Delhi District Court
Smt. Manjit Kaur vs Sh. P. L. Kharbanda (Deceased) on 20 October, 2018
IN THE COURT OF SH. AJAY NAGAR, COMMERCIAL CIVIL
JUDGE-CUM-ADDITIONAL RENT CONTROLLER (WEST),
TIS HAZARI COURTS, DELHI.
ARC No: 25922/2016
1. Smt. Manjit Kaur
W/o Sh. S.S. Lamba
2. Dr. Jaspreet Singh Lamba
S/o Sh. S.S. Lamba
Both R/o C-140
Sarvodaya Enclave
New Delhi-110017
Through their attorney Sh. S.S. Lamba
S/o Late Sh. Jaswant Singh.
....Petitioners
VERSUS
Sh. P. L. Kharbanda (Deceased)
through legal representatives
1. Sh. Vikram Kharbanda
S/o Late Sh. P.L. Kharbanda
R/o J-13/51, Rajouri Garden
New Delhi.
2. Sh. Tagore Kharbanda
S/o Late Sh. P.L. Kharbanda
R/o C-3/31, Janakpuri
New Delhi.
3. Smt. Janak Gambhir
W/o Sh. Avinash Gambhir
R/o C-611, Sushant Lok I
Gurgaon.
4. Smt. Avinash
W/o Sh. Anand
R/o 17/165, IInd Floor
Subhash Nagar
New Delhi.
ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 1 /55
5. Smt. Ramma
W/o Late Sh. Ved Prakash Khullar
R/o M-9, Vikaspuri
New Delhi.
....Respondents
Date of Filing : 13.04.2005
Date of Judgment : 20.10.2018
JUDGMENT
1. Brief facts of the present case are that on 13.04.2005, the petitioners filed a petition U/S 14 (1)(h) of the Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act") praying to this court to pass an eviction order in favour of the petitioners and against the respondents (hereinafter referred to as "respondent") in respect of the premises i.e. J-13/51, Rajouri Garden, New Delhi (hereinafter referred to as "tenanted premises").
2. The case of the petitioners is that previously Sh. Kailash Chander Malhotra S/o Late Sh. Daulat Ram was the Sole Owner and Landlord of the premises No. J-13/51, Rajouri Garden, New Delhi and the respondent was the tenant under said Sh. Kailash Chander Malhotra. It is further averred that the said previous owner Sh. Kailash Chander Malhotra sold, transferred the said entire tenanted premises in favour of the petitioners by duly registered Sale Deed dated 19.11.2004. And the effective proprietary possession of the entire tenanted premises and physical possession of the common areas and exclusive possession of the stairs from first floor to mumty and terrace of the first floor was delivered to the petitioners and keys of the lock of the doors to the terrace was also delivered to the ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 2 /55 petitioners by previous owner and landlord Sh. Kailash Chander Malhotra. Therefore, the petitioners have become the owners and landlords of the tenanted premises. That the rate of rent of the tenanted premises is Rs. 600/- per month. That the House No. J-13/51 comprises ground floor and first floor, terrace and mumty. That the tenanted premises were let out as per Rent Note dated 04.12.1967 and 04.08.1968 for residential purpose and subsequently only 3rd room at first floor was also given. The entire ground floor along with fixtures and fittings, light connection and water connection was let out to respondent for residential purposes only. That subsequently, vide Rent Note dated 04.08.1968, duly executed by the respondent, only two rooms at the first floor along with fixtures and fittings were let out to him for residential purpose only. It was clearly stated that respondents had no concern with the 3rd room at the first floor.
It is further averred that subsequently the third room only at First Floor was allowed to be occupied by the respondent @ Rs. 90/- per month and since then, the rent of ground and first floor, other than the terrace, payable by the respondent has been Rs. 600/- per month.
It is further averred that the terrace of the tenanted premises is not in the tenancy of the respondent. However, to confuse the issues and complicate the controversy and keep the petitioners entangled in the long drawn litigation, the respondent initiated a civil litigation of frivolous nature on the usual ground of apprehension of being dispossessed by force. But as per the claim of petitioners the same has been held by the Hon'ble High Court that what was let out to the respondent was the ground floor and first floor of the tenanted premises. However, in order to cut short the controversy regarding the ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 3 /55 tenancy portion, this petition is restricted to what is mentioned in the written rent notes and including the third room at the 1 st floor, but in case it is held that the terrace above the 1 st floor is also a part of the tenancy of the respondent, then this eviction petition may be treated for the entire premises bearing No. J- 13/51, Rajouri Garden, New Delhi along with the terrace, but it may not be treated as an admission of the fact that subsequently the terrace has been admitted to be in the tenancy of the respondent.
It is further averred that recently the petitioners have come to know that the respondent has acquired vacant possession for residence and has been allotted the property bearing No. C-3/31, Janakpuri, New Delhi (hereinafter referred to as "allotted property"), built on plot measuring 126 square meter having ground, first and second floors and the respondent along with his family is living in the allotted property.
It is further averred that a true copy of the perpetual lease deed in the name of respondent, a true copy of electricity bill in the name of the respondent for the months December, 2004 and January, 2005 as well as true copy of voter list of Janakpuri Assembly Constituency have been filed by the petitioners which clearly show that the respondent, his wife, son of the respondent and daughter-in-law are living in allotted property.
It is further averred that vide PORS No. TAX/WZ/96/4472 dated 13.03.1996 of Municipal Corporation of Delhi, pertaining to the allotted Property in the respondent's name, the rateable value of the allotted property was revised vide order dated 18.02.1996 to Rs. 54,700/- w.e.f. 01.01.1993.
As such, as per the claim of petitioners, the respondent has, after the commencement of D.R.C. Act acquired the vacant ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 4 /55 possession or been allotted a residence i.e. allotted property in terms of Section 14(1)(h) of D.R.C. Act.
It is further mentioned that vide Power of Attorney dated 22.12.2004, Sh. S.S. Lamba, the husband of petitioner No. 1 and father of petitioner No. 2 is authorised to sign, verify and file all kinds of plaint, petition etc. in any court on behalf of the petitioners. Hence, the petitioners have prayed that an eviction order in respect of tenanted premises may be passed in favour of petitioners and against the respondent.
3. Perusal of the record shows that the Written Statement was filed by the respondent on 02.06.2005 inter-alia contending that the petitioners are placing their reliance on the rent deed dated 04.08.1968 having page no. 26 to 28, which is incomplete and petitioners have deliberately and malafidely not annexed the last page. As such, the respondent reserves his right to file additional written statement whenever the complete rent note dated 04.08.1968 are supplied to the respondent.
In his written statement, the respondent took the preliminary objections that the present petition has been filed by Sh. S.S. Lamba on behalf of Smt. Manjit Kaur and Dr. Jaspreet Singh on the basis of their attorney dated 22.12.2004 but as per the contents of the attorney, no authorization has been issued by Mrs. Manjit Kaur and Dr. Jaspreet Singh in favour of Sh. S.S. Lamba to file the present petition. As such, Sh. S.S. Lamba is not competent to institute the present petition and in consequence thereof, the present petition is liable to be dismissed on this ground alone.
That the petitioners have placed their reliance on two rent notes dated 04.12.1967 and 04.08.1968 and as per the ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 5 /55 petitioners, two tenancies were created in respect to one unit i.e. different tenancy in respect to different portions of one unit and the present petition is bad for mis-joinder for cause of action and is liable to be dismissed on this ground alone.
It is further contended by the respondent that as per the lease deed annexed by the petitioners along with the petition is of the year 1968 and the present petition has been filed in the year 2005. As per the claim of respondent in view of settled law and various judgments passed by the Hon'ble Supreme Court of India, this petition is beyond the period of limitation and liable to be dismissed on this ground alone.
It is claimed by the respondent that the present tenanted premises were let out to the respondent for commercial purposes. That Smt. Ram Rakhi, who was the landlady initially had given the ground floor of the suit property on rent to the respondent and permitted the respondent to use it for commercial purposes and allowed the respondent to run education, coaching of students and use the premises commercially. Thereafter, when the business of respondent started flourishing, respondent requested to Smt. Ram Rakhi for further space and Smt. Ram Rakhi agreed to let out the rest of the premises to the respondent for the supervision of coaching center as well as for the expansion of the school in rest of premises and use the premises for commercial purposes. It is further averred that Smt. Ram Rakhi along with her son Sh. K.C. Malhotra (previous landlord Sh. Kailash Chand Malhotra) visited several times at the tenanted premises and the petitioners have several correspondence to this effect.
It is further submitted that after the demise of Smt. Ram Rakhi, tenanted premises devolved upon her son namely, Sh.
ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 6 /55K.C. Malhotra and he vide letter dated 02.04.1976 asked the respondent to sign fresh rent note and as per his instructions, respondent signed the fresh rent note in which permission was continued by Sh. K.C. Malhotra for running a school at the tenanted premises and the said rent note is in care and custody of Sh. K.C. Malhotra.
