Delhi District Court
Pran Nath Chopra vs Om Prakash on 9 February, 2012
In the Court of Sh. Manoj Kumar : Rent Controller of New Delhi District
at Patiala House Courts, New Delhi
E No. 07/09
I.D. No. 02403C0527482003
In the matter of:
Pran Nath Chopra,
son of late Amar Nath Chopra,
R/o First Floor, 122 Golf Links,
New Delhi110003 ...................Petitioner
VERSUS
Om Prakash,
R/o A/211212, Narwana Apartments,
Plot no. 89, Patparganj,
Delhi110092 ..................Respondent
Date of Institution : 05.06.2003
Date of Arguments : 27.01.2012
Date of Judgment : 09.02.2012
APPLICATION FOR EVICTION UNDER SECTION 14(1)(d) & (hh) OF
THE DELHI RENT CONTROL ACT, 1958.
JUDGMENT:
This is an application for recovery of possession of premises forming part of building bearing no. 12) 54, Sunder Nagar, New Delhi110003 constructed on plot no. 54, Block 171, New Delhi, commonly E. No. 07/09 Page no. 1 of 22 known as 54 , Sunder Nagar, New Delhi made by applicant Sh. Pran Nath Chopra against respondent Sh. Om Prakash (since deceased and represented through his legal representatives) under clauses (d) and (h) of proviso to subsection (1) of section 14 of the Delhi Rent Control Act, 1958 (Act 59 of 1958).
2. It is stated in the application that the premises were let out to the respondent alone and he had been residing with his family at A211/212, Narwana Apartments, Patparganj New Delhi the two residential apartments owned by the respondent Om Prakash and his son; that the accommodation covered by the premises are one room measuring 10' - 6'' X 9' 7.5'' and one enclosed varandah 9' 7'' X 6' with common use of WC in the servant quarter block, rear side of 54, Sunder Nagar New Delhi; that the premises have been shown in red colour whereas the common toilet has been shown in blue colour in the site plan annexed with the application; that the premises are situated on the first floor of the servant quarter block on the rear side and the same were let out by Mr. Amar Nath Chopra, late father of the applicant for residential purpose; that Mr. A. N. Chopra died on 27.09.1986 and since then the applicant is the owner/landlord of the premises. It is further stated in the application that the premises had been let out for residential purposes only to the respondent and the tenant has after the commencement of the Delhi Rent control (Amendment) Act, 1988 built/acquired vacant possession of residential apartments no. A211 and E. No. 07/09 Page no. 2 of 22 A212, Narwana Apartments, Plot no. 89, Patparganj, Delhi and ten years have elapsed thereafter; that the respondent has been residing in the said residential flats bearing no. A211 and A212 for the last more than ten years; that the premises were let out for the residence of the respondent and neither the tenant nor any member of his family is residing for a period of six months immediately before the date of filing of the application for eviction/recovery of possession. It is further stated in the application that an order for recovery of possession of servant quarter situated on the first floor of the servant quarter block on the rear side of Sunder Nagar, New Delhi be passed in favour of the applicant and against the respondent.
3. The application for eviction is contested by respondent Mr. Om Prakash during his lifetime and subsequently by his legal representatives, namely, Sh. Prahlad Rai Gupta, Smt. Nirmala and Smt. Rekha Gupta by way of written statements of defence.
4. In the written statement filed by Mr. Om Prakash, the respondent, preliminary objections are taken to the effect that the application is an abuse of the process of law; that the provisions of section 14 (1) (hh) of Act 59 of 1958 are not applicable to the present case and the application merits dismissal; that the application for eviction is premature and no notice has been served prior to the institution of the application; that the applicant alone is not the sole owner of the property and, significant the other coowners are not impleaded as party; that in the absence of other co E. No. 07/09 Page no. 3 of 22 owners, the present application at the instance of a single coowner is legally incompetent. In the reply on merits it is denied that the applicant is the landlord of the premises and it is stated that initially the premises were let out by Mr. Amar Nath Chopra to the respondent and on the demise of Sh. Amar Nath Chopra his two sons and four daughter succeeded to his estate thus the applicant alone is not the owner/landlord of the premises; that the other coowners have not been impleaded as party to the instant proceedings. In the written statement of Mr. Om Prakash it is admitted that the premises were let out to him alone but it is denied that he is residing with his family at A211, 212, Narwana Apartments, Patparganj, New Delhi and it is asserted that the respondent was living in the premises whereas his other family members were living at A211/212, Narwana Apartments, Patparganj, Delhi. In other paragraphs of the written statement it is denied that there exists any ground for eviction against the respondent and it is stated that the application for eviction be dismissed.
