Delhi District Court
Laxman Singh(Since Deceased) vs Sh. Kailash( Statutory Tenant) on 24 April, 2014
IN THE COURT OF SH. SUMIT DASS, SENIOR CIVIL JUDGE CUM RENT
CONTROLLER (NORTH), ROHINI COURTS, DELHI
E-35/2009.
1. Laxman Singh(since deceased)
Through LRS
(a)Dr. Devender Singh
S/o Lt. Sh. Laxman Singh
(b)Sh. Ravinder Kumar
S/o Lt. Sh. Laxman Singh
(c)Sh. Rajinder Singh
S/o Lt. Sh. Laxman Singh
(d) Sh. Surender Singh
S/o Lt. Sh. Laxman Singh
All Residents of
72, Raj Pura Gurmandi,
Delhi-110007. ... Petitioners
Versus
1. Sh. Kailash( Statutory tenant)
S/o Lt. Sh. Badri Prasad
R/o 4/55, Roop Nagar,
Delhi-110007.
2. Sh. Girdhari Lal(sub tenant)
E35/2009 1 of 21
S/o Lt. Sh. Madan Lal
3. Shri Ram(sub tenant)
S/o Lt. Sh. Madan Lal (Sub tenant)
4. Sh. Shyam (Sub tenant)
S/o Lt. Sh. Madan Lal
5. Sh. Lalu Prasad (Sub tenant)
S/o Lt. Sh. Madan Lal
All Residents of :
71, Raj Plura,
Gur Mandi, Delhi-110007.
6.Sh. Kishore
S/o Lt. Sh. Rameshwar Prasad
7. Sh. Ashok
S/o Lt. Sh. Rameshwar Prasad
Both Residents of :
105, Rajpura Village,
Gur Mandi, Delhi-110007. ... Respondents
Date of Institution : 22.11.1996.
Date of Arguments : 17.04.2014.
Date of Judgment : 24.04.2014
SUIT FOR EVICTION OF TENANT U/S 14(1)(e) 25(B), 14(i)(b)(c)(d)(f)(h)(k).
JUDGMENT:
1. By the present judgment an 18 year old eviction petition, filed under the Delhi Rent Control Act [hereinafter 'DRC Act'] inter-alia, on the grounds of bona fide E35/2009 2 of 21 requirement of the landlord, acquisition of other vacant premises by the tenant & creation of unlawful sub-tenancy - is being decided.
PETITIONER'S CASE
2. The case of the petitioner as can be culled out from his pleadings:
2.1 This case concerns premises No.71, Rajpur Village, Gurmandi, Delhi -
110007 [hereinafter ' suit premises'] , which the landlord Sh.Laxman Singh had given on tenancy to three brothers Shri Rameshwar, Madan Lal & Badri Prasad for residential purposes in the year 1971 at a monthly rent of Rs.100 PM. It is the petitioner's case that the tenancy rights were later surrendered by Sh.Madan Lal and Sh.Rameshwar in favour of Sh.Badri Prasad and ever since Sh.Badri Prasad has been the sole tenant in the premises and paying rent of the property. It is the petitioner's case that the said Badri Prasad acquired another house during his lifetime and shifted there. The petitioner states that for this reason, vide notice dated 16.03.1989 the tenancy in favour of Badri Prasad was terminated, and a notice to that effect was also issued to illegal occupiers (respondent no.2 to 8) who occupied the suit premises. It is interesting to note that the alleged sub-tenants/unauthorized occupants are none but original tenant Sh.Rameshwar, his legal heirs and legal heirs of deceased Sh.Madan Lal. For better appreciation, the following family geneology chart of the tenant can be referred to :-
Figure 1.1 RESPONDENT'S FAMILY TREE E35/2009 3 of 21 2.2 It is the petitioner's case that consequent to the surrender of tenancy by Sh.Rameshwar and Sh.Madan Lal in favour of Sh.Badri Prasad, on Badri Prasad's Death his son Mr.Kailash (respondent no.1) became the sole statutory tenant, and therefore Sh.Rameshwar and Sh.Madan Lal and their legal heirs had no right to possess the property and therefore became unauthorized occupants, and since Sh.Badri Prasad's son i.e Respondent No.1 parted with his possession or allowed them to occupy the suit property, it constituted under the DRC Act a subtenancy/wrongful assignment of interest or illegal parting of possession of property, which is a ground for eviction under the DRC Act. Subtenancy therefore is the first ground of eviction being invoked by the petitioner.