It is further submitted that the tenanted premises were inspected on several occasions by the official of the MCD and provisional recognition was granted to the school run by the respondent on the basis of 'no objection' issued by Sh. K.C. Malhotra as it was mandatory to obtain NOC from the landlord to run school. Sh. K.C. Malhotra always signed the same as the tenanted premises were let out to the respondent for commercial purposes.
It is contended by the respondent that Sh. K.C. Malhotra has sold the tenanted premises to the present petitioners vide sale deed dated 19.11.2004 and from the very first date respondent was harassed by all of them, resulting the respondent to file a suit for injunction.
It is further submitted that the present petitioners and previous landlords in their pleadings have not denied the running of the Coaching Centre for nursery students.
It is further submitted that the present petitioners have purchased the tenanted premises on 19.11.2004 from Sh. K.C. Malhotra (previous landlord) through sale deed dated 19.11.2004 and even as per sale deed, the tenanted premises have been shown under the tenancy of the present respondent but the same is silent on the purpose of its use and same is deliberately not mentioned in order to harass the respondent.
It is further submitted that there is no cause of action in ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 7 /55 favour of the petitioners and against the respondent. Therefore, the present petition is liable to be dismissed.
On merits, it is inter-alia submitted by the respondent that the complete tenanted premises consisting of ground floor, 1 st floor and its room were rented out to the respondent from the inception of the tenancy.
4. Thereafter, replication was filed by petitioners wherein the petitioners denied the stand taken by the respondent and reiterated original stand taken in the petition.
Petitioners inter-alia stated that para No. 2 of the preliminary objections is wrong and not admitted. The said executor namely Smt. Manjeet Kaur and Dr. Jaspreet Singh have conferred upon the attorney namely Sh. S.S. Lamba to file all kinds of cases in any court.
Petitioners also did not admit para No. 3 of the preliminary objections and stated that the tenanted premises merged into one tenancy on account of the conduct of the respondent himself. Even otherwise, one petition for the tenanted premises is maintainable as the same questions of facts and law are involved. Even the respondent throughout continued to pay a consolidated rent for both the premises and never treated them as different or separate tenancies.
The petitioners have denied that there is no cause of action and it is wrong to allege that the present petition is beyond the period of limitation. A true copy of the freehold conveyance deed of property No. C-3/31, Janakpuri, New Delhi, dated 06.05.2002 has also been filed.
It is stated by the petitioners that in the documents by which the respondent was let out the premises initially and later ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 8 /55 on also, the purpose of letting was specifically mentioned as residential and it was never changed by any contract and the contract remained the same through out. It is further stated that the respondent simplicitor asked the previous owner and landlord to allow them to use the premises for some educational coaching of the students, but being conscious of the fact about the user of the premises, it was categorically mentioned that the premises will be used for residence of the respondent, his wife and four children and none else. Not only this, it is also stated that in the rent note that the premises had been let out for residential purpose.
It is averred that even otherwise, as per he two rent notes which were executed between the previous landlord of the respondent though permission to use for some educational coaching was given, but the purpose of letting was specifically mentioned and it always remained residential. So far as user is concerned, in the suit filed by the respondent bearing Suit No. 207 of 2004, the respondent only mentioned that he is running a coaching centre for nursery students and children of tender age, etc. Not only that so far as the letting was concerned, the respondent categorically stated that the suit property consisting of ground floor and first floor was let out in 1967 and from time to time rent was revised.
It is wrong to allege that the provisional recognition was granted by the MCD to run the school at the premises in question. It is further wrong to allege that any 'no objection certificate' was issued by Sh. K.C. Malhotra. It is stated that the house tax assessment of the house in question was done by the MCD on residential basis. It is averred by the petitioners that no recognized or unrecognized or any classes were ever ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 9 /55 run at the premises in question. Even if some coaching classes were ever run for some time, then the same would not make the purpose of letting as commercial as the Senior Secondary School having classes from 1st to 12th was/is being run at Mayapuri. Therefore, it is wrong to suggest that any school was being run at J-13/51, Rajouri Garden, New Delhi.
5. Thereafter, evidence was led by both the parties. The petitioner examined Sh. Suresh Kumar, Head Clerk, MCD, Education Department, as PW-2. PW-2 relied upon the document viz. The list of schools recognized by MCD in West Zone which was marked as Ex. PW-2/2 (objected to as mode of proof).
Petitioner also examined Sh. Suresh Kumar from MCD as PW-2 to prove the document Ex. PW-1/11 a letter, Rent Note dated 04.12.1967 Ex. PW-2/1, list of schools Ex. PW-2/2.
Petitioner also examined Sh. Anil Kumar, UDC, Office of Sub-Registrar-II, Janakpuri, Delhi as PW-3, who proved the sale deed registered.
Petitioner also examined PW-4 Ms. Paramjeet Kaur, E.O. Zone-15, District West A, Karampura, Delhi who proved the letter dated 30.08.2005 as Ex. PW-4/1 and letter dated 25.08.2005 as Ex. PW-4/2 (Objected to by Ld. Counsel for respondent on the ground that it is photocopy and not original document and hence cannot be exhibited).
Petitioners examined Sh. Kailash Chand Malhotra as PW-5, who proved the documents marked as Ex. PW-2/1 (Rent Note dated 04.12.1967) and Ex. PW-2/2 dated 04.08.1968 (OSR).
Petitioners also examined Sh. S.S. Lamba as PW-6 who ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 10 /55 relied upon the documents viz. Power of Attorney as Ex. PW- 1/1, Copy of Sale Deed dated 19.11.2004 as Ex. PW-1/2, Rent Note dated 04.12.1967 as Ex. PW-1/3, Rent Note dated 04.08.1968 as Ex. PW-1/4, the original of Property Tax Bill and Tax payment receipt as handed over to the petitioners by the previous landlord are annexed as marked as Ex. PW-1/5 to PW-1/7, Certified copy of order dated 24.12.2004 passed by Ld. Civil Judge on interim application in some other suit as Ex. PW-1/8, Certified copies of the orders dated 29.12.2004, January, 2005, February 10, 2005 and 16 th Feb. 2005 are Ex. PW-1/9 (Colly.), in a suit filed by the petitioners against the respondent, an order dated 19.04.2005 was passed, certified copy of which is Ex. PW-1/10, Two letters dated 22.08.2005 Ex. PW-1/11 and letter dated 16.11.2005 Ex. PW-1/12 and another letter dated 30.08.2005 through which information was sought by the attorney of the petitioner in exercise their right under RTI sought various information regarding any school at premises J- 13/51, Rajouri Garden, New Delhi-27 in general and also by the name of Tagore School in particular is being run or not.
All the witnesses were cross examined at length and the petitioners closed their evidence.
Respondent examined Sh. Vikram Kharbanda as RW-1 who relied upon the documents viz. Certified copies of the Survey Report along with amendment of assessment of House Tax, the same are exhibited as Ex. RW-1/1 to RW-1/3. Sh. Vikram Kharbanda also led his evidence by filing of additional evidence by way of affidavit. He relied upon the copy of the letter as Ex. RW-1/1, and copy of another letter Ex. RW-1/2, copy of other letter dated 10.01.1977 as Ex. RW-1/3 received ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 11 /55 from Rabindra Education Society. The Principal of Tagore School received a letter dated 27.10.1977 from the Time of India, which is Ex. RW-1/4 (already Ex. RW-9/A), copy of leave travel concession form, copy of the said letter is Ex. RW-1/5. A letter dated 07.04.1986 addressed to the Chairman, DTC by the Tagore School, which is Ex. RW-1/6 ((already Ex. RW-10/A). Letter dated 14.08.1987 and 20.10.1987 received by the Traffic Suptd. (DTC) from the Tagore School are Ex. RW/7 (already Ex. RW-10/E) and Ex. RW/8. A letter dated 03.05.1986 received by the Tagore School at J-13/51, Rajouri Garden, New Delhi from the Traffic Suptd. (DTC) as Ex. RW-1/9 (already Ex. RW-10/B). Another letter dated 25.08.1987 received by the Tagore School at J-13/51, Rajouri Garden, New Delhi from DTC which is Ex. RW-1/10 (already Ex. RW-10/C). Letter dated 10.08.1987 to the Traffic Suptd. (DTC) from office of Education Officer is Ex. RW-1/11 (already Ex. RW-10/D. A letter dated 14.10.1987 received by the Manager, Tagore School from DTC is Ex. RW-1/12(already Ex. RW-10/F). A letter dated 26.02.1981, copy of the same is Ex. RW-1/13 (OSR)(already Ex. RW-11/1). The letter of upgradation of the school dated 27.12.1985, copy of the same is Ex. RW-1/14 (already Ex. RW-11/3) and a letter dated 26.07.1988 as Ex. RW-1/15.
RW-1 also relied upon the documents Ex. RW-1/1, RW- 1/2, RW-1/3, RW-1/8 and RW-1/15 in his additional affidavit. (These 05 documents are objected to by Ld. counsel for the petitioner on the ground of mode of proof.