5. In the written statement filed on behalf of Mr. Prahlad Rai Gupta and Smt. Nirmala, two of the legal representatives of the respondent, all the defences taken by the respondent in his written statement are reiterated and it is added that the application is bad for non joinder of the necessary parties as the applicant is not the sole landlord or owner of the premises in question. It is further stated in the written statement of Mr. Prahlad Rai Gupta and Smt. Nirmala that Mr. Amar Nath Chopra, the E. No. 07/09 Page no. 4 of 22 predecessor in interest, of the applicant died on 27.09.1966 and left behind two sons and four daughters. It is further stated that after the death of Mr. Amar Nath Chopra all the said legal heirs and legal representatives of the deceased landlord became the landlord of the respondent and the applicant has not disclosed these facts. It is further stated in their written statement that the application for eviction has been filed against respondent Om Prakash (since deceased) on the ground that the said respondent had built up/acquired vacant possession of residential apartment no. A/211 and A/212, Narwana Apartments, Plot no. 89, Patparganj, Delhi. It is further stated that late Om Prakash was not in vacant possession of the said property and he was never the owner or acquired any apartment bearing no. A/212 and A/211, Narwana Apartments, Plot no. 89, Patparganj, Delhi and his legal representatives have not inherited any portion of the property bearing A/211 and A/212, Narwana Apartments, Plot no. 89, Patparganj, Delhi. It is stated in the written statement that the application for eviction be dismissed.
6. In the separate written statement filed on behalf of Smt. Rekha Gupta, the legal representative of the respondent, all the defences taken by the respondent in his written statement are reiterated and it is added that the application is bad for non joinder of the necessary parties as the applicant is not the sole landlord or owner of the premises in question. It is further stated in the written statement of Smt. Rekha Gupta that Mr. Amar Nath E. No. 07/09 Page no. 5 of 22 Chopra, the predecessor in interest, of the applicant died on 27.09.1966 and left behind two sons and four daughters. It is further stated that after the death of Mr. Amar Nath Chopra all the said legal heirs and legal representatives of the deceased landlord became the landlord of the respondent and the applicant has not disclosed these facts. It is further stated in her written statement that the application for eviction has been filed against respondent Om Prakash (since deceased) on the ground that the said respondent had built up/acquired vacant possession of residential apartment no. A/211 and A/212, Narwana Apartments, Plot no. 89, Patparganj, Delhi. It is further stated that late Om Prakash was not in vacant possession of the said property and he was never the owner or acquired any apartment bearing no. A/211 and A/212, Narwana Apartments, Plot no. 89, Patparganj, Delhi and his legal representatives have not inherited any portion of the property bearing A/211 and A/212, Narwana Apartments, Plot no. 89, Patparganj, Delhi. It is further stated in the written statement of Smt. Rekha Gupta that the application for eviction be dismissed.
7. To the written statement of the respondent a replication was filed on behalf of the applicant wherein the defence taken by the respondent was traversed and the averments made in the application for eviction were reiterated.
8. To the written statement of Mr. Prahlad Rai Gupta and Smt. Nirmala, two of the legal representatives of the late respondent, a E. No. 07/09 Page no. 6 of 22 replication has been filed on behalf of the applicant wherein the defence taken by the said legal representatives of the respondent has been traversed and the averments made in the application for eviction are reiterated.
9. To the written statement of Smt. Rekha Gupta, one of the legal representatives of the late respondent, a replication has been filed on behalf of the applicant wherein the defence taken by the respondent has been traversed and the averments made in the application for eviction are reiterated.
