Delhi High Court
Kuldeep Raj vs Yash Pal on 14 December, 1995
Equivalent citations: 1996RLR97
Author: Arm Kumar
Bench: Arm Kumar
JUDGMENT Arm Kumar, J.
(1) Rent Control Act (the Act), seeking an order of eviction against the respondent who is a tenant under the petitioner with respect to ground floor of property bearing No. 242, Double Storey, New Rajinder Nagar, New Delhi.
(2) According to the landlord he is the owner of the premises and the same was let to the respondent for residential purposes. The petitioner landlord has no other reasonably suitable residential accommodation particularly in view of the fact that ground floor residential accommodation is required by the landlord for his only son Suneel Kapoor. The said son of the landlord is suffering from Post Polio Residual Paralysis of left lower and right upper limb resulting in weakness and deformity and hunchback. He has a permanent disability described as 60% disability. The said son requires to stay in a ground floor accommodation. The premises where presently the landlord is residing is on the first floor for which the said son has to climb 16 stairs. The said son was aged 45 years at the time of institution of the eviction petition in Sept. 1992. He has a wife and two children (3) The respondent tenant applied for leave to contest the eviction petition. He mainly raised the following defenses :- 1. The petitioner is not the owner of the suit premises ; 2. The premises was taken on rent by the respondent for residential-cum- commercial purposes and that the respondent has been carrying on business from the suit premises which is well within the knowledge of the landlord ; 3, The requirements of the suit premises on account of the disability of the son of the petitioner was denied. It was stated that the said son of the petitioner is disabled since birth and he had no difficulty in performing his routine work so much so that he was driving a car himself.
(4) The Arc considered all these defenses raised by the tenant and granted leave to contest the eviction petition vide impugned order dated 14.3.95 mainly on the ground (hat the question of letting of the premises for residential-cum-commercial purpose and the question of disability of the petitioner's son required to be gone into in evidence. Therefore, leave to contest the eviction petition was granted.
(5) The petitioner landlord has challenged the said order in the present petition. It is submitted that both the points on which leave to contest had been granted do not require any evidence. Before coming to these points I may only note about the question of ownership of the suit premises raised by the tenant by his denial of the ownership of the petitioner of the suit premises. Admittedly the petitioner is one of he co-owners of the suit premises and as such as per the settled law he alone can institute an eviction petition under Section 14(1)(e) of the Act. Moreover the petitioner has placed certified copy of the order of this court in Suit No. 1456-1/81, decided on 24th May 1982 wherein the petitioner was held to be the owner of the property in suit. Therefore, the dispute regarding ownership raised by the respondent tenant has no merit at all.
(6) Now coming to the question of premises being let for residential-cum-commercial purposes the plea of the tenant is that he had taken the premises on rent for residential-cum- commercial purposes and since the inception of the tenancy he has been using premises for the composite purpose. The alleged commercial use of the premises is stated to be for purposes of supply of goods on order. The nature of supply business itself is such that it does not convert the premises into a commercial premises as such because the orders etc. are received generally by post or on telephone and the orders are executed outside the premises. In this context it is to be noted that respondent was in Govt. service being employed with the Ministry of defense. As a Govt. servant he was not entitled to do any private business. The dominant use of the premises remained residential because the respondent was admittedly residing in the suit property. The nature of accommodation involved is such that it cannot be said to be a commercial premises. The property is located in a predominantly residential area. As per the ingredients of S. 14(l)(e) requirement is that premises should be let for residential purpose. If the tenant subsequently starts using the premises for commercial purpose incidentally without the consent of the landlord that will not change the letting purpose from residential to commercial. Learned counsel for the respondent emphasised the fact that the respondent had obtained sales tax registration numbers with the address of the suit premises but that does not in any manner mean that the landlord had consented to the use of the premises for commercial purposes. As already stated firstly use of residential premises for supply of articles as per orders received by post or other means can hardly be said to be use of the premises for commercial purpose. Secondly, in such cases as a matter of fact the landlord may not even know that the tenant is using the suit property for any such purpose. The landlord as in the present case is not residing in the suit property. Even if in a given case the landlord may be residing in the same property he is not supposed to intercept the mail of the tenant. There is no document placed on record by either party which may throw light on this controversy. In these circumstances I am unable to persuade myself to take a view that the leave to contest the eviction petition ought to be granted on the plea of the tenant that the property was let for residential-cum-commercial purpose. The most important fact which goes against the tenant in this behalf is that he was in Govt. service at the time of letting out of the premises and thereafter and he was not entitled to carry on any business.
(7) Coming to the second point about disability of the son of the petitioner, the tenant himself stated in the application for leave to contest filed by him that the son of the petitioner is polio stricken right from birth. The landlord has, besides stating the facts about disability of his son, placed on record a copy of the medical certificate issued by the L.N.J.P. Hospital in this connection. The son of the petitioner landlord was present in court. A bare look at him confirmed his disability. The disability increases with the advance in age. It is a fact which requires no evidence. He is above 45 years in age. The landlord says that it is becoming increasingly difficult for his son to climb the sixteen stairs which he has to do to reach the first floor accommodation where he is presently residing Along with his father. By putting the case for trial on the basis of such flimsy plea of the tenant it only means contributing to the suffering of a disabled person. In the process of recording evidence years will go by and the disabled person will continue to suffer. In the face of such facts I do not think that the disability of the petitioner's son requires to be gone into by way of evidence specially when the tenant himself admits that the son of the tenant is polio stricken from birth. So far as a car being driven by the son of the petitioner is concerned, it is to be noted that he drives a car specially designed for handicapped persons by the Maruti Udyog Ltd. The present is thus not a case of grant of leave to contest the eviction petition. The impugned order of the Arc is set aside and application of the tenant for leave to contest the eviction petition is dismissed.