated the terms of the allotment and bye-laws of the Society. In this view of the matter it cannot be said that the petitioner acquiescence the misuse of the premises by the respondent nor the petitioner or for that matter the Society acquiescence or consented for the premises to be used for any other purpose than residence. PW-3 stated that as soon as she came to know about the respondent started using the premises for commercial purpose, she lodged the protest. The Society, the party to the rent agreement also lodged verbal as well as written protest of the misuser of the premises by the respondent. From the facts of this case, even implied consent of the landlord cannot be inferred. It is in the testimony of respondent's own witness he along with his family had been residing in the premises in question. Even for the sake of arguments if it is presumed that the respondent sells tapes from this premises that would be only an incidental use of a residential premises. Such an incidental use without the consent of the landlord would not take this case out of the expression "residential premises". None of the witnesses appearing on behalf of the respondent stated that the respondent was doing repairing or assembling electric item work in the premises. Since the respondent with his family is residing in the flat, the predominant purpose could be nothing but residential. This conclusion is based on the testimony of RW-2 Mr.H.K.Sharma when he could not deny that at the time of taking loan from the Bank, the respondent represented that he was carrying his business only in Sona Apartment. This shows respondent had not been running his business in the flat in question.
(10) MR.UPADHYAY'S contention that in the petition letting purpose was not specifically mentioned hence the petition be dismissed. This argument is without force. The object of the pleading is to ascertain material facts in issue. It is for the guidance of the parties and the Court. The pleadings are not to be construed too strictly, narrowly or pedantically, particularly when a document is referred to and relied upon in the petition itself. In this case in para 14 it was specifically mentioned that the premises was let out vide rent note dated 10th February, 1980 : Copy of the same was attached. The contents of that document formed part of the pleading. It could be looked into and relied upon. This rent note has been accepted by the respondent through his witnesses RW-1 & RW-2. Therefore, now it does not lie in the mouth of the respondent to contend that the letting purpose was not specifically pleaded in the petition. Once the rent agreement formed part of the petition which contained all the ingredients required to be proved to success in a petition under Section 14(1)(e) of the Act, hence it cannot be said that the purpose of letting has not been mentioned in the petition.
(11) Finally the observation of the learned Arc that since the petitioner was permanently settled in London, therefore, did not require the premises bonafide. This conclusion is belied from the original passport produced by the petitioner in Court, copy of which had already been placed on record. From the perusal of the original passport it is clear that she came back to India in November, 1993 and since then never left India. This petition was filed in February, 1990 and since November, 1993 she has not stepped out of India, therefore, it could not be said that she had no intention to live in India or to occupy her house or that her need was not bonafide. It can also not be said that to settle in Delhi near her kith & kin in the evening of her life was a whimsical or fanciful desire. In fact this Court in the case of T.D.Dhingra V. Pritam Rai Khanna , while dealing with almost identical facts observed that an Indian who acquired foreign citizenship could not be disentitled to enjoy his own property in India, when he chooses to return to India. In that case passport of the landlord has brought in the Court. It showed that he had ever since 1988 been staying in India. The proceedings for eviction in that case were originally initiated in the year 1982 and since 1988 he settled in India. Taking the last entry in the passport which was of the year 1988 this Court observed that the need of the landlord was bonafide. It was also further observed that even if he had acquired foreign citizenship that made no difference. In the case in hand, the petitioner has not acquired British citizenship. She is still an Indian. The passport produced by her in the Court showed that ever since November, 1993 she has been residing in India. She first came to India in 1982 expecting that on the expiry of the lease the respondent would vacate the premises and she would permanently settle in India. But when the respondent did not vacate she had to go back. Thereafter, the passport entries showed that she had been coming quite often to India. According to her, this was with the intention to settle in India. Now since November, 1993 she has been staying in India. In this backdrop it cannot be said that her need was not bonafide or that she did not require the premises for her residence. She placed on record the certificate issued by her employer showing that she took premature retirement from the Department of Health. London, dated 19th October, 1993. There is another certificate produced by the petitioner of the Acupuncture and Medical Clinic certifying that she had been suffering from arthrIT is of the right shoulder and right knee. That she was affected by the cold climate of London and had to move to a warmer climate. It has also come on record that she was in the age group of 56-57 years in October, 1993. Her age as given by her sister PW-3 at the relevant time was 56-57 years. Now she is about 60 years old. She being a single woman if desires to be close to her relations like mother, sister and brother, who, are residing in Delhi her desire cannot be questioned. Her desire to settle down in her own house and to be close to her relations in the evening of her life cannot be called malafide or whimsical.
(12) Lastly Mr.Upadhyay's objection about the maintainability of this petition as the petitioner has also filed a civil suit for ejectment. According to him two proceedings cannot continue simultaneously. Mr.C.L.Sachdeva appearing for the petitioner refuting this argument contended that filing of two different set of proceedings, one under the unamended Act and other after the amendment of the Rent Act of 1988 would not disentitle the petitioner from the order of eviction. In this regard he placed reliance on the decision of Division Bench of this Court in the case of M/s New United Automobiles Vs. Cycle Equipments Pvt. Ltd. baring R.F.A. No. 94/96 decided on 10th May, 1996. There while dealing with a case under the provisions of Section 14(1)(j) & (k) of the Act a question arose whether a Civil Suit would be barred under Section 50 of the Rent Act because landlord had earlier filed two eviction petitions under the Rent Act and those proceedings still being pending. There also the objection taken was that simultaneous and parallel proceedings before the Rent Controller and the Civil Court were not maintainable. Answering the question in the negative, the Division Bench observed:- "LEARNED counsel for the appellant has not shown any principle of law or precedent that because the proceedings before the Rent Controller were already pending the present suit cannot be instituted. In our view if any proceeding is covered by the Delhi Rent Control Act the successive proceedings for eviction of any tenant therefrom could be filed before the Rent Controller as and when new cause of action arise in favour of the landlord under Section 14 of the Act and after the Rent Act has ceased to apply we find no valid reason why a civil suit for possession could not be validly instituted under the general law.
(13) In view of the above observation. The objection of Mr.Upadhyay has no force. In the case in hand respondent was paying rent at the rate of Rs. 3,300.00 per month when the eviction petition under the Rent Act was filed. Thereafter the rent was enhanced to Rs. 3,630.00 per month. Hence as per the provisions of Delhi Rent Control Act as amended by the Amending Act of 1988 the Act was not to apply to the premises where rent was Rs. 3,500.00 or more per month. In this case since rent had crossed Rs. 3,500.00 per month hence Rent Act ceased to apply. The petitioner therefore, filed suit for possession. By mere filing a civil suit, the validly instituted petition under the Rent Act which prior to enhancement of the rent was applicable would not bar the proceedings. Relying on the decision of the Division Bench of this Court I find no merit in the contention of Mr.Upadhyay on this count.
(14) For the reasons stated above, I find that the impugned order suffered from infirmities. It erroneously interpreted Clause 11 of the agreement as well as the evidence of the parties, hence cannot be sustained. The same is accordingly set aside. Order of eviction is hereby passed against the respondent under Section 14(1)(e) of the Act, thereby giving six months time to the respondent to vacate the tenanted premises bearing No.A-1/62, Azad Apartment, Aurobindo Marg, New Delhi.