10. In support of his case applicant Mr. Pran Nath Chopra got examined himself as AW1 and during his examination in chief tendered his affidavit Ex. A1 alongwith documents Ex. A/1 to Ex. A/4. The witness was cross examined and reexamined on behalf of the respondent and the applicant respectively and thereafter, he was discharged and his evidence was closed.
11. In support of the case of the respondent, Mr. Prahlad Rai Gupta, one of the legal representatives of the late respondent, got examined himself as RW1 and during his examination in chief tendered documents Ex. DW1/1 to Ex. DW1/4. On behalf of the respondent RW2 Mr. Rajender Kumar, Manager, Priya Gas Service and RW3 Mr. Pawan Kumar Sharma, Manager of Narwana Cooperative Group Housing Society Ltd. were also got examined and during their examination documents Ex. RW2/1 and Ex. RW2/2 were also admitted in evidence.
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12. I have heard counsel for the parties and gone through the material on record carefully.
13. Having drawn my attention on the contents of the application for eviction of tenant, written statement filed on behalf of respondent Mr. Om Prakash, testimony of AW1 Mr. Pran Nath Chopra, documents Ex. A/1 to Ex. A/4, Ex. DW1/1 to Ex. DW1/4, Ex. RW2/1, Ex. RW2/2 and the law laid down in N. K. Rustagi v. K. S. Gupta and others, 1993 (2) RCR 142, S. Jagir Singh v. S. Vasava Singh, 48 (1992) DLT 113, Budh Ram and others v. Bansi and others, V (2010) SLT 723, Shankara Coop Housing Society Ltd. v. M. Prabhakar and others, IV (2011) SLT 565, M/s India Umbrella Manufacturing Company and others v. Bhagabandei Agarwalla (dead) by LRs Smt. Savitri Agarwalla, 2004 (1) RCR 154, Mohinder Prasad Jain v. Manohar Lal Jain, 2006 (1) RCR 250, Pal Singh v. Sunder Singh by legal representatives and others, 1989 (2) RCR 331, Sri Ram Pasricha v. Jagan Nath and others, 1976 RCR 832, J. Kumaradasan Nair and another v. Iric Sohan and others, II (2009) SLT 196 and Asfaq Qureshi v. Aysha Qureshi, 2011 (2) RCR (civil) 478 it is submitted by counsel for the applicant that from the evidence led by the parties grounds for eviction against the respondent and his legal representatives have been proved and therefore, eviction order be passed. It is further submitted by counsel for the applicant that although in the caption of the application it has not been mentioned by the applicant that the possession has also been sought on the ground E. No. 07/09 Page no. 8 of 22 prescribed in clause (h) of proviso to subsection (1) of section 14 of Act 59 of 1958 but in paragraph no.18 (a) (i) of the application for eviction it has been mentioned that the respondent had acquired vacant possession of a premises and therefore ignoring the fact that the ground mentioned in clause
(h) of proviso to subsection (1) of section 14 of Act 59 of 1958 has not been mentioned in the caption of the application an eviction order be also passed under the said provision because from the document Ex. DW1/4 it has been proved beyond doubt that before making of the present application for eviction the respondent had acquired vacant possession of residential property at A211, Narwana Apartments, Patpar Ganj, New Delhi. It is further submitted by counsel for the applicant that the site plan Ex. A/1 has been prepared by mechanical process and its genuineness and contents have not been disputed by the respondent or his legal representatives in their written statements and therefore, the site plan be treated as duly proved. It is also submitted by counsel for the applicant that the applicant is the owner of the premises and therefore, is competent to file the present application for eviction and to recover possession of the premises from the legal representatives of the respondent. It is further submitted by counsel for the applicant that the documents Ex. RW2/1 and Ex. RW2/2 are not reliable and the same do not prove that immediately before making of the present application the respondent occupied the premises for a period of six months. It is further submitted by counsel for the applicant that an eviction order be E. No. 07/09 Page no. 9 of 22 passed.