(S.14(1)(b) DRC) E35/2009 4 of 21 2.3 It is the petitioner's case that the said Badri Prasad died on 7 th Feb, 1996 leaving behind Sh.Kailash/respondent no.1 as his legal heir, who became the statutory tenant in respect of premises. It is also the case of the of the petitioner that since respondent No.1 Kailash was financially independent, by virtue of explanation II to Section 2(l) of the Delhi Rent Control Act, the tenancy trickled down to him as a statutory tenant, albeit for a limited period of one year, after which his right to possess the suit property extinguished. In any case the petitioner avers, the said respondent no.1 has already given the possession of the property to respondent nos 2 to 8 (illegal tresspassers). Hence the Second ground is of tenancy of Respondent No.1 has automatically been extinguished on passage of one year of the death of the primary tenant Late Sh.Badri Prasad. (S.2(l) Expln. II - Delhi Rent Control Act) 2.4 The petitioner states that the only statutory tenant i.e Respondent No.1 in any case has acquired a separate premises in Roop Nagar (4/55, Roop Nagar, Delhi) and has shifted there about 6 months from filing of the petition, he is also liable to be evicted on the ground of having abandoned the premises (S.14(1)(d) & S.14(1)(h) of the DRC) 2.5 The petitioner further states that although the premises was let out to the three brothers solely for residential purposes, respondent nos 2 to 8, who are trespassers are currently misusing the premises for keeping cows and cow dung, and therefore creating unhealthy conditions posing a health hazard for people in the locality, particularly the petitioner's family as they are living in the adjoining premises only. Hence misuser of tenanted premises and resultant public nuisance has also been pleaded as a ground for eviction. (S.14(1)(c) of the DRC) 2.6 The petitioner has also sought to base his eviction petition on the ground of bona fide requirement of the premises. He states that he is the owner of the property and has four sons, of which three are living with him. The eldest son Mr.Davender is married E35/2009 5 of 21 and has two sons, one of whom is of marriageable age. The younger son Ravinder Kumar is married with two kids. Another Son Rajinder is also married with two children. The Youngest Son Surinder is doing business of a electric shop in his portion of the residence. It is the petitioner's case that in light of growing needs of his family, he needs a bigger more accommodation. Hence the petitioner pleads Bona fide requirement of the premises for his family's needs. (S.14(1)(e) of the DRC).
RESPONDENT'S CASE
3. In response - the respondents have presented a completely different picture, their defence qua each ground of eviction raised by the petitioner, is summarised as under :-
3.1 The respondents have stated that it is wrong to suggest that the premises were let out to three brothers Sh.Rameshwar,Madan Lal & Sh.Badri Prasad and later surrendered by the former two in favour of the latter. Infact the ancestor of the respondents Sh.Babu Lal (see Family Geneology Chart relied upon by them/Figure 1.2) was the original tenant with respect to the demised premises vide a Rent Note dated 5.11.1938. The premises comprised of a 'Khapr ail' & one ' Chappar' which was taken on rent for residential/cum commercial purposes, who started using the same for said purpose. It is stated that said Sh.Babu Lal died in year 1948/49, leaving behind eight sons and 4 daughters, and as such on his death, the tenancy being a commercial one, devolved on his legal heirs in equal respects. After the death of said Sh.Babu Lal rent receipts were issued in the name of three sons Sh.Rameshwar/Madan Lal & Sh.Badri Prasad and later in the name of son Sh.Badri Prasad and not all the 12 persons, for the sake of convenience. However all the 8 brothers were carrying on business and residing in the suit premises alongwith their families. Hence all the present respondents are tenants to the suit property and not illegal occupants.
3.2 As regards the contention of misuse the respondents have claimed that the premises were let out for residential cum commercial purposes (Diary Business) which E35/2009 6 of 21 can be seen from the Rent Note executed way back in 1938 in their ancestor's favour, and is being used as such. Hence there is no question of a misuser. Furthermore no notice of misuser has been given which is a mandatory requirement of DRC Act. 3.3 As regards the question of abandonment of premises the respondents have claimed that all the respondents & their families are in occupation of the premises. The respondents have not acquired/built any other house and even for the sake argument if they have - the ground is applicable only qua premises let out exclusively for residential purposes and not for premises leased out for commercial purposes or residential cum commercial purposes.
3.4 As regards the question of the premises being required bona fide for the petitioner's family - it is stated that the sons of the petitioner are not dependant on him at all, and well settled in life. Furthermore the petitioner owns the following premises, apart from the suit property :-
a)House No. 2/26, Roop Nagar, Delhi
b)House No. 3/62, Roop Nagar, Delhi
c)House no. 72, Village Rajpura, Delhi
d)House No. 176, Village Rajpura, Delhi.