Respondent also examined RW-2 Sh. Raj Bahadur as RW-2, who has relied upon the documents Ex. RW-2/1 and Ex. RW-2/2 respectively.
Respondent also examined Mr. Tagore Kharbanda.
ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 12 /55Respondent also examined RW-3 Sh. Surjit Singh, LDC from House Tax Department, MCD, who has relied upon the documents Ex. RW-3/1 to Ex. RW-3/6. Respondent also examined Sh. Ramesh Kumar as RW-4, who proved the record of water connection as Ex. RW-4/1. Respondent also examined Sh. Paramjit Singh as RW-5, who proved the current account opening form as Ex. RW-5/1. Respondent also examined Sh. Satish kumar as RW-6, who proved the Memorandum of Rabindra Educational Society and registration certificate as Ex. RW-6/A (colly.). Respondent also examined Sh. Sanjiv Narang as RW-7, who proved the documents namely an affidavit of Smt. Janki Devi, the then Secretary of the Tagore School dated 13.03.1980 and the copies of the above documents as Ex. RW- 7/A (colly.- containing 1 to 15 pages). Respondent also examined Ms. Veena Sikka as RW-8, who proved the original of letter dated 17.01.1982 for the coverage of the Tagore School under PPF, copy of the said letter is Ex. RW-8/1. The letter dated 29.07.2003 from Tagore School as Ex. RW-8/2. Another letter of the school dated 25th September year torn off, receipt with reference to letter dated 13.09.1959 as Ex. RW-8/3. Another copy of the letter of the school dated 21.11.2011 as Ex. RW-8/4. Originals of Form 6A from 1982 onwards which are Ex. RW-8/5 (Colly- pages 1-95). Respondent also examined Shri Bhagwan as RW-9, who proved the letter dated 27.10.1997 which is Ex. RW-9/A. Respondent also examined Sh. Ishwar Kr. Chandwani as RW-10, who proved the letter dated 07.04.1986 as Ex. RW-10/A, the letter dated 03.05.1986 as Ex. RW-10/B, the letter dated 25.08.1987 as Ex. RW-10/c, the letter dated 10.08.1987 as Ex. RW-10/D, the letter dated 14.08.1987 as Ex. RW-10/E, the letter dated 14.10.1987 as Ex. RW-10/F. ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 13 /55 Respondent also examined Dr. Mallikarjun K.S. as RW-11, who proved original office copy of letter dated 26.02.1981 as Ex. RW-11/1 (OSR), original letter dated 26.02.1981 as Ex. RW- 11/2, copy of letter dated 27.12.1985 as Ex. RW-11/3, copy of letter dated 03.10.1979 as Ex. RW-11/4 (OSR).
All the witnesses were cross examined by the Ld. Counsel for the petitioners at length.
It is pertinent to mention that vide order dated 20.12.2016 some documents filed by the respondent were allowed to be taken on record and vide order dated 17.05.2017, the said documents were exhibited as under:-
1. Certified copy of statement of Dr. Mallikarjun K.S. dated 01.04.2016, PW-7 (suit no. 378/13) is Ex. RX-1;
2. Certified copy of the letter dated 31.03.2016 is Ex. RX-2;
3. Certified copy of the letter dated 26.02.1981 is Ex. RX-3;
4. Certified copy of the letter dated 30.07.1983 is Ex. RX-4;
5. Certified copy of proforma for up-gradation Ex. RX-5;
6. Certified copy of site plan already exhibited in suit no. 378/13 as Ex. PW-7/4 is Ex. RX-6;
7. Certified copy of site plan already exhibited in suit no. 378/13 as Ex. PW-7/5 is Ex. RX-7;
8. Certified copy of site plan already exhibited in suit no. 378/13 as Ex. PW-7/6 is Ex. RX-8;
9. Certified copy of letter dated 27.12.1985 is Ex. RX-9.
It is also pertinent to mention that vide order dated 22.08.2017, the documents which had tendered by PW-6 Sh.
S.S. Lamba were re-exhibited as PW-6/1 to PW-6/13 (except PW-6/3 and PW-6/4 as both the documents have already been exhibited as PW-2/1 and PW-2/2). Further, the documents exhibited in examination in chief of PW-6 were ordered to be ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 14 /55 read as PW-6/1 to PW-6/13 instead of PW-1/1 to PW-1/13. Further, Ex. PW-6/3 and PW-6/4 had not been exhibited as they were already exhibited as PW-2/1 and PW-2/2.
It is further pertinent to mention that vide order dated 16.10.2017 passed by Ld. Predecessor of this court, the documents Ex. PW-2/1 (copy of rent note dated 04.12.1967) and PW-2/2 (copy of rent note dated 04.08.1968) were ordered to be read over as Ex. PW-5/1 and PW-5/2 respectively.
It is also pertinent to mention that Sh. Surjit Singh was ordered to be read as RW-3 and nomenclature of the documents, if any, exhibited by RW-3 was changed accordingly. Further, the witness Sh. Tagore Kharbanda was ordered to be read as RW-3A.
6. I have heard the arguments advanced by all the parties at very length and carefully perused the entire record as well as the judgments relied upon by all the sides.
Ld. Counsel for the petitioners submits that petitioners are the owners of the suit property of the tenanted premises as they purchased it from previous landlord Sh. K.C. Malhotra vide registered sale deed Ex.PW1/1 executed on 19.11.2004. He further submits that the tenanted premises was purchased jointly by previous owner Smt. Ram Rakhi and her son Sh. K.C. Malhotra in 1967 from Sh. Malkiyat Singh. It is further submitted that Sh. P.L. Kharbanda was the single tenant and tenancy was created vide rent notes. He submits that after the death of Smt. Ram Rakhi in 1993, Sh. K.C. Malhotra became sole owner of the tenanted premises and the tenanted premises was purchased by the petitioners from Sh. K.C. Malhotra. It is further submitted that the tenant/respondent has acquired ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 15 /55 vacant possession for residence as laid down in Section 14(1)
(h) of DRC Act. It is further contended that respondent has not denied such acquisition of property no. C-3/31, Janakpuri, Delhi. He also submits that the tenanted premises was let out for residential purposes only and not for commercial purpose or for mixed purposes. He relies upon two rent notes executed in 1967 and 1968 which were proved by Sh. K.C. Malhotra in his evidence. Ld. Counsel for the petitioner relies upon the various documents placed on record and also large number of judgments of Hon'ble Apex Court and Hon'ble High Court of Delhi to support the case of petitioners. He argues that when purpose of letting out is established by the written agreed terms and conditions of rent notes, there is no question of looking into oral evidence for the purpose of establishing letting out. It is also contended by the Ld. Counsel for the petitioners that landlordship as well as ownership of the petitioners have not been disputed by the respondent. Moreover, acquisition of new residence has also been admitted by the respondent in the present case. Ld. Counsel for the petitioner has also relied upon the testimonies of all the witnesses on record. As such, it is contended by the Ld. Counsel for the petitioners that all the ingredients of 14(1)(h) are satisfied and the respondent may be evicted for the tenanted premises.
Lastly, the Ld. Counsel for the petitioners prays to the court to pass the eviction petition order against the respondent.
On the other hand, Both the Ld. Counsel for the respondent submit that the petitioners have filed the present eviction petition within six months of alleged purchase of the tenanted premises. Both the Ld. Counsel for the respondent further submit that deceased respondent Sh. P.L. Kharbanda ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 16 /55 have taken the premises for running a school I.e. for commercial purposes as he was already running a school in the name of Tagore School at V-255, Rajouri Garden, New Delhi. Both the Ld. Counsel for the respondent further submit that Sh. Ram Rakhi who was the erstwhile owner let out ground floor of the tenanted premises to the respondent and later on she agreed to let out entire premises for commercial purposes. The said school in the name of Tagore School started functioning from the day one when the ground floor was let out. It is further contended that erstwhile landlord never objected to running a school in the tenanted premises and the sale deed dated 19.11.2004 also shows that the tenancy of Sh. P.L. Kharbanda. Both the Ld. Counsel for the respondent argue that the rent note I.e. Ex.PW5/1 and Ex.PW5/2 have been relied upon by the petitioners but it is claimed that the rent note dated 04.08.1968 is an incomplete and unregistered documents. It is also argued that landlord created three tenancy in favour of tenant and in view there of the petition is not maintainable. It is further claimed that the site plan is not filed by the petitioner along with the petition. Both the Ld. Counsel for respondent have relied upon the number of documents placed on record to prove the contention that the respondent was running the school in the tenanted premises within the knowledge of previous landlord. It is further contended that the previous landlord never objected to running of school in the tenanted premises. It is claimed that the purpose of letting out was commercial purpose only and not for residential and the school was running w.e.f. 01.12.1967 when the premises was taken on rent by late Sh. P.L. Kharbanda. Both the Ld. Counsel for the respondent have also relied upon the testimonies of all the witnesses on record. Both ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 17 /55 the Ld. Counsel for the respondent have relied upon a plenty of judgments of Hon'ble Apex Court and Hon'ble High Court of Delhi to support the case of respondent.
