Delhi High Court
Prakash Chand Gupta vs Sh. Inder Sen Gupta on 10 September, 1999
Equivalent citations: 2000IAD(DELHI)662, AIR2000DELHI188, 81(1999)DLT919, AIR 2000 DELHI 188, (1999) 2 RENCR 657, (2000) 1 RENCJ 418, (1999) 81 DLT 919
ORDER Vijender Jain, J.
1. Aggrieved by the order of dismissal of eviction petition under Section 14(1)(e) of the Delhi Rent Control Act by the Additional Rent Controller on 21st March, 1987, the petitioner has filed the present revision petition. The Additional Rent Controller held that the petitioner was not the owner of the premises in dispute. All the brothers including the petitioner were owners of the property bearing No. E-152, Kamla Nagar, Delhi. Even the purpose of letting was held to be composite one. The requirement of petitioner was considered to be not genuine on the basis that the petitioner was not the sole owner of the suit premises and taking in totality the total number of family members, accommodation was sufficient with the petitioner.
2. Mr. Ravi Gupta, counsel for the petitioner contended that the Additional Rent Controller erred in not appreciating that the property at Kamla Nagar was purchased by the father and the mother of the petitioner although the money for the construction was spent by the mother. Counsel for the petitioner invited the attention of this Court to the cross examination of petitioner-AW-4 in this regard. Thereafter property was partitioned among the brothers by the mother in terms of AW4/1.
3. He further contended that admittedly the property stands in the name of the petitioner and after the family partition, he became the absolute owner of the suit property. The respondent was inducted by the petitioner in the suit premises. Mr. Gupta further contended that the Rent Controller failed to appreciate that the 1966 family arrangement became insignificant after the memorandu of family arrangement was signed by four brothers including the petitioner Ex. AW4/1 and on the date of filing of the petition, admittedly, the petitioner was the owner of the premises in question and competent to file the eviction proceedings. He was further contended that during the pendency of the petition on 11.2.1986 the ownership was decided in favour of the petitioner while rejecting the application of respondent under Order 6 Rule 17 of the CPC and holding that in view of the Partition Deed Ex.AW4/1 property in suit fell to the share of the petitioner and the said finding could not have been reversed by the Additional Rent Controller as the same would operate res-judicata between the parties and in support of his submissions has cited Y.B. Patil and others Vs. Y.L. Patil AIR 1977 SC 392, Prahlad Singh Vs. Col. Sukhdev Singh 1987 RLR (SC) 151 and 1986 JT(1) 541.
4. Mr. Ravi Gupta had challenged the finding of Additional Rent Controller on the purpose of letting. Counsel for the petitioner has contended that in view of non-production of father of the petitioner who appeared as AW. 5 for cross examination, the Additional Rent Controller could not have arrived at the finding that the premises was let out for composite purpose.
The petitioner who appeared in the witness box categorically stated that the premises were let out by him to the respondent for residential purpose in the year 1965 and the respondent was residing in the premises with his family. He contended that the telephone connection, electricity connection and water connection installed in the suit premises were for domestic/residence purposes only. Mr. Gupta contended that although the respondent took the stand that his wife was doing business under the name and style of M/s. S.N. Gupta & Company but nothing was produced to support the said claim. The Rent Controller did not appreciate the nature of the premises, the locality in which it is situated and the statement of respondent who stated that he was residing in the premises with his family members. Counsel for the petitioner contended that the petitioner in reply to the application filed by the respondent incorporating subsequent events had contended that now the family of the petitioner consists of himself and his wife elder son Rakesh Kumar and his wife, two children of Rakesh Kumar one daughter and one son, younger son Yogesh Kumar and his wife, widowed mother, three married daughters out of them one is married out of Delhi and two are married at Delhi, three married sisters who are residing in Delhi and one servant. The requirement of the family members is at least five bed-rooms for the residence of himself and his family members. In addition to that, one drawing-cum-dining room, one guest room, one pooja room, three stores and one servant quarter was also required by family of petitioner.
5. It was further pleaded that during the pendency of the present proceedings, the petitioner had acquired upper ground floor portion of the property, bearing No. E-55, Greater Kailash, New Delhi and he has got four bed-rooms with attached bath rooms, one drawing room-cum-dining room and one servant quarter and one family launge. Said accommodation at Greater Kailash is not sufficient to accommodate the family of the petitioner.
Therefore, petitioner has contended that said accommodation is not an alternative suitable accommodation in the hands of the petitioners.
6. It was further brought to the notice of the Court that the respondent has acquired the vacant possession of property No. 2-C. Banarsi Dass Estate, Delhi. This property is constructed on a plot measuring 650 sq. yds. and is a 2-1/2 storeyed structure. It was contended before me that respondent has already shifted in the said premises along with his family members.