Therefore the petitioner does not require the property for his family's needs at all.
4. In his replication the petitioner substantially reiterated his case and stated :-
4.1 He has denied the execution of a Rent Note in favour of Late Sh.Babu Lal for the purposes of a Diary Business in 1938.
4.2 With respect to the properties alleged to be owned by him, The petitioner states that he owns no property but the one adjoining to the suit premises i.e House No.72, Village Rajpura, Delhi, where he is residing with his wife, sons and their family members. House E35/2009 7 of 21 No. 2/26, Roop Nagar is owned by his sons and used for commercial purposes. As regards Premises No. 3/62 it is stated by owned by the sons of the petitioner occupied by tenants. House No. 176 Village Rajpura is stated to be owned by sons and a completely commercial premises, not capable of being used for residential purposes. The petitioner conceded that his sons were financially independent however dependant on the petitioner for their residential needs. Furthermore since the suit property is adjacent to their own House No.72 and is required and would serve well as their residence, especially in light of status of his sons.
5. After completion of pleadings in 1997, the matter was put up for PE. It is apparent that the petitioner in order to be entitled to eviction had to prove the following :-
a)Issue of Sub-Tenancy (S.14(1)(b) DRC)
i)By proving the surrender of tenancy in favour of Sh.Badri Prasad by Sh.Rameshwar and Late Sh.Madan Lal.
ii)Parting with possession/creation of subtenancy of the premises illegally in favour of respondent nos 2 to 8; S.14(1)(e) DRC.
b)Acquisition of own residential premises by Respondent No.1 and abandonment of the demised Premises; (S.14(1)(d) & S.14(1)(h) of the DRC)
c)Misuse of premises and creation of nuisance; (S.14(1)(c) of the DRC)
d)The premises being required bona fide for his family (S.14(1)(e) of the DRC).
PETITIONER EVIDENCE
6. In order to prove it's case the petitioner examined 3 witnesses :-
•AW-1 was Mr.Surender Singh from the Delhi Jal Board. He had come to depose that a Water Connection installed at the suit premises was sanctioned in the name of Sh.Badri E35/2009 8 of 21 Prasad in 9.4.1971. By this the petitioner seeks to prove the surrender of tenancy in favour of Badri Prasad.
•AW-2 Sh.Devender Singh, son of the petitioner & power of attorney holder (Ex.AW 2/1), deposed on the same lines as the petition. He reiterated the factum of inducting Sh.Badri Prasad, Sh.Madan Lal and Sh.Rameshwar as tenant in the year 1971 @ monthly rent of Rs.100 per month pursuant to an oral agreement.
He also deposed that the latter two later surrendered the tenancy in favour of the former in June, 1978, and the former was regularly paying rent of the property and getting rent receipts issued in his favour till 1994. Copies of Rent Receipts were exhibited in evidence as Ex.AW 2/3 to Ex.AW 2/34. (OSR). AW 2 further deposed that said Sh.Badri Nath expired on 7.02.1996 leaving behind the respondent No.1 as his only legal heir who became statutory tenant. The petitioner further states that the tenancy of Sh. Badri Prasad was terminated within his lifetime as he had acquired another premises on 16.3.89 by way of a legal notice Ex.AW -2/35. Separate legal notices were also issued to Smt.Choti Madan, wife of Sh.Madan Lal, mother of respondents nos 2 to 5 & also Sh.Rameshwar, asking them to vacate the premises as they had no right to reside in the same, which were relied on as Ex.AW -2/36 & Ex.AW -2/37. The said notices were replied to by all the three Ex.AW -2/50 to 52. AW 2 further reiterated the plea of acquisition of a house No. 4/55, Roop Nagar by Respondent No.1. AW 2 further deposed that the suit premises are required bona fide for the family which consists of four married sons, six grandsons and granddaughters, one grandson also being married and other of marriageable age. The Elder Son of the petitioner is working as Lecturer. AW 2 also stated that the petitioner has no other alternative accommodation than the suit premises.
•One Mr.Arjun Singh, Record Keeper, House Tax was examined as AW3, who deposed that property bearing No. 4/55, Roop Nagar, Delhi as per their records was assessed in the name of Kailash Chand Yadav (Respondent No.1).