Lastly, both the Ld. Counsel for the respondent pray to the court to dismiss the eviction petition of the petitioners with cost.
7. LANDLORDSHIP:-
Perusal of record reveals that landlordship/ownership of the petitioners have not been disputed by the respondent in the present case.
It is well settled that the admitted facts need not be proved. As such, it is proved on record that there exist the relationship of landlord and tenant between the petitioners and the respondent.
As such, landlordship of petitioners is proved.
8. SECTION 14(1)(h) OF D.R.C. Act:-
(h)."That the tenant has, whether before or after the commencement of this Act, acquired vacant possession of, or been allotted, a residence."
INGREDIENTS:-
(i). The Tenant has acquired a vacant possession of or been allotted, a residence.
(ii). The tenanted premises should have been let out for residential purpose only.ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 18 /55
9. Let us discuss the ingredients:-
(i). The Tenant has acquired a vacant possession of or been allotted, a residence:-
10. Perusal of U/S 14 (1)(h) of DRC Act reveals that the petitioner has to prove that the respondent/tenant has acquired vacant possession of a residence or he has been allotted a residence.
In case titled as Vardesh Chander Chanana vs Prem Nath And Ors., ILR 1981 Delhi 164; it was observed that:-
"The purpose of this provision is not to protect tenant if he has legally acquired another residence as of right. A tenant acquires vacant possession of a residence, if he has a right to move in the premises legally acquired by him and lying vacant. In other words, if vacant possession of the premises is available to a tenant and he has a right to occupy the same, it would mean that he has acquired vacant possession of the residence within the meaning of clause (h). Whether the acquired premises is suitable or not is not the requirement of law for the passing of an order of eviction. Thus it seems that if a tenant has a legal right to occupy the premises which he has inherited and which were lying vacant at the time of inheritance or thereafter, he is not entitled to protection under the Act. But if the tenant has no present right of moving into the residential house inherited by him though vacant, it cannot be said that such a tenant has acquired vacant possession of the premises."
11. Perusal of eviction petition reveals that in the instant case, the petitioners have alleged that respondent has acquired vacant possession for residence and has been allotted the property bearing No. C-3/31, Janakpuri, New Delhi and they built on plot measuring 126, sq. meter ground floor, first floor ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 19 /55 and second floor. It is also alleged by the petitioners that respondent along with his family is residing in this house no.C- 3/31, Janakpuri, Delhi. Moreover, the petitioners have also annexed the photo copy of perpetual lease deed in the name of respondent to substantiate their claim.
Furthermore, the petitioners have also placed on record the photostat copy of the electricity bill, voter list of Janakpuri Assembly Constituency, one document issued by MCD etc. to substantiate their claim that the respondent has acquired the vacant possession of the property for residence and respondent are actually residing therein.
I have carefully gone through the Written Statement filed by the respondent which reveals that the respondent has not denied to have acquired a vacant possession of residence as alleged by the petitioners.
12. As such, it is not disputed fact that respondent has acquired a vacant possession for residence as laid down in Section 14(1)(h) of DRC Act.
(ii). The tenanted premises should have been let out for residential purpose only:-
13. It is well settled that it is essential for eviction U/S 14(1)(h) of DRC Act that the tenanted premises should have been let out for residential purposes only.
The landlord will not be able to evict the tenant U/S 14(1)
(h) of DRC Act if the premises was given for commercial purposes. Moreover, Section 14(1)(h) is not applicable even to those cases in which the tenant was let out for mixed purposes such as residential cum commercial purposes.
ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 20 /55In Avinash Kaur vs Beli Ram , ILR 1970 Delhi 651; it was observed that :-
" The entire setting of clause (h) shows that it is the events happening during the tenancy which can provide a cause of action for the eviction of the tenant. We have no doubt in our mind that in clause (h) also the legislature intended that it is only act of building, acquisition of vacant possession or, allotment of a residence during the continuance of tenancy which can justify eviction of tenant."
It was further observed that :-
"Keeping in view the above principles in view, we are of the opinion that only reasonable construction which can be placed upon clause (h) is that it applies to those cases where the tenants builds, acquires vacant possession of, or is allotted a residence after the commencement of tenancy....."
We would therefore hold that a tenant would be liable to be evicted under the above clause only if during the tenancy he builds, acquires vacant possession of, or is allotted a residence."
In another case titled as Hari Shanker Gupta vs. Musaddi Lal 1970 RCR 783; it was observed that:-
"I have no doubt in my mind that it is an essential requirement of clause (h) that the premises from which the tenant is to be evicted, must be residential and not residential-cum- commercial and the premises which he acquires later on must also be residential and not residential-cum-commercial premises."
It was further observed that:-
"This question come up for consideration in two cases before this court in Shyam Sunder vs. Khan Chand 1966 DLT 223 and Revti Devi vs. ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 21 /55 Kishan Lal, 2nd appeal from order No. 92-B of 1964 reported in 1970 RCR 71. The question canvassed before me did not actually arise in the aforesaid two cases but the ratio of said decisions in the dates that if the tenant has acquired a legal right to occupy another residence, the operation of clause
(h) is attracted and he must vacate the tenanted premises, but if he does not have a legal right of his own to reside in the newly acquired premises but he lives at the mercy or courtesy of some other person, he cannot be required to vacate the tenanted premises under clause-h of the act."
In another case titled as Ganpat Ram Sharma & Ors vs Smt. Gayatri Devi 1987 SCR (3) 539; it was observed that:
"the position in law is that the landlord in order to be entitled to evict the tenant must establish one of the alternative facts positively, either that the tenant has built, or acquired vacant possession of or has been allotted a residence. It is essential that the ingredients must be pleaded by the landlord who seeks eviction but after the landlord has proved or stated that the tenant has built acquired vacant possession or has been allotted a residence, whether it is suitable or not, and whether the same can be really an alternative accommodation for the tenant or not, are within the special knowledge of the tenant and he must prove and establish those facts. The other aspect is that apart from the question of limitation to which we shall briefly refer is that the landlord must be quick in taking his action after the accru- al of the cause of action, and if by his inaction the tenant allows the premises to go out of his hands then it is the landlord who is to be blamed and not the tenant."
14. In view of the judgments of the Hon'ble High Court of Delhi and Hon'ble Apex Court, it is evident that ground for eviction mentioned in clause (h) applies only to premises which are let out for use as residence and the eviction on this ground ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 22 /55 cannot be sought on the premises let out for commercial use or for any other purpose i.e. mixed use.
15. In the present case, the claim of the respondent is that Section 14(1)(h) of DRC Act is not applicable as the tenanted premises were let out by the erstwhile owner Sh. K.C. Malhotra to the respondent for the commercial purposes only and not for residential purposes. Perusal of record reveals that the main issue to be determined by this court is whether the tenanted premises were let out to the respondent for residential purposes or commercial purposes or for mixed purposes i.e. residential cum commercial purposes.
16. I have minutely gone through the pleadings and material on record. It is inter alia stated that tap water, sanitary fittings and other fittings have been provided by the petitioners in the tenanted premises. It is further stated that the H. No. J-13/51, Rajouri Garden comprises ground floor, first floor, terrace and mamty. As per claim of the petitioners, terrace of the premises is not in the tenancy of respondent. It is claimed by the petitioners that petitioners purchased the entire property in question vide duly registered sale deed dated 19.11.2004, registered at 27583 in additional book no.1 volume 12162 at pages 41 to 49 dated 01.12.2004. It is also claimed by the petitioners that effective proprietary possession of the entire property and physical possession of common area and exclusive possession of the stairs from first floor to mumty and terrace of the first floor was given by previous owner Sh. Kailash Chander Malhotra.
17. On the other hand, I have also gone through the Written ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 23 /55 Statement of the respondent wherein it has inter-alia been contended that rent deed dated 04.08.1968 is incomplete and petitioners have deliberately and malafide have not annexed the last page of the aforementioned rent deed dated 04.08.1968. Respondent has further contended that Sh. S.S. Lamba is not competent to institute present petition and he is not authorised by the petitioners to file it. Respondent has also contended that the present petition is mis-joinder as two tenancies were created in respect of one unit as per the claim of petitioners. Respondent also claims that lease deed is of the year 1968 and petition was filed in 2005. As such, it is beyond period of limitation in view of various judgments of Hon'ble Apex Court.
Let us discuss the contentions :-
18. The eviction petition filed by the petitioners shows that petitioners have claimed to have let out the tenanted premises to the respondent for residential purposes and it is specifically mentioned by the petitioners in their eviction petition that premises are residential and were let out for residential purpose as per written rent note dated 04.12.1967 and 04.08.1968 wherein as per the claim of the petitioners purpose of letting out was specifically mentioned as residential On the other hand, Respondent has contended that the tenanted premises were let out for commercial purpose only. That Smt. Ram Rakhi who was landlady initially has given the ground floor of the subject premises/tenanted premises on rent to the respondent and permitted the respondent to use it for commercial purpose and allowed the respondent to run educational coaching of students and use the premises ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 24 /55 commercially and Smt. Ram Rakhi got agreed to let out rest of the premises for commercial use at the request of respondent for expansion of school.