It was further stated that a petition under Section 14(1)(h) of the Delhi Rent Control Act was pending before the Additional Rent Controller and the same is pending awaiting decision of the present civil revision petition for the purpose of letting. It was contended that as a matter of fact respondent has permitted his married daughter to live in the premises in question.
7. Mr. Ishwar Sahai, learned counsel for the respondent contended that the petitioner was owner of more than sufficient accommodation at M-14 Greater Kailash, New Delhi and four flats at E-152. Kamla Nagar, New Delhi. Same are also available to the Petitioner. The flats fell vacant during the pendency of the proceedings before the Additional Rent Controller but the said flats were re-let from time to time to different tenants. It was contended that the petitioner miserebly failed to establish that he was the owner of the premises in suit. It was further contended by Mr. Sahai that if the petitioner's mother was the real owner then document Ex. AW4/1 pertaining to family arrangement has been wrongly admitted in evidence although the respondent has objected to its admissibility. He contended that in any event, the alleged document purporting to be a family arrangement and/or partition deed, is admittedly no evidence for want of registration.
8. Controverting the argument of Mr. Gupta that the finding of the Additional Rent Controller while dismissing an application under Rule 6, Order 17 of CPC moved by the respondent and the question of ownership, it was contended before me that it was not finally decided and, therefore, the plea of resjudicata raised by the petitioner was mis-conceived and untenable. It was further contended that there was no document produced relating to premises No. M-14, Greater Kailash which showed that the said premises belongs only to the father of the petitioner and petitioner had no legal right to live in the said house. It was contended that taking into consideration the accommodation available at M-14, Greater Kailash and E-152.
Kamla Nagar the accommodation is sufficient for the residence of the petitioner and other family members dependent upon him.
9. Defending the impugned order of the Additional Rent Controller vis-a-vis his finding on the question of composite purpose of letting, Mr. Sahai, contended that non-production of RW-4 for cross examination was fatal to the case of the petitioner as in his testimony he has stated that he had inducted the respondent as a tenant for residential purpose only. Mr. Sahai contended that as a matter of fact no copy of Rent Note was given to the respondent although the same was executed.
10. I have given my careful consideration to the arguments advanced by learned counsel for the parties. The first point to decide in this matter is as to what was the Purpose of Letting. Whether the finding returned by the Additional Rent Controller was based on evidence and material on record. The answer is in the negative. The Additional Rent Controller held that initial onus was on the petitioner to prove his case about the purpose of letting being residential and non-production of the father of the petitioner, who appeared in the witness box as AW-5 for cross examination, was fatal to the case of the petitioner and has drawn as adverse inference and held that the purpose of letting was composite.
11. The Additional Rent Controller fell in grave error in drawing an adverse inference as the father of the petitioner was not produced in cross examination. The best course permitted to him in law was not to believe on the testimony of AW-5 who was not brought in the Court for the purpose of cross examination. Testimony of AW-5 was to be ignored. But can it be said that there was no other material before the Additional Rent Controller on the basis of which no inding on the purpose of letting could be given. The Additional Rent Controller ought to have given a finding on the purpose of letting based upon pleadings of the parties, documents brought on record, evidence adduced. Instead of doing that simply drawing an adverse inference amounts to mis-carriage of justice and on this score alone, the impugned order can be set aside. Eviction petitioner appeared before the Additional Rent Controller in the witness box and categorically stated that the premises let out by him to the respondent was only for residential purposes and the respondent is residing in the premises with his family. It was brought on record that the telephone connection, electricity connection and water connection installed at the premises were for domestic/residential purposes only. The testimony of respondent who appeared as RW-1 is very material which was recorded on 8th December, 1986 to the following effect. In the Examination-in-chief he stated :-
"It is correct that water and electricity connection in the suit premises are domestic and not commercial. It is correct that I have got a telephone in my name at E-152, Kamla Nagar, and in the telephone directory I have got it recorded the telephone at my residence."
12. The Additional Rent Controller ought to have taken precaution in arriving at a finding in view of the fact that there was no written Rent Note which was produced before the Additional Rent Controller. Although respondent has taken the stand that his wife was doing some business in the premises, nothing was produced on record with regard to the volume of sales, business activities, account book or other documents which could show that some business activity was going on in the premises. It was merely a bald statement of the respondent without any basis. No credence could have been given to the testimony of respondent who took the stand that although Rent Note was typed but he did not retain a copy. As a matter of fact, from the evidence produced by the respondent from Bank of Baroda to show that there was a bank account of the said business firm, it was manifestly clear that no transaction in the said account was done for the last more than ten years. Mr. P.K. Jain, Accounts Clerk of Bank of Baroda who appear as RW. 4 in his cross examination stated :
"We are in possession of record prior to 1.1.1982. We checked the record for the last ten years only. The account has not been operated upon since the last ten years."