E35/2009 9 of 21 RESPONDENT EVIDENCE
7. The respondent in order to prove its case examined the following witnesses :-
7.1 Respondent No.3 Mr.Girdhari Lal entered the witness box himself as RW1 and reiterated the defence version that the premises was given on rent to Sh.Babu Lal in 1938. Mark 'A' is the photocopy of excerpts from the diary of a petition writer, which was maintained by him in course of his daily duties, which makes a mention of factum of creation of tenancy and purpose of creation of such tenancy in 1938. (Document being in Urdu - translation in English was filed) RW1 also testified that on his death Sh.Babu Lal left behind eight sons and four daughters who succeeded to the tenancy of Late Sh.Babu Lal. RW 1 denied that the tenancy was instituted in 1971 in favour of Sh.Rameshwar. Sh.Madan Lal & Sh.Badri Prasad, which was later given up by the former two in favour of the latter. Infact the whole bunch of 12 children of Babu Lal inherited the tenancy. After the death Sh.Madan Lal and Badri Prasad, their children inherited the tenancy.
i)Ex. AW2-R1 was relied upon by RW 1 - which purports to be Rent Receipt in favour of Late Sh.Madan Lal, Sh.Rameshwar & Sh.Badri Prasad executed on 5.6.1971.
ii)Ex.RW 1/1 - is the birth certificate of Sh.Madan Lal dating back to 30.12.1944, in which the residence is given as Village Rajpura. Vide this document RW 1 seeks to corroborate the creation of tenancy in 1938 and not 1971 as is the version of the petitioner by attempting to prove that Sh.Madan Lal was born in the demised premises only.
E35/2009 10 of 21
iii)Ex.RW 1/2 to RW 1/7 - are some receipts in the name of Sh.Madan Lal reflecting the payment of tax on carrying on of business as 'Milkman' from the demised premises from 1964 onwards.
iv)Ex.RW 1/8 to Ex.RW 1/11 - are the copies of Ration Cards of the sons of Sh.Madan Lal, which shows them to be residing at the suit premises alongwith their families. Ex. RW 1/19 to Ex. RW 1/23 are copies of ration/voter ID cards issued to Sh.Rameshwar, his sons Ashok Kumar & Sh.Kishore Kumar (respondents) showing the rented premises as their address.
v)Ex. RW 1/12 to RW 1/18 - are receipts of tax paid to the MCD with respect to selling of milk in the name of Sh.Badri Prasad s/o Late Sh.Badri Prasad.
vi)Ex.RW 1/25 to Ex.RW 1/27 are the copies of judicial record (plaint/WS & Order of dismissal) in a civil suit (suit for permanent injunction filed by present petitioner against respondent no 1's father Late Sh.Badri Prasad and Respondent No.3 Sh.Girdhari Lal) previously instituted between the parties where RW 1 took the defence of being a tenant.
Such suit was later dismissed for default.
•Respondent No.4 Sh.Shyam Lal also entered the witness box as RW 2 reiterating the broad line of defence of the respondents and his statement is almost verbatim to that of RW1.
Evidence of the parties was closed vide order 28.02.2011 and matter was listed for final arguments since then.
Arguments have been heard on 17.04.2014. Ld. counsel for the petitioner has filed written synopsis. The same has also been considered.
FINDINGS E35/2009 11 of 21
8. After a careful perusal of the record and submissions made by the parties. The following are my findings vis-à-vis the primary issues in the case as adumbrated above in para 5:-
8.1 Issue of Surrender of Tenancy in favour Sh.Badri Prasad & Creation of Sub-
Tenancy in favour of Respondents 2 to 8.
The entire argument of respondent no 2 to 8 being in unauthorized possession/trespassers or subtenants in the property, is premised on the fact that the premises were surrendered by Sh.Rameshwar, Sh.Madan Lal in favour of Sh.Badri Prasad, on whose death his son i.e Respondent No.1 succeeded to the tenancy, who can now be evicted since he let his uncles/their children (Respondent 2 to 8) to occupy the property and therefore is amenable to eviction on the grounds of subtenancy etc. as laid down in (S.14(1)(b) DRC).
I am of the opinion that for the following reasons, that the petitioner has not been able to prove factum of surrender of tenancy.
At the very outset and without entering the controversy on whether the tenancy was entered into in 1971 with the Rameshwar, Madan Lal & Badri Prasad or their father Sh.Babu Lal in 1938/excluding the said aspect from the zone of consideration. In any case it seems to be a very old tenancy, there are receipts of challans issued by MCD from the year 1964 in the name of Sh.Madan Lal with respect to carrying out activities of 'Milk Diary' (Ex. RW 1/2 to 1/7) in the suit property. These challans do raise an inference of milk diary work being carried out from the premises since then.