Respondent has further contended that after the death of Smt. Ram Rakhi tenanted premises devolved upon her son Sh. K.C. Malhotra and Sh. K.C. Malhotra asked vide letter dated 02.04.1976 the respondent to sign fresh rent note and the respondent signed the fresh rent note in which permission was continued by Sh. K.C. Malhotra for running of school in the premises and aforementioned rent note is in custody of Sh. K.C. Malhotra and respondent prays to the court to direct Sh. K.C. Malhotra to produce such rent note.
It is further contended that 'No Objection Certificate' (NOC) was given by Sh. K.C. Malhotra to run the school in the tenanted premises and Sh. K.C. Malhotra always signed the same as the premises was let out for commercial purpose to the respondent.
It is further contended that several NOC were given by Sh. K.C. Malhotra and he never raised any objection to using it for commercial purposes. It is also contended that sale deed dated 19.11.2004 is silent on the purpose of its use though it has been shown under tenancy.
It is also submitted by the respondent that premises were let out for commercial purpose and the same is being used by the respondent.
Respondent has inter-alia contended that rent note dated 04.08.1968 is incomplete and petitioners have deliberately and malafide have not annexed the last page of the aforementioned rent deed dated 04.08.1968.
ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 25 /5519. It is expedient to reproduce the relevant paragraphs of certain case law which is as under:-
Y. Rajeshwari vs Bombay Tyres International Ltd. 37 (1989) DLT 22; (Relied upon by the petitioners) it was observed that:-
"It is settled law that if there is a written agreement between the parties showing the letting purpose unmistakably, then no other evidence is to be taken into consideration for determining the letting purpose except that if the letting purpose has been changed by any subsequent agreement, then the said agreement would govern the letting purpose."
It was further observed:-
"(8) Counsel for the respondent has referred to Smt. Kaila Devi v. Banarsi Das, 1980 (2) Rcj 139, wherein it has been rightly held that the very first requirement to be satisfied before a landlord can avail of the ground of eviction covered by Clause (e) of Sub-section (1) of Section 14 of the Act is that the premises have been let out for residential purpose and for determining the letting purpose the Controller is to ascertain the purpose for which the premises have been let out by the landlord and not the purpose for which the premises have been used by the tenant. There is no dispute about this proposition of law. What has to be determined present case is as to what has been the letting purpose agreed upon between the parties. The document of lease, in my view, clearly showed that's premises have been let out for residential purpose only and the evidence discussed above with regard to reason for grant of increase of rent, in my opinion does not clinch the fact that there has been any agreement of the petitioner for changing the letting purpose from residential to commercial purpose."
It was further observed that:-
"It has been rightly held in M/s. Flow more Private Limited v. Keshav Kumar Swarup, 198 3 (1) RCJ-113 (SN), that where there is a written agreement ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 26 /55 showing the letting purpose, a reference to situation or locality or how the premises have been built and used is not necessary and in the present case also the letting purpose as has been agreed upon between the parties deductible from the lease deed is residential. So, there does not arise any occasion for making reference to the locality and the other properties in the vicinity to determine the letting purpose. So, I reverse the finding of the Controller in this respect and hold that it was proved that the premises have been let out only for residential purposes."
In another case titled as Inder Singh Ahiuwalia vs Prem Chand Jain And Ors. 1993 (25) DRJ 147; (Relied upon by the petitioners) it has been observed as under:-
"(14) Learned counsel for the respondent has contended that there is no conflict between Clause 9 and Clause 18 of the lease-deed, that the former is qualified by the latter, and that the two are to be read together. He has placed reliance upon decision of the Privy Council in Probes V. Git and others, Air 1921 P.C.209. Indeed, in this case, the principle of law is succinctly stated in these words:- "IF in a deed an earlier clause is followed by a later clause which destroys altogether the obligations created by the earlier clause, the later clause is to be rejected as repugnant and the earlier clause prevails.........But if the later clause does not destroy, but only qualifies the earlier then the two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole."
It is further observed:
"(19) The lease-deed Ex.PW-1/3 contains a clear covenant restricting use of the premises "for residence only". No other evidence can be looked into for ascertaining the letting purpose. Even otherwise, the Controller is right in holding that the circumstances like the income-tax assessment order, electricity and water bills and entries in the telephone directory etc. showing the premises as office of the tenant's firm P.C. Jain & Sons do not establish that ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 27 /55 the premises were let for residence-cum- office purposes. It is well established by a number of decisions including Waryam Singh Duggal V. Smt. Savitri Devi, 1984(1) R.L.R.428 and Suresh Ch. Jain V. Vinesh Ch. Sheth, 1986 R.L.R.17 that putting up signboards in the name of the tenant firm, getting telephones in the Firm's name or opening bank accounts giving residential address or receiving business letters at the residential address does not establish the letting purpose or the actual user of the premises for purposes other than residential."
In case titled as S.K. Gupta Vs. R.C. Jain AIR 1984 Delhi 187; (Relied upon by the petitioners) it was observed as under:-
"23. The purpose of letting U/Sec. 14(1)(e) of the Act is to be determined as on the date when the premises were let i.e. 21st August 1973 to the respondent. Even license officer upto 30 th June, 1975 and started business from 1 st July, 1975. In this case it is immaterial if the respondent has changed the user without the consent of the petitioner. There is no plea that he ever used the suit premises for commercial purposes with the consent of the petitioner. If the premises were inspected on 14 th January, 1982 and the respondent was found to have an office it would not prove that the letting purpose of the premises was commercial and residential at the time when it was let out in August, 1973. The fact that the respondent and his family shifted from suit premises in August, 1978 is not denied. It is possible that after the vacations of the injunction by the civil court restraining him from converting the user,the respondent established office. The Additional Controller, in my opinion unnecessarily visited the premises."
In another case titled as M/S Precision Steel & Engg. Works & Anr Vs. Prem Deva Niranjan Deva Tayal [2002] Insc 525; (Relied upon by the petitioners) it was observed by the Hon'ble Supreme Court as under:-
ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 28 /55"It is not the case of the appellants that any business activity is being carried out in the suit premises or was permitted to be carried on or was included within the purposes of letting. Once the terms of tenancy have been reduced into writing the purpose of tenancy has to be determined by reading the relevant clauses of the deed and extrinsic evidence making a departure from the terms of deed may not be admissible. In case of doubt or vagueness resort can be had to other factors such as constructional features of the premises, their location, the amenities available, the conveniences provided, the number of rooms and the actual user to which the premises have been subjected. The opening and governing part of Clause 6 is couched in a mandatory form 'the licensee shall use the premises for the residence of the directors, partners and officers'. In the succeeding sentence the use of word 'however' is suggestive of the fact that incidental user of the tenancy premises for the office purpose also was permitted by the landlord. Such incidental user is permissive and not purposive. And that too has been made dependent on the permissibility determinable by reference to the laws governing the local authority. It is not disputed that the provisions of Delhi Development Act, 1957 and the Delhi Municipal Corporation Act, 1957 do apply to the locality where the tenancy premises are situated."
In case titled as Shri Satyendra Kumar Sharma vs Shri Jitender Kudsia, 119 (2005) DLT 498; (Relied upon by the petitioners) it was observed by Hon'ble High Court as under:-
"7. The moot point for consideration in this case is whether in all cases where property is let out for mixed user the landlord is dis-entitled from claiming eviction under section 14(1)(e) of the Act? The consistent view of this court and the apex court has been that where the premises have been let out for mixed user, the court will have to ascertain what was the dominant purpose/user. If the court comes to the conclusion that the dominant purpose/user was residential and commercial user was only permissive and not purposive, then the purpose of letting remains residential and therefore landlord will be ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 29 /55 entitled to seek eviction under section 14(1)(e) of the Act."
It was further observed:
"8. Another argument raised on behalf of the tenant was that explanation to clause 14 (1) (e) of the Act, lays down if the premises were let out for residential purpose, even if the tenant subsequently started using the premises for some incidental commercial purpose without the consent of the landlord, that would not alter the purpose of letting. It was, therefore, argued on behalf of the tenant that if in a given case the evidence suggests that the premises were put to non-residential use with the content of the landlord, it will take premises out of the expression "premises let out for residential purpose".
The Supreme Court negated this argument with the observation that the enactment of the explanation is ex abundanti cautela. All that the explanation says is that the tenant cannot by his unilateral act of impermissible user, alter the purpose of letting. This explanation has nothing to do with determining the main, principal or dominant purpose of letting."