13. The Additional Rent Controller also lost sight of the fact that the premises in question was situated in residential locality. In view of the overwhelming evidence that the premises was let out for residential purposes, not even to discuss the evidence brought on ecord and drawing an adverse inference was absolutely uncalled for. Therefore, in view of discussion above I set aside the finding of the Additional Rent Controller that purpose of letting was composite and hold that the purpose of letting was residential only.
14. That brings me to the controversy as to whether the petitioner was owner of the premises in question. The Additional Rent Controller also lost sight of the fact that the statement of the respondent was recorded after the examination in chief of father of the petitioner was recorded and nowhere he has stated that the premises were let out to the respondent by the father of the petitioner. As a matter of fact, nothing more was re-
quired by the Additional Rent Controller if he would have carefully read the testimony of RW-1 at page 65 of the Trial Court recorded in which respondent No. 1 himself has stated:-
"before shifting to M-14, Greater Kailash Market, the petitioner was residing in the suit premises and after letting out the premises in suit to me, he shifted to M-14, Greater Kailash Market, New Delhi."
15. In view of his own admission that it was the petitioner who let out the premises to him what more was required to be proved on record. Therefore, the Additional Rent Controller committed grave irregularity in holding that the petitioner was not the owner of the premises in question.
16. The Additional Rent Controller did not appreciate that the family arrangement of 1961 became insignificant after the memorandum of family arrangement which was signed by four brothers including the petitioner and the same was Ex. AW4/1. Therefore, on the date of filing of the petition, the petitioner was owner of the premises in question and as such was compe-
tent to maintain the eviction petition. Therefore, I hold that the petitioner was the owner of the premises in question and could maintain the eviction petition. In view of Ex. AW4/1, it can not be said that the petitioner was the owner of the whole of the E-152, Kamla Nagar, Delhi. Petitioner was only owner in respect of only three rooms, kitchen, bath, latrine and small court yard as shown in the site plan attached with the petition as that share came pursuant to the family arrangement between the parties to the petitioner. Ex. AW4/1 could have been relied upon as same is not a document which requires registration in terms of Roshan Singh and Others Vs. Zile Singh and others AIR 1988 SC 881. Therefore, whole approach of the Additional Rent Controller in taking the total accommodation in premises No. E-152, Kamla Nagar, Delhi in the hands of petitioner was contrary to the evidence brought on record. The family of the petitioner consists of his wife and himself, elder son and his wife, two children of the son, another son and his wife, widowed mother. There are three married daughters of the petitioner. Petitioner has also got three married sisters. There-
fore, requirement of minimum five rooms for the family members as well as one room for the guest, one Pooja room and one study room cannot be considered requirement which is not bona fide. It was also brought on record that in the accommodation available at M-14, Greater Kailash, the petitioner did not have any legal right. The said property belong to the father of the petitioner. In that house, apart from the parents of the petitioner, other two brothers and their families were also residing and the accommodation available in that house was consisted of two bed rooms, one drawing room, dining room on the first floor and small Barsati on the second floor. The ground floor was commercial and by no stretch of imagination it can be said to be an accommodation sufficient for the petitioner's family. I have also held that the accommodation now available at E-155, Greater Kailash which consists of four bed room is not sufficient for the family of the petitioner. The accommodation available at E-55, Greater Kailash, New Delhi consists of four bed rooms only. Therefore, keeping in view the number of family members the present accommodation is not sufficient to meet the requirement of the petitioner.
17. During the course of the arguments, arguments were addressed that the Power of Attorney dated 26th March, 1986 executed by petitioner in favour of his brother Ved Prakash Gupta, inter-alia, authorising him to deal with the property shows that petitioner has sold this property to his brother. It was argued by Sh. Ishwar Sahai that the attorney manifestly made it clear that some sort of family arrangement was entered into by the peti-
tionr between himself and his brother and the right in the said premises has been transferred in favour of said Ved Prakash Gupta. I do not see any force in the argument of Mr. Sahai as the brother of the petitioner is an advocate and the power of attorney has been executed as Ved Prakash Gupta has been attending the court cases for and on behalf of the petitioner. It was contended before me that even before the Trial Court the proceedings were looked after by the brother of the petitioner Ved Parkash Gupta since he was a practicing lawyer in the family. Petitioner also brought on record some income tax record for the period ending 1997-98 and 1998-99 to show that the rents from the premises in question were being accounted as income from the house property in the return of the petitioner. I do not find any force in the argument that power of attorney executed by the petitioner in favour of his brother who is a practicing advocate would demonstrate that the property has been transferred in the name of brother of the petitioner. I do not see any merit in the contention of the respondent. I pass a decree of eviction under Section 14(1)(e) of the Delhi Rent Control Act and set aside the order of the Additional Rent Controller. However, the decree shall not be executable before the expiry of a period of six months from today.
18. Civil Revision petition is allowed.