It is not disputed that after 1978 rent receipts were issued in the name of Sh.Badri Prasad. Now what is to be seen next is whether by the mere fact of rent receipts being issued in name of Badri Prasad, Rameshwar & Madan Lal or their legal heirs could be said to have surrendered their tenancy in favour of the Badri Prasad.
In this regard the law is quite clear that - Surrender of tenancy can be express or implied as per Section 111 of the Transfer of Property Act. In the present case there is no E35/2009 12 of 21 dispute that express surrender is lacking and in my view there is no implied surrender either. The petitioner is claiming that the issue of rent receipts in the name of Badri Prasad, and no demur on the part of other respondents constitutes surrender of tenancy by respondents in favour of Badri Prasad. In my view the mere fact that rent receipts were issued in favour of one tenant of many, by itself does not establish the surrender of tenancy especially in a case where respondents and their fathers have been shown to be residing and carrying on the business in the suit premises as Milkmen for several years by preponderating evidence. Such intention to surrender a valuable tenancy where the entire family has been traditionally carrying on work of milkmen cannot be lightly presumed. The situation would have been different if on the alleged surrender in 1978 the respondents would have been shown to have moved out of the premises, thereby reflecting an intention to surrender their tenancy rights. Here their continued occupation of the suit premises alongwith their families is adequately shown by Ration Cards/Voter ID Cards issued at the demised address. Furthermore in my opinion in any case the respondent no.1 never parted with possession of the property - the possession it seems always remained with the members of this family (respondent nos 2 to 8). It is not that some stranger has been inducted in possession by the respondent no.1, these people have always lived in the premises and, whichever way one looks at the facts, cannot be said to be ' subtenants' or 'unauth orised occupants' as surrender of tenancy by Sh.Rameshwar and Sh.Madan Lal has not been established.
To counter this - The Learned Counsel for the Petitioner has strenuously relied on the cross examination of RW 2 Sh.Shyam Lal(Point A to A) - wherein he has stated that :-
" It is correct that after surrendering the tenancy by Sh.Madan Lal & Sh.Rameshwar the rent receipt was issued in the name of the BadriPrashad only. (Vol. My father and my uncle objected to the issuance of the rent receipt in favour of the Badriprashad only)"
E35/2009 13 of 21 This according to the petitioner is a complete admission of the case of the petitioner. It is interesting to note that an application u/ss 151, 152 & 153 CPC came to be filed by the respondents on 17.12.2011, stating that the above is a typographical error and should be rectified. This application was dismissed by the Ld.Predecessor of this Court vide order dated 25.02.2013 on the premise that whether the above is actually a typographical error could not be assumed at that stage and its effect is a matter of trial. However the witness was also allowed to be re-examined on that limited aspect. RW 2 Mr.Shyam Lal was accordingly re-examined, wherein as expected the witness withdrew the aforesaid statement by stating :-
' Mr.Madan Lal and Mr.Rameshwar never their surrendered their tenancy in favour of Mr.Badri Prasad in the year 1978' The witness thereafter was duly cross examined.
The Ld.Counsel for the Petitioner contends that this is a frank admission of the factum of Surrender of tenancy and should be sufficient to decree the suit in his favour.
In my opinion the statement of RW 2 (Point A to A) in his initial cross examination, when considered in the totality of his evidence and the entire case of respondents, cannot be considered as an admission, leave alone a damaging one.
It is notable that RW 1 and RW 2 both in their cross examinations have consistently denied the factum of surrender of tenancy by Sh.Rameshwar and Sh.Madan Lal, except this stray statement.