14. Per contra, having drawn my attention on the contents of the application for eviction, written statements filed on behalf of the respondent and his legal representatives, testimony of AW1 Sh. Pran Nath Chopra, RW1 Mr. Prahlad Rai Gupta, RW2 Mr. Rajender Kumar, RW3 Mr. Pawan Kumar Sharma, documents Ex. A/1 to Ex. A/4, Ex. DW1/1 to Ex. DW1/4, Ex. RW2/1 and Ex. RW2/2 and the provisions of the Act 59 of 1958 it is submitted by counsel for the respondent that the applicant has failed to prove the ground for eviction under clauses (d) and (hh) of proviso to sub section (1) of section 14 of Act 59 of 1958 against the respondent. It is further submitted by counsel for the respondent that in the absence of necessary pleadings in support of the ground of eviction enumerated in clause (h) of proviso to subsection (1) of section 14 of Act 59 of 1958 the contention of the applicant that the tenant be evicted on the ground mentioned in clause (h) is misconceived and cannot be accepted. It is further submitted by counsel for the respondent that in the prescribed form of the application for eviction the applicant has specifically mentioned that the application for eviction was being made under section 14 (1) (d) and (hh) of Act 59 of 1958 and also in paragraph no.18 (a) of the application for eviction the applicant having adopted the language used in clauses (d) and (hh) of proviso to subsection (1) of section 14 of Act 59 of 1958 has taken only two grounds for eviction. It is further submitted by counsel for the E. No. 07/09 Page no. 10 of 22 respondent that had the applicant any intention to seek eviction of the tenant on the ground mentioned in clause (h) of proviso to subsection (1) of section 14 of Act 59 of 1958, he would have mentioned the same in the caption of the application as well as in paragraph no.18 (a) of the application for eviction. It is also submitted by counsel for the respondent that the documents Ex. A/1 to Ex. A1/4 are inadmissible in evidence and therefore, the same be ignored and the application be dismissed.
15. I have given my thoughtful consideration to the submissions made on behalf of the parties.
16. One of the ground taken by the respondent as well as his legal representatives in opposing the present application for recovery of possession is that the applicant is not competent to make the present application as other coowners have not been impleaded as a party in this case. It is not disputed by the respondent or his legal representatives that the applicant has ownership rights in the premises. The law is well settled that even a coowner can make an application for recovery of possession of premises under the provisions of Rent Act. In the face of this settled legal position the objection raised by the respondent and his legal representatives is without any merit. I hold that the applicant is competent to make the present application being landlord of the premises.
17. The present application for eviction of tenant was made on 05.06.2003 originally against Mr. Om Prakash who expired during the E. No. 07/09 Page no. 11 of 22 pendency of the case. The application is on the form A prescribed in the appendix annexed to the Delhi Rent Control Rules, 1959. The caption of the application reads as follows: Application for eviction of tenant under section 14 (1)
(d) & (hh) of the Delhi Rent Control Act, 1958.
18. In paragraph no.18 (a) of the application, which require a landlord to state the ground on which the eviction of the tenant is sought it has been stated as follows:
(i) That the premises in suit had been let out for residential purposes only to the respondent. The tenant had after the commencement of the Delhi Rent Control (Amendment) Act 1988 built/acquired vacant possession of residential apartments Nos. A211 and A212, NARWANA APARTMENTS, Plot No. 89, Patpar Ganj, Delhi and ten years have elapsed thereafter. The respondent has been residing in the said residential flats for the last more than 10 years.
(ii) That the premises were let out for residence of the respondent and neither the tenant nor any member of his family has been residing for a period of SIX MONTHS immediately before the date of the filing of this petition for eviction/recovery of possession.
19. From a reading of the application it can be discerned that only two grounds for eviction have been taken by the applicant although during the course of arguments it is vehemently argued on behalf of the applicant that the application for eviction is also founded on the ground mentioned in clause (h) of proviso to subsection (1) of section 14 of Act 59 of 1958. Before discussing this aspect of the case it is necessary to decide the question of admissibility of documents Ex. A/1 to Ex. A/4 tendered by AW1 Mr. Pran Nath Chopra during his examination in chief.