In another case titled as Trilochan Singh vs Daya Shankar & Ors in case RC SA No.34/2000 & CM 19587/2010; (Relied upon by the petitioners) it was observed as under:-
"In my considered view, the Tribunal has rightly come to the conclusion that when there is a written contract where the purpose of letting is set out as residential coupled with the factum of the rent receipts the purpose of letting is residential. Oral testimony to show that the tenant was using the premises for commercial purposes cannot imply the consent of the landlord. The landlord was protesting and merely because a tenant uses it for a contrary purpose cannot be a ground to presume such consent."
It was further observed:-
"23. The view of the Tribunal that the purpose of ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 30 /55 letting was residential cannot be faulted for several reasons. The Rent Note dated 6.5.1952 Ex.AW-2/4 under which the premises was taken on rent provides only for residential use. Once the terms of tenancy have been reduced into writing the purpose of tenancy has to be determined by reading the relevant clauses of the deed. Vide Precision Steel & Engg. Works v. Prem Deva Niranjan Deva Tayal, AIR 2003 SC 650."
In another case titled as Sharifuddin vs Mehrun Nisa And Ors. 148 (2008) DLT 154; (Relied upon by the petitioners) it was observed by the Hon'ble High Court as under:-
"6. The mere use of the premises for a commercial purpose, in any case, does not establish the purpose of letting to be commercial. One has to look at the user specified in the rent deed. Since there is no rent deed produced by either side, one can look at the rent receipts and counter foils. These receipts/counter foils show the user to be as a "makan" i.e. a residence. In this regard I may refer to the Supreme Court judgment in Precision Steel and Engineering Works. v. Prem Deva Niranjan Deva Tayal."
In another case tilted as Zahid Hussain Thr. LRs vs. Aenul Haq Qureshi Thr. LRs 113 (2004) DLT 518; (Relied upon by the petitioners) the Hon'ble High Court of Delhi observed as Under:-
"In order to prove the purpose of letting although the petitioner alleged that the premises in question were used for commercial purpose, yet he admits that his family members are residing in the premises in dispute and that when the premises were taken on rent, he, his wife and two sons were residing in the same. Merely because a tenant may have used a portion thereof for commercial activities, does not retract from the fact that the premises in a residential building were let out for residential purposes where the tenant himself has been residing."ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 31 /55
In the case titled as S. Sanyal vs Gian Chand 1968 AIR 438; (Relied upon by respondent) it was observed as under:-
"Now in Dr. Gopal Das Verma's(1) case the premises in dispute were originally let for residential purposes, but later with the consent of the landlord a portion of the premises was used for non- residential purposes. It was held by this Court that "where premises are let for residential purposes and it is shown that they are used by the tenant incidentally for commercial, professional or other purposes with the consent of the landlord, the landlord is not entitled to eject the tenant even if he proves that he needs the premises bona fide for his personal use, because the premises have by their user ceased, to be premises let for residential pur- poses alone". It was, therefore, clearly ruled that if the premises originally let for residential purposes ceased, because of the con,sent of the landlord, to be premises let for residential purposes alone, the Court had no jurisdiction to decree ejectment on the grounds specified in s. 13(1)(e) of the Act."
In another case titled as Smt. A.N.Kapoor vs Smt. Pushpa Talwar 1992 SCR (1) 472;( relied upon by respondent) it was observed as under:-
"If the landlord is in a position to establish that the premises have been let for residential purposes and that he has never consented to the user of the premises for any other purpose, the mere fact that such premises have been incidentally used for commercial or other purposes would not change or affect the residential character of the premises. In respect of such premises, it is open to the landlord to prove his bona fide requirements and thus establish the ground mentioned under clause (e). On the other hand, if the premises have been regularly and openly used for non- residential purposes, the knowledge and constant of the landlord, unless proved to the contrary, are ordinarily presumed and in that event the Explanation would be of no avail to save the ground under clause (e)."
It was further observed:-
ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 32 /55"In the present case, it is not disputed that the premises had been let for residential purposes, but it is also beyond doubt that to the knowledge of the landlord the premises have been regularly used by the tenant not only for her own residence but also for her foreign guests. The landlord has at all material times known or is presumed to have known that foreign students have been staying with the appellant as her paying guests and that she has been ever since 1961 running a boarding house in the premises. At no time did the landlord object to the user of the premises by the appellant for such purpose. The continued user of the building ever since 1961 for the purpose of lodging paying guests shows that the respondent-landlord and her father have not only been aware of such user of the building, but have also impliedly consented to such user. This presumption is irresistible from the evidence on record. Such user takes the premises in question out of the ambit of `premises let for residential purposes' so as to exclude the ground contained in clause (e). We are fortified in our conclusion by the views expressed by this Court in Dr. Gopal Dass Verma v. Dr. S.K. Bhardwaj & Anr., [1962] 2 SCR 678 and Kartar Singh v. Chaman Lal & Ors., SC (1969) IV All India Rent Control Journal
349. The position would have been probably different, and the Explanation would have been still available, had foreign guests been lodged only occasionally and for short periods, even if it be on the basis of payment to cover expenses. All this is a question of intention. Was it an occasional accommodation of paying guests consistently with the character of the premises as a private residence? The evidence on record leaves no doubt that the premises have been regularly used by the appellant as a boarding house and not as a private residence in the ordinary acceptation of the term. She has in fact been carrying on, in the words of Romer, J., "a species of business". See Hobson v. Tulloch [1898] 1 Chancery Division 424. See also Thorn & Ors. v. Madden [1925] All E.R. 321 and Tendler v. Sproule [1947] 1 All E.R."
In the case titled as Kartar Singh vs Chaman Lal & Others 1969 SCC (1) 760;( relied upon by respondent) it was ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 33 /55 observed that:-
"There could, therefore, be no eviction merely by accusation of vacant possession of a residence by such a tenant and the position would be the same with regard to his heirs and legal representatives the present respondent. It is point clear that section 14(1)
(h) can apply only where a tenant is in occupation of a premises which are only residential; then alone he would have to go if he acquires or has residential accommodation of his own."
In another case titled as D.C. Oswal vs V.K.Subbiah And Ors 1991 SCR Supl. (2) 203; (Relied upon by respondent) it was observed that:-
"Counsel for the respondents does not dispute that from 1973 there has been change of use. The petition for eviction is of 1980. It follows that for seven years no objection was raised for change of use and for the first time when eviction was sought, conversion was made the second ground. In these circumstances, we are prepared to accept the submission advanced on behalf of the appellant that the landlords accepted the user to be also other than residential."
In another case titled as Salekh Ch. Jain Vs. Vinesh Ch. Sheikh 1986 RLR 17; it was observed as under:-
"18. Letting purpose, like any other fact, could be proved by the documentary and/or oral evidence. In the absence of convincing evidence to prove the letting purpose it has to be inferred from the physical nature of the premises, area where the premises are situated, actual user and other relevant surrounding circumstances. These circumstances however, would be of no help if there is cogent satisfactory and sufficient documentary and/or oral evidence to prove the agreed terms regarding the user."
In case titled as Ganpat Ram Sharma & Ors. vs Smt. Gayatri Devi, 1987 SCR (3) 539 (relied upon by both the ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 34 /55 parties); it was observed that:-
"It is well-settled that time begins to run from the date of the knowledge. See in this connection the decision of Harbans Singh and another v. Custodian of Evacuee Property 'P' Block and others, A. I. R. 1970 Delhi 82 though that was a case under a different statute and dealt with a different article. See also Ujagar Singh v. Likha Singh and another, A.I.R. 1941 Allahabad 28 at page 30. The Division Bench of the Punjab and Haryana High Court in Somdass (deceased). v Rikhu Dev Chela Bawa Har Jagdass Narokari, Punjab Law Re- porter Vol. 85., 184 held that in a suit for possession under Article 113 of the Limitation Act, material date is one on which the right to sue for possession arises."
In the case titled as Nihal Singh vs Dalip Singh Lamba , 1994 RLR 468; it was observed that:-
" (11) I do not find any merit in the contention of learned counsel of the tenant that since the wife of the tenant had already sold the DDA flat before the application for eviction was filed by the landlord, the tenant was not liable to be evicted.
The Supreme Court in the case of Smt. Mohini Bhadwar (supra) has clearly held that the fact that the tenant lost possession on the date when the eviction petition was filed would not protect the tenant against Section 14(l)(h) of the Act. The judgment of this court in the case of Gian Singh (supra) will not be of any assistance to the tenant in view of the law laid down by the Supreme Court in the case of Smt. Mohini Bhadwar (supra). (12) I do not find any merit also in the contention urged by the learned counsel for the tenant that the landlord was not quick in taking action against the tenant after the accrual of cause of action. Nihal Singh vs Dalip Singh Lamba on 8 August, 1994 "The landlord in his statement has clearly stated that he came to know of Pitampura residence of the tenant in the year 1988. Admittedly, the eviction petition was filed by him on 31st January, 1989. Thus there was no delay on the part of the landlord in filing the eviction petition. The judgment ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 35 /55 of the Supreme Court in the 'Ganpat Ram Sharma's (supra) case is, therefore, not of any assistance to the tenant in the present case."