RW 2's cross examination (recorded on 20.1.2011) before the statement in dispute comes, he has stated :-
" It is wrong to suggest that Sh.Madan Lal and Sh.Rameshwar surrendered their tenancy in favour of Sh.Badri Prasad in the year 1978"
This statement in my opinion, reflects what the witness wanted to convey and is in line with the consistent defence of the respondents. RW1 has also categorically denied the theory of surrender of tenancy in his cross examination. Such denials have also been made in the reply to legal notices as well as in Written Statement filed in the previous suit E35/2009 14 of 21 between the parties. All this seen cumulatively forces me to believe that what is being hailed as a fatal contradiction in my view is nothing but an error that has crept into the recording of evidence. The Court cannot lose sight of the fact that many a times error creep into the recording of evidence on account of suggestions to witness being put in a complexly worded sentence, especially in light of the fact that the evidence is recorded in English whereas many a times the witnesses are not even faintly acquainted with the language. This seems to be one such error. The Court always has the power to correct its own proceedings when there seems to be typographical error in the recording of evidence. A careful perusal of the testimony so recorded reveals that the witness had also volunteered and stated that this fact of the rent receipt being exclusively in the name of Badri Prasad was objected to by his father and uncle. Had it been that the tenancy was surrendered there would not have been any need of the said lines or the statement immediately volunteered by the witness. Import of the statement as a whole intends to convey in my opinion, that the witness intended to put forth his protest in reference to the receipts being issued in one name i.e. Badri Prasad. There is no question of any surrender of tenanted premises neither there is any categorical admission. Lastly even for the sake of arguments it is trite law that an admission is not conclusive of the matters spoken thereunder, but may estop (Section 31 of the Evidence Act)the maker of the statement/person who had so deposed. It does not oust the evidentiary value of the testmonies of all the witnesses and the entire material available on record. In this case preponderating evidence has been led by the respondents on the point that the respondents continued to occupy the suit premises and there being no surrender. The evidence on the point of there being no surrender is adequately corroborated and preponderating and cannot be set at naught on the basis of aforesaid so called admission relied upon so strenuously by the Learned Counsel for the petitioner.
In view of the aforesaid discussion it can be safely concluded that the petitioner has failed to discharge his burden of proof on the aspect of surrender of tenancy and E35/2009 15 of 21 subtenancy in favour of the respondents, this issue therefore it is decided in favour of the respondents and against the petitioner.
Now reverting back to the santity or importance of the fact that the tenancy commence in the year 1971. Now it is relevant to note that the respondent has by unimpeachable evidence demolishes this fact that the tenancy was created in the year 1971. The MCD birth certificate of Madan Lal of the year 1974. Even the record of the scribe/deed writer and other documents which are impressed a statutory character/isued by statutory authorities also probablises that the tenancy is much older than what is claimed by the petitioner. Probable reason for fixing the year 1971, henceforth the petitioner must have been dealing more with Badri Prasad, he being the neighbour and also well versed with the happening in the house of the respondent which is next to his house. However, the legal implication that the tenancy was initiated with Babu Lal necessarily means that the same devolves to his legal heirs. The unimpeachable nature of evidence led by the respondent which is also prior in point of time i.e. when parties were not at logger heads necessarily points out the inference that the tenancy of Babu Lal devolved to his legal heirs.
Further in light of the above findings the question raised by petitioner that the statutory tenancy that trickled down to respondent no.1 Sh.Kailash on the death of Sh.Badri Prasad, in light of the fact that he was financially independent, for a limited period of one year in light of (S.2(l) Expln. II - Delhi Rent Control Act) and on expiry of one year his tenancy terminated - need not be looked into as once it is proved on record that the tenancy trickled down not just to respondent no.1 but other respondents this issue becomes a non sequitur. However even academically the tenancy having been held to be one for commercial purpose. Section 2(l) Explanation II DRC does not apply. The devolution of a commercial tenancy needless to state devolves in accordance with ordinary rules of succession and not as per Section 2 of the DRC. In this regard reference may be had to Gyan Devi Anand Vs. Jeevan Kumar and Ors. (1985) 2 SCC
683.
E35/2009 16 of 21 8.2 Acquisition of own residential premises by Respondent No.1 and abandonment of
the demised Premises & Misuse of premises and creation of nuisance by using it as Diary The petitioner had also sought eviction on the grounds as envisaged in (S.14(1)(d) & S.14(1)(h) of the DRC) i.e on the ground of abandonment of demised premises and acquisition of new premises by respondent no.1 stating that the same has been admitted by RW 1 & RW2 as well as proved by the testimony of AW3 who has deposed that a certain premises in Roop Nagar stands assessed in the name of respondent no.1 for the purposes of house tax.
In my opinion this hardly makes a difference and we need not delve much on this aspect for the simple reason that even if it is proved that respondent no.1 actually acquired a premises of his own and shifted there for residential purposes, in any event since the theory of surrender is disbelieved and respondent nos 2 to 8 being also held as statutory tenants. The acquisition of premises & shifting there by one tenant i.e respondent no.1 even if believed cannot be said to be of any significance as others continued to occupy the suit property equally as tenants, hence there is no question of abandonment or acquisition of other residential premises by the tenant. It has already held that the tenancy has been sufficiently proved to have been created for commercial (milk diary) purposes - the ground that the tenant obtained another residential premises is not applicable in the case at all.