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20. As per the testimony of AW1 Mr. Pran Nath Chopra the site plan of the premises is Ex. A/1, an invitation card given by respondent to the applicant regarding the marriage of his grandson Kamal solemnised on 16.2.1996 is Ex. A/2, a letter dated 19.7.1989 received by the late respondent and shown by him to Brig. S.K. Chopra, the late brother of the applicant, in presence of the applicant is Ex. A/3 and Ex. A/4 is a letter which was left in the letter box affixed outside the premises of Brig. S.K. Chopra by the postman. At the time of the tendering of the said documents in evidence strong objection was taken by counsel for the respondent regarding admissibility of the said documents in evidence. According to counsel for the respondent all the four documents cannot be read in evidence and should be ignored while analysing the evidence, whereas according to counsel for the applicant all the four documents have been proved as per law.
21. Site plan Ex. A/1 was filed under the signature of my predecessor on 02.7.2003 and the same was filed alongwith the application on 05.6.2003. The reference of site plan filed alongwith the application has also been made in paragraph no. 8 of the application for eviction wherein it is stated that the premises in suit are shown in red colour. In the written statement of the respondent as well as his legal representatives the contents of paragraph no. 8 have not been denied although it has been stated that such non denial is subject to other pleas. In the written statement of the E. No. 07/09 Page no. 13 of 22 respondent as well as his legal representatives I do not find anywhere that the correctness of the site plan referred to in paragraph no. 8 has been disputed or denied. The respondent or his legal representatives themselves have not filed any other site plan. In these circumstances in the light of the pleadings of the parties I hold that site plan Ex. A/1 is admissible in evidence without calling the original or the draftsman. The objection raised on behalf of the respondent in this regard is without any substance. In so far as invitation card Ex. A/2 and letter Ex. A/3 are concerned, the same, as per the testimony of AW1 Mr. Pran Nath Chopra, were received by the applicant himself or in his presence by his brother and therefore, the same have been tendered by a proper person who can vouch about the authenticity of the said documents. I hold that documents Ex. A/2 and Ex. A/3 are also admissible in evidence and have been proved as per law.
22. In so far as fourth document Ex. A/4 is concerned, as per the affidavit Ex. A1 tendered by AW1 Mr. Pran Nath Chopra during his examination in chief the said document was stated to be found in the letter box affixed outside the premises of the applicant's brother. The applicant neither received the said document nor can vouch about the authenticity of the same and therefore, the same cannot be treated as duly proved and during the analysis of evidence Ex. A/4 is liable to be eliminated.
23. Now I come to the main contention of the learned counsel for the applicant, that the ground of eviction, as mentioned in clause (h) of E. No. 07/09 Page no. 14 of 22 proviso to subsection (1) of section 14 of Act 59 of 1958, is to be treated have been raised in the application for eviction notwithstanding the fact that the same has not been mentioned in the caption and an eviction order is liable to be passed on the said ground.
24. As I have already observed in his application for eviction the applicant has taken only two grounds. In the first ground for eviction the applicant has used the same language as has been used in clause (hh) of proviso to subsection (1) of section 14 of Act 59 of 1958 save that alongside the word "built" word "acquired" has been put by making a stroke and phrase "vacant possession" has been added. In the applications of the kind involved in this case, where an applicant is required to mention as to under what provision of the law the same is being made, it becomes significant as to what provision of the law has been specifically mentioned by the applicant. The applications for eviction wherein, invariably, the parties may be called upon to lead evidence without framing of formal issues, the caption of the application gives an indication to the opposite party as to on what ground the eviction is being sought or relief against the opposite party is claimed.
25. An application for eviction cannot be equated with an application for condonation of delay [vide J. Kumaradasan Nair's case (supra)] or a suit wherein while seeking declaration of legal character a party also mentioned the provisions of the Hindu Marriage Act, 1955 [ vide E. No. 07/09 Page no. 15 of 22 Asfaq Qureshi's case (supra)].