In another case law titled as Delhi Jal Board vs Surendra P. Malik, 2003 (68) DRJ 284; it was observed that:-
"All it claims is that parties had intended the Lease to continue which was inferable from the rent bills raised by Respondent and the rent amount received by him. The question that arises is whether mere receipt of rent by respondent or his predecessor in interest by itself could continue the tenancy which had otherwise expired by efflux of time or re-create it so as to require determination by service of notice under Section 106 of TPA. Delhi Jal Board vs Surendra P. Malik on 24 March, 2003 12. It is no longer a grey area that where a tenancy had otherwise expired by efflux of time but the tenant continued in possession of the premises, mere acceptance of rent by the landlord could neither renew the tenancy nor create a new one. That is so because such subsequent occupation of premises was not in pursuance of any contract, express or implied between the parties. It could at best be by virtue of the protection granted by a statute like Delhi Rent Control Act so long the tenancy fell within its purview but once the tenancy was out of its protection shield, it was not required to be determined by notice under Section 106 of TPA as it stood already determined by efflux of time under Section 111 of that Act. We find support for this in the Supreme Court judgment in G.D. Murarka's case:- "Where a contractual tenancy to which the rent control legislation applied has expired by efflux of time or by determination by notice to quit and the tenancy continues in possession of the premises by virtue of statutory protection, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy."ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 36 /55
In another case titled as Indian Cable Company Limited vs Prem Chandra Sharma , 1989 RLR 495; it was observed that:-
"Clause (h) manifests intention of the legislature to forfeit statutory protection in respect of premises let for use as a residence if the tenant has built, acquired vacant possession of, or been allotted another property of the same kind. The object of a clause like this is to restrict statutory protection to the tenancy of only one residential premises. This is clear from Shyam Sunder v. Khanchand, (1966) 2 Dlt 223 Kali Kumar Sen v. Makhanlal Biswas Air 1969 Assam 66 (FB) Avinash Kaur v. Beli Ram, 1970 Rcj 995, and Ganpat Ram v. Smt. Gayatri Devi, . This provision has been made in view of paucity of residential premises in Delhi. As a policy it is intended to safeguard the legitimate interests of the landlord as also to eater to requirement of those persons in society who do not have been even a place to live in and need residential accommodation on reasonable rent in Delhi. This purpose would be frustrated if the argument of Mr. Kapur were to be accepted.
(23) Further, the question whether a tenant actually uses, misuses or does not use the premises as a residence may arise when recovery of possession of residential premises is sought under Clause (c) or Clause (d) of the proviso to Sub-section (1) of Section 14. This question is not relevant for the purpose of Clause (h). However, one or more grounds specified in the proviso may apply to the facts of a given case and in some case grounds (c), (d) and (h) together may be attracted: but it is incorrect to say that Clause (h) would apply only to premises actually used as a residence by a tenant.
(24) The test of actual use as a residence, in respect of the premises from which eviction is sought or in respect of the acquired property, as suggested by Mr. Kapur, would lead to absurd results. For example a tenant could vacate the hired premises or lock it and shift to the acquired place and contended that the premises let out to him are not in his actual use as a residence and, therefore, he cannot be evicted under Clause (h).
Similarly. applying the test to the acquired property ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 37 /55 even after acquiring vacant possession, the tenant may keep it locked or may use it for some other residential purpose (not as his actual residence), then also Clause (h) would not apply. Such pleas could be raised by not only a company but also by a living being to whom residential premises are let out.
(25) In Shyam Sunder v. Khem Chand (supra) Clause (h) has been held to apply even to a case where a tenant genuinely needed the premises along with additional residential accommodation to cater to the growing need of his family. In that case, despite the acquired vacant possession of the additional accommodation being needed and in fact used as residence for the members of the family of the tenant, H.R.Khanna. J. speaking for this court, rejected the argument that Clause (h) was not attracted. It was held that the tenant should not have more than one premises for his residence ; that it is for the tenant, when he takes a new place for his residence, to see that it is sufficient for his needs; that having taken the vacant possession of new premises, he cannot refuse to vacate the earlier tenanted premises on the plea that the demised premises are not sufficient for his residence."
It was further observed that:
"In our view, for the purposes of Clause (h) it really makes no difference whether the demised premises or the acquired property is used by the tenant as actual residence or whether the tenant uses the premises for any other residential purpose or does not at all use either or both of them: nor does it make any difference whether the tenant is a juristic or a natural person."
20. In view of the contentions of the parties and perusal of record, I am of the considered view that first issue is to be determined by this court is whether tenanted premises was let out for the residential purposes or commercial purposes.
ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 38 /55Secondly, if the tenanted premises is let out for residential purposes and later on it is used by the tenant/respondent commercially. Then whether Section 14(1)(h) of DRC Act shall be applicable or not.
21. I have carefully and minutely gone through the documents placed on record by both the parties and written submission along with the case law relied upon by Ld. counsels for the parties. I have also heard very exhaustive arguments advanced by the Ld. Counsel for the parties.
22. Perusal of record shows that petitioners have placed on record two rent notes Ex. PW5/1 dated 04.12.1967 Ex. PW-5/1 and Ex. PW5/2 dated 04.08.1968 to prove that the purpose of letting out was residential only and not the commercial one.
23. I have minutely gone through the rent note. The relevant para of the above mentioned rent note 1967 is as under:-
"Letting out Purpose Only"
As such, rent note 1967 manifestly shows that the tenanted premises for let out only for residential purposes only.
The another relevant para of the rent note 1967 as under:
"In the tenanted premises shall be used by the tenant, wife, children and none else for residence".
24. As such above clauses of the rent note manifestly shows that the tenanted premises was to be used only by tenant, wife and children and not by any one else and that too only for residential purpose. Rent note also shows that there is ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 39 /55 mentioning of bath room, kitchen etc. in the rent note itself which shows that the purpose of letting out of the tenanted premises was residential. It is well settled that purpose of letting out may be determined by going through the surrounding circumstances also, such as locality, structure of the tenanted premises and interior of the tenanted premises etc. etc.
25. As such, rent notes clearly shows that purpose of the tenanted premises was residential only and not commercial one.
26. Furthermore for the purpose of section 14(1)(h) D.R.C. Act, it does not matter if the tenant/respondent has started using it for commercial purposes after having been let out for the residential purpose.
27. It is pertinent to mention that respondent has contended that after the death of mother of Sh. K.C. Malhotra (Smt. Ram Rakhi erstwhile owner of the tenanted premises before Sh. K.C. Malhotra) Sh. K.C. Malhotra executed a fresh rent note with the respondent and the aforesaid rent note is in the custody and possession of Sh. K.C. Malhotra and prayed to the court to direct Sh. K.C. Malhotra to produce it.
28. In my view, this plea does not have any force as rent note is a document which is signed by both the parties, i.e., landlord as well as tenant and copy of such fresh rent note is supposed to be in the custody of tenant/respondent also. But respondent has not explained the reason for non-availability of ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 40 /55 such document and merely alleged that Sh. K.C. Malhotra is in the possession of it.
I have also gone through the testimony of Sh. K.C. Malhotra PW5 which shows that no suggestion has been put by the respondent in respect of such fresh rent note during the cross-examination. As such, the respondent has merely made the vague and bald averments regarding fresh rent note by Sh. K.C. Malhotra and respondent and no such fresh rent note was placed on record.
29. In view of the material on record, I am of the view that the respondent has not been able to prove the existence of such fresh note with Sh. K.C. Malhotra and respondent has taken only a vague plea.
30. The testimony of RW1 Sh. Vikram Kharbanda clearly shows that property No.C-3/31, Janakpuri has been allotted by the DDA in 1969 but his father shifted to that property in 1985. As such, it is clear from the testimony of RW1 that the respondnt has acquired a vacant possession for residence.
During cross-examination RW1 Sh. Vikram Kharbanda has deposed that in the year 1967 tenanted premises was constructed upto ground floor consisting of one drawing room and three rooms, kitchen, bath room, toilet and veranda etc. As such construction of tenanted premises manifestly shows that tenanted premises was meant for residence only and not commercial use. RW1 has himself deposed that he does not have any document to show that premises was let out to the respondent for commercial purposes. During the cross- examination, RW1 Sh. Vikram Kharbanda has admitted that ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 41 /55 initially entire ground floor was let out to his father and then thereafter only two rooms on first floor was let out to his father. During cross-examination, RW1 has not been able to give even the description of fresh rent note allegedly signed by his father and Sh. K.C. Malhotra in 1976. As such, fresh rent note in the year 1976 is not proved by the respondent.
RW1 also deposed that he does not have in his possession any NOC (No Objection Certificate) issued by Sh. K.C. Malhotra or even copy thereof.
It is also well settled that whether a tenant actualy uses, mis-uses or does not use the premises as a residence are relevant only when eviction is sought U/Sec. 14(1)(c) or (d) of D.R.C. Act but these factors or questions are not relevant for the purpose of clause (h) of D.R.C. Act.