As regards the ground of misuser of premises by the tenants - that similarly falls to the ground since the premises has been used for for residential cum commercial (diary) from the very inception to the consent/acquiscense or at any rate knowledge of the petitioner. Hence the petitioner can be presumed to have let it out for residential - cum commercial purposes, hence there is no misuse.
In any event, even if it is assumed for the sake of argument that the original purpose of letting was residential. Section 14(1)(c) which provides for eviction on grounds of misuse of premises is conditioned by and has to be read with corresponding section E35/2009 17 of 21 S.14(5) which mandates the landlord to give notice of one month to the tenant to cease misuse of premises and petition still would not be allowed on this ground unless the said misuse leads to Damage to Property/Public Nuisance/or Detriment to the interests of the Landlord and the said fact is proved strictly. The petitioner has not even tried proving any of the aforesaid elements apart from making a bald averment of keeping of cows and cow dungs and creation of an unhealthy atmosphere by the respondents.
This issue therefore is also decided in favour of the respondents and against the petitioner.
8.3 The premises being required bona fide by the petitioner for his or family' s needs. (S.14(1)(e) of the DRC).
In my view the petitioner has not succeeded in proving the aspect of premises being required bona fide for his family's needs either. AW 2 son and Power of attorney holder of the petitioner, in his cross examination has categorically admitted that his father has the following four premises apart from the suit premises - House No. 2/26, Roop Nagar, Delhi, House No. 3/62, Roop Nagar, Delhi, House no. 72, Village Rajpura, Delhi & House No. 176, Village Rajpura, Delhi. He admitted that the petitioner alongwith his wife is living in Property No. 72, Rajpura, which consisted of 13 rooms with kitchen and bathroom and is a property admeasuring 400 sq.yards. With respect to House No. 176, Rajpura - the witness accepted that the said premises contained 30 rooms and measuring approx 160 sq.yards.
At House No.2/26, Roop Nagar, there are 4 shops, one godown, one garage and one room on the backside, total property measuring 240 sq.yds. With respect to House No. 3/62, the witness admitted that the same is a residential property comprising of 4 rooms on the ground floor.
In addition to the aforesaid admissions, what can also be seen is the Report of the Local Commissioner appointed by the Ld.Predecessor of the Court (vide Order dated 26.03.2011) to ascertain the status of Property No. Property No. 72, Rajpura to elucidate E35/2009 18 of 21 the court on the fact as to availability of other alternative accommodation with the petitioner other than the suit premises.
Relevant excerpts from said report (dated 27.04.2011) can be referred to here. The Local Commissioner stated that the said property is having an area of 360 Sq.Yards with four independent portions/Blocks. The Rooms in each block and their occupancy status are as follows :-
•Portion 1 - was found to have three floors of built up structure, in possession of Sh.Surender Singh son of the petitioner, this portion was found to consist of about 14 rooms with kitchen, toilet etc. The family details of said Sh.Surender Singh have not been given, but it can be logically presumed that atleast for his own branch's needs the said portion is more than enough.
•Portion 2 was found to be in possession of Sh.Devender Singh (RW 2) and a total of 7 rooms with kitchen, toilet etc were found there. The said Devender Singh is said to have a family of three more members and the said occupation can be said to be more than enough.
•Portion 3 - The third portion is in possession of Sh.Ravinder Kumar son of petitioner who has two floors in his possession having about 5 rooms with kitchen, toilet etc. The family of said Sh.Ravinder Kumar also is stated to consist of three members. •Portion 4 - is stated to be in possession of another son of the petitioner Sh.Rajender Singh and consists of six rooms with necessary appendages.
I am referring the report of the Local Commissioner only for the purpose of corroborating the admissions as culled out from the petitioner's witness/son during cross examination. The same thought not being relied upon as a substantive piece of evidence adds weight to the other evidences that the petitioner has failed to rebut on the point of availability of sufficient alternative accommodation other than the suit property.