26. In the present case by mentioning two grounds for eviction in the caption and in paragraph no. 18 (a) of the application and by adopting the same language which has been used in clause (hh) of proviso to sub section (1) of section 14 of Act 59 of 1958 the applicant has clearly given an indication that his application was founded on clause (hh) and not clause
(h). In this regard the use of the word "acquired" or phrase "vacant possession" which has been used in clause (h) becomes superfluous and cannot be used to the prejudice of the respondent who was always made to believe that the case against him was only under clauses (d) and (hh) of proviso to subsection (1) of section 14 of Act 59 of 1958.
27. Alternatively, even if it is believed that without mentioning in the caption of the application, the applicant has taken ground mentioned in clause (h) of proviso to subsection (1) of section 14 of Act 59 of 1958, still the contention of the learned counsel for the applicant that the eviction order be passed against the respondent on the ground mentioned in clause (h) cannot be sustained.
28. Clause (h) of proviso to subsection (1) of section 14 of Act 59 of 1958 empowers a landlord to seek possession of a premises if such tenant has, whether before or after the commencement of Act 59 of 1958, acquired vacant possession of, or been allotted, a residence.
29. As per the law laid down by the Hon'ble Supreme Court in E. No. 07/09 Page no. 16 of 22 Ganpat Ram Sharma and others v. Smt. Gayatri Devi, AIR 1987 Supreme Court 2016, a landlord can make application seeking eviction of tenant on the ground mentioned in clause (h) of proviso to subsection (1) of section 14 of Act 59 of 1958 within the period of limitation prescribed in Article 66 of the Schedule appended to the Limitation Act, 1963 (Act 36 of 1963) and such period is 12 year from the date of accruing cause of action in favour of the tenant.
30. In the present case as per the testimony of AW1 Mr Pran Nath Chopra in order to establish his bona fide the deceased respondent handed over letter Ex. A/3 dated 19.7.1989 received by him from M/s Narwana Group Housing Society Ltd. to his elder brother in his presence. Implying that in the year 1989 the applicant on the basis of the document Ex. A/3 came to know that the respondent had acquired a residential house at Narwana Cooperative Group Housing Society Ltd.
31. As per the record of the present case the present application for eviction was made on 05.6.2003 after expiry of 12 year limitation period held to be applicable by the Hon'ble Supreme Court in Ganpat Ram Sharma's case (supra). The applicant, under competent legal advice, must have been aware about the fact that his application for eviction on the ground mentioned in clause (h) of proviso to subsection (1) of section 14 of Act 59 of 1958 was time barred at the time of the making of present application for eviction. In this overall scenario the contention of the E. No. 07/09 Page no. 17 of 22 applicant that an eviction order be passed on the ground prescribed in clause
(h) of proviso to subsection (1) of section 14 of Act 59 of 1958 cannot be accepted.
32. Now I come to the two main grounds for eviction of tenant taken by the applicant in his application, namely, the grounds mentioned in clauses (d) and (hh) of proviso to subsection (1) of section 14 of Act 59 of 1958.
33. The first ground for eviction taken by the applicant is that the tenant has, after the commencement of the Delhi Rent Control (Amendment) Act, 1988 built a residence and 10 years have elapsed thereafter.
34. According to the applicant the respondent had acquired vacant possession of residential apartments no. A211/212, Narwana Apartments, 89, Patpar Ganj, Delhi whereas the contention of the respondent is that the respondent had no concern with the premises no. A212, Narwana Apartments, Delhi whereas the other house bearing flat no. A211 at Narwana Apartment, Delhi was allotted to the respondent prior to commencement of Act 57 of 1988 and the same was sold by the respondent by way of a sale deed dated 24.9.2000.
35. During the evidence of the applicant no document has been produced to prove that the apartment no. A212 at Narwana Apartments, Plot no. 89, Patpar Ganj, Delhi was ever allotted to the respondent Om E. No. 07/09 Page no. 18 of 22 Prakash or he got vacant possession of the same. No document has been produced to show that the apartment no. A212 at Narwana Apartments, Delhi has been built or got built by the respondent.