It is also well settled that test of actual use as residential in respect of tenanted premises from which eviction is sought or in respect of acquired property will lead to absurd results. As in such cases U/sec. 14(1)(h) D.R.C. Act, tenant could vacate the tenanted premises or lock it or shift to acquired place and may contend that the premises let out to him are not in his actual use as residence and he can never be evicted U/Sec. 14(1)(h) D.R.C. Act. And also applying the same test to the acquired property even after acquiring vacant possession, a tenant may keep it locked or may it use for some other residential purpose and not as his actual residence. In such a situation also, section 14(1)(h) D.R.C. Act would not apply but it was not the intention of the Legislature behind the enactment of Sec. 14(1)(h) D.R.C. Act. If such an interpratation is accepted, it would certainly lead to absurd result and the purpose of enactment of 14(1)(h) D.R.C. Act would be defeated as the ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 42 /55 intention of Legislature was to forfiet statutory protection in respect of premises let out for use as residence, if the tenant has acquired vacant possession or has been alloted another premises of the same kind.
31. It is well settled that when rent agreement in writing does not exist between the parties or the purpose of letting out is not shown in the rent agreement, it can be ascertained by the locality of the tenanted premises, structure of the building, construction of the tenanted premises and surrounding circumstances and all other factors etc. etc.
32. The object of Sec. 14(1)(h) D.R.C. Act is to restrict statutory protection to the tenancy of only one residential premises. The provision of such 14(1)(h) was made by the Legislature keeping in view the dire scarcity of residential premises in Delhi. The policy of the Legislature was that to safeguard the legitimate interest of landlord and also to fulfill the residential requirement of those who do not have residential accommodation in Delhi.
It is also well settled that for the purpose of 14(1)(h) D.R.C. Act, it is not relevant whether acquired property is suitable substitute for the premises let out for use as residence.
33. As such, in view of well settled propostion of law, it is evident that for the purpose of 14(1)(h) D.R.C. Act, it does not matter whether the tenanted premises or the acquired property is used by tenant as actual residence or whether tenant uses the premies for any other residential purpose or does not at all uses either or both of them.
ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 43 /5534. As such, in view of the aforementioned settled proposition of law, it is evident what matter is the purpose of letting out and not actual use as residence by the tenant.
35. It is well settled that when there is no rent agreement in writing showing the purpose of letting out, the purpose may be ascertained by evaluating the locality where the tenanted premies is situated, structure of the tenanted premises and the building in which the tenanted premises are situated and surrounding circumstances etc. It is on record that the tenanted premises were let out in 1967 as claimed by the petitioners. As such, the tenanted premises were let out more than 50 years ago.
36. In my view, the court is to determine purpose of letting out and the court is supposed to determine the locality of the tenanted premises keeping in view the locality of tenanted premises 50 years ago and not as on today.
It is on record that the place where the tenanted premises is situated is residential and situated on main market of Rajouri Garden. It is a matter of common knowledge that aforementioned place is used as market for retail garments and other items but this area was not supposed to be used for commercial purpose in the year 1967 i.e. more than 50 years ago.
37. Perusal of record shows that respondent has placed a large number of documents to show that tenanted premises ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 44 /55 has been using commercially by the respondent for the last more than 40 years.
As per the claim of respondent, tenanted premises is being used commercially as on today also. But the case of the respondent/tenant is that since the tenanted premises was used commercially, Section 14(1)(h) of DRC Act is not applicable to the present case as Section 14(1)(h) is applicable to residential tenanted premises only and not to the commercial tenanted premises.
On the other hand, petitioners have impleadily admitted that the tenanted premises is being used commercially by the tenant/respondent but the claim of the petitioners/landlords is that a tenanted premises was let out for residential purpose only and not for commercial purpose. As such, the petitioners' claim that Section 14(1)(h) of DRC Act is applicable to the present case as the tenanted premises were let out for residential purposes only.
38. The claim of the petitioners are that vide rent note dated 04.12.1967 duly executed by the respondent, the entire ground floor along with fixtures and fittings, light connection and water connection was let out to the respondent for residential purpose only.
It is further claimed by the petitioners that subsequently vide rent note dated 04.08.1968, duly executed by the respondent only two rooms at the first floor along with fixtures and fittings were let out to respondent for residential purpose only and it was clearly stated that respondent had no concern with the third room of the first floor.
ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 45 /55It is further claimed by the petitioners that third room, at first floor was allowed to be occupied by the respondent @ Rs.90/- p.m. It is also claimed by the respondent that ground floor, first floor and its roof were rented out to the respondent on the inception of the tenancy. It is further contended by the respondent that rent note dated 04.12.1967 and 04.08.1968 are unregistered documents and in view of Section 17 of Indian Registration Act contents thereof can not be read in evidence.
In case titled as M. Mohan Vs. Maheshwari Seth 1987 RLR 121; it was observed as under:-
"The proviso to Section 49 of the Registration Act however provides that unregistered document affecting immovable property and required to be registered may be received as evidence of any collateral transaction not required to be effected by registered instrument. To determine the letting purpose the lease deed Ex. Az can be looked into as the letting purpose is a collateral purpose as has been held by this Court in J.N. Banerjee v. Sohan Lal Bhargava."
39. The contention of the respondent that these rent notes can not be relied upon as these are not registered one as laid down U/S 17 of Indian Registration Act does not have any force in view of settled proposition of law as the unregistered rent agreement/rent note may be relied upon for collectoral purposes.
40. It is further claimed by the petitioners that the terrace of the premises is not in the tenancy of the respondent. However, to confuse the issues and complicate the controversy and keep the petitioners entangled in the long drawn litigation, the respondent initiated a civil litigation of frivolous nature on the ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 46 /55 usual ground of apprehension of being dispossessed by force. But as per claim of petitioners, the same has been held by the Hon'ble High Court that what was let out to the respondent was the ground floor and first floor of the suit property. However, in order to cut short the controversy regarding the tenancy portion, this petition is restricted to what is mentioned in the written rent notes and including the third room at the 1 st floor, but in case it is held that the terrace above the 1 st floor is also a part of the tenancy of the respondent then this eviction petition may be treated for the entire premises bearing no. J-13/51, Rajouri Garden, New Delhi along with the terrace, but it may not be treated as an admission of the fact that subsequently the terrace has been admitted to be in the tenancy of the respondent.
On the contrary, the respondent has claimed that the terrace is also part of the tenancy.
In another case of Peter George vs Janak J. Gandhi 1996 (36) DRJ 248; it was observed as under:-
"(8) If the terrace was not part of the tenancy of the respondents, then the respondents cannot with any semblance of justification interfere with the construction on the terrace of the appellants. They have not been able to show any restrictive covenant in this regard. Even if lease deeds are not registered, undisputedly they can be looked into for the purpose of finding out and ascertaining the nature and character of the defendants' possession. As per the lease deeds, while respondent No.1 is the tenant of the basement and garage, respondent No.2 is the tenant of the ground floor and the servant quarter."
41. In view of settled proposition of law and material on record, this contention of the respondent does not have any merit.
ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 47 /5542. It is further mentioned that vide Power of Attorney dated 22.12.2004, Sh. S.S. Lamba, the husband of petitioner No. 1 and father of petitioner No. 2 is authorised to sign, verify and file all kinds of plaint, petition etc. in any court on behalf of the petitioners.
On the contrary, the respondent has contended that Sh. S.S. Lamba is not competent to institute present petition and he is not authorised by the petitioners to file it.
In case tiled as Capt. Praveen Davar (Retd.) & ... vs. Harvansh Kumari & Ors. on 27 August, 2010 in RFA 72/2005; it was observed as under:-
"The provisions of Order 3 Rules 1 and 2 CPC, as is clear from a reading thereof, contain no impediment to the Attorney deposing in place of and instead of the landlord. In Smt. Ramkubai (since deceased) by L.Rs and others v. Hajarimal Dhokalchand Chandak and others, AIR 1999 Supreme Court 3089, the Supreme Court while dealing with a case where the landlady did not appear in the witness box herself, but instead produced her son, who was also her G.P.A. holder, held that it was not important or essential for the landlord/landlady to enter the witness box to support the case. [See also: Om Prakash Vs. Inder Kaur 2009 (107) DRJ 263 and Satnam Channan v. Darshan Singh 2006(2) RCR (Civil) 615 Punjab and Haryana]."
It was further observed as under:-
"There is no dearth of legal precedent in this regard and the law is well settled that the letting purpose can be inferred from the nature of the premises, its design, its location and its dominant use [See Trilochan Singh vs. Mrs.Usha Dhir 1993 RCJ (2) 149 (DB)]. Where the dominant use has been established to be the residence of the tenant and his family, the nature of the premises must be taken to be residential. Mere fact that a lawyer sees his client ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 48 /55 in his house and transacts some legal business, or a doctor examines his patient in his house or any other professional incidentally carries on some work from a portion of his residence, does not amount to conversion of a residential premises into non- residential one. [See: Kidar Nath Sodhi versus T.R.Kapoor 1989(1) RCJ 112 and Mrs.C.