All in all for the reasons aforesaid the requirement of the petitioner of suit premises for his or his family's needs does not appear to be a genuine imperative or a pressing E35/2009 19 of 21 one. All the four branches are financially independent and in possession of separate portions of properties. The four sons being in possession of substantial residential accommodation cannot be said to be dependant on the petitioner in any manner. In any case they cannot be said to be in bona fide requirement of suit premises even otherwise as there are categorical admissions on record that apart from the house as aforesaid, which was inspected by the Local Commissioner, three more properties (excluding suit property) are also owned by the petitioner or his sons. It deserves mention that the petitioner had filed objections to the report of Local Commissioner stating that the same does not state as to in whose actual possession the rooms as inspected by the Local Commissioner lie. With respect to this My.Ld.Predecessor was pleased to dismiss the objections of the petitioner vide a speaking order dated 20.08.2011 holding that the report of the local commissioner was within the brief given to the local commissioner vide order dated 26.03.2011 wherein the sole responsibility assigned to the local commissioner was to find out the number of rooms existing at the said premises and not the actual occupancy. In any event what is important here is that the report of the Local Commissioner was challenged on the sole ground that the same did not specify as to in whose actual possession each room lay but it gave the overall existence of rooms in each portion. What is notable is that the petitioner never attempted to assail the findings of the Local Commissioner on the point of that many rooms being available at the concerned property. Hence petitioner's admission to report atleast in this regard is writ large and conspicuous, in his silence about the said aspect of the report.
In my view in view of the aforesaid report, no actual/pressing need of the tenanted premises for the petitioner's own purposes is discernible, petitioner's children seems to have more than adequate accommodation for their and their family's needs hence this ground seems devoid of merit and deserves to fall.
9. Before parting another issue desperately needs point out. It is the conduct of the landlord/petitioner vis-à-vis the case. The Case was instituted in 1996 and the landlord indulged in what can be called a 'mass' or ' wholesale' invocation of grounds of eviction.
E35/2009 20 of 21 The petitioner practically took all the grounds of eviction available under the Delhi Rent Control Act quite carelessly without being able to establish even a single one. He did not narrow down the controversy by pressing the grounds that were genuinely attracted and giving up challenge with respect to the rest. The Courts are under an obligation to cogitate on each and every ground and decide the case on all issues agitated by the parties. The tendency to raise hollow claims unnecessarily burdens the court and robs other more genuine claims of the judicial time that they deserve. Such tendency needs to be curbed by imposing costs which are commensurate with the time spent by the Court in dealing with such frivolous petitions. If Actual, Realistic & Proper Costs in such cases are not imposed, that would be amount to incentivising such claims. In these circumstances the petitioner is burdened with the costs of Rs.10,000/-, however to be paid to DLSA to recoup the resources expended by the system in dealing with frivolous claims, the cost is not being made payable to the respondents as the conduct of the respondents/tenants has also not been anything to write home about, they, like the petitioner have also been lackadaisical with respect to the defence of the suit - and their combined efforts have succeeded in elongating this simple eviction petition for 18 years.
10. In my view in light of the aforesaid discussion the petitioner has not been able to make out a case for eviction on any of the grounds, therefore his petition stands dismissed, with costs of Rs.10,000/- to be paid to Delhi Legal Services Authority to be paid in the a period of 1 month.
11. Both the grounds u/s 14(1)(f) and (k) have been stated in the title of the petition, however, there is no whisper of the same in the entire body of the eviction petition. No order as to cost. File be consigned to record room.
Announced in the open court (Sumit Dass)
on 24.04.2014. SCJ-CUM-RC NORTH
ROHINI COURTS, DELHI.
E35/2009 21 of 21
E35/2009 22 of 21
E-35/2009.
24.04.2014.
Present: None.
Two applications are pending. First application is under order 22 Rule 4 CPC for impleadment of LRs of Lt. Sh. Rameshwar Prasad who died on 12.10.2013. The application was moved on 10.12.2013. Second application is u/o 22 Rule 10A CPC to the same effect.
Considered.
Application stands allowed having been filed within the period of limitation. Even otherwise the respondent No. 6 Rameshwar Prasad is survived by his LRs who are already on record, arrayed as respondent No. 7 and 8.
At this stage Ld. counsel Sh. R.K. Mehta Advocate has appeared. He has filed a citation - AIR 1987, SC 2220. Be put up now for pronouncement of judgement at 4 p.m. (SUMIT DASS) SCJ-cum-RC (North) Rohini Courts, Delhi/24.04.2014.
At 4 p.m. Present: Rajender Kumar S/o Laxman Singh. He is the LR of Laxman Singh.
Respondent No. 2 and 4 in person.
Matter was posted for orders.
Vide separate judgment of even date, eviction petition filed by the petitioner stands dismissed in toto. No order as to costs. File be consigned to Record Room.
(SUMIT DASS) SCJ-cum-RC (North) Rohini Courts, Delhi/24.04.2014.
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