36. In so far as the building of apartment no. A211 or acquiring its possession is concerned, it appears, that the whole case of the applicant is based on documents Ex. A/3 which came in possession of the brother of the applicant in presence of the applicant and which is dated 19.7.1989.
37. However, a perusal of the testimony of RW1 Mr. Prahlad Rai Gupta, RW3 Mr. Pawan Kumar Sharma, who brought the original record pertaining to flat no. A211, Narwana Cooperative Group Housing Society Ltd, Plot no. 89, IP Extension, Patpar Ganj, Delhi and document Ex. DW1/3 reveals that the flat no. A211, was allotted to the respondent in the month of June, 1988 and possession of the said flat bearing no. A211 was taken on 03.7.1988. From the testimony of RW1 Mr. Prahlad Rai Gupta and RW3 Mr. Pawan Kumar Sharma it also becomes obvious that the flat no. A211 was not built by the respondent and instead the same was got built by the Narwana Cooperative Group Housing Society Ltd.
38. The court takes judicial notice of the fact that Act 57 of 1988 whereby clause (hh) was inserted in proviso to subsection (1) of section 14 of Act 59 of 1958 came into effect on 01.12.1988 and eviction under the said clause can only be sought of the premises which were built after coming into effect of the said amending Act on 01.12.1988. As in the E. No. 07/09 Page no. 19 of 22 present case from the testimony RW1 Mr. Prahlad Rai Gupta, RW3 Mr. Pawan Kumar Sharma and document Ex. DW1/3 it has been established that the flat no. A211 was built prior to 01.12.1988 and the possession of the same was also taken prior to coming into effect of Act 57 of 1988, therefore, this court is of the view that the applicant has failed to prove the ground of eviction mentioned in clause (hh) of proviso to subsection (1) of section 14 of Act 59 of 1958.
39. The other ground for eviction of the tenant is the ground enumerated in clause (d) of proviso to subsection (1) of section 14 of Act 59 of 1958.
40. Under clause (d) a landlord can recover possession of a premises let out for residential purpose, if neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application for the recovery of the possession thereof. Thus, to recover possession on the ground mentioned in clause (d), the applicant herein is bound to prove that the respondent or his family members were not occupying the premises after 05.12.2002.
41. In paragraph no. 8 (a) of the application the applicant has stated that the premises were let out for residence of the respondent but neither he nor any member of his family had been residing in the premises for a period of six months immediately before the date of the filing of this E. No. 07/09 Page no. 20 of 22 application i.e. 05.06.2003. In corresponding paragraphs of the written statement the respondent had denied the averments made by the applicant.
42. In proof of the ground of eviction prescribed in clause (d) of proviso to subsection (1) of section 14 of Act 59 of 1958 only one witness was produced on behalf of the applicant, that is, the applicant himself, who during his examination in chief has nowhere made a positive statement to the effect that neither the respondent nor any member of his family had been residing in the premises for six months immediately preceding the presentation of the present application for eviction. In the last line of paragraph no.8 of his affidavit Ex. A1 AW1 Mr. Pran Nath Chopra has deposed that the deceased respondent and his family has been residing in the residential flats bearing no. A211 and 212, Narwana Apartments, Plot no. 89, Patparganj, Delhi but the same is mere repetition of the language used in paragraph no.18 (a) (i) of the application. Such application cannot be treated as a statement to the effect that during the period 05.12.2002 to 04.06.2003 the respondent or any of his family members was not residing at the premises.
43. During his examination in chief RW1 Mr. Prahlad Rai Gupta has deposed that his father was residing at the premises till his death in the year 2007.
44. Since the applicant has not led any evidence on this aspect of the case therefore, I hold that the applicant has also failed to prove the E. No. 07/09 Page no. 21 of 22 ground of eviction as mentioned in clause (d) of proviso to subsection (1) of section 14 of Act 59 of 1958.
45. In view of my above discussion it is held that the applicant has failed to prove any of the ground of eviction mentioned in his application. The application is dismissed with costs. File be sent to records.
Announced in the open court (Manoj Kumar)
on this 09 day of February, 2012 Rent Controller : New Delhi
th
09.02.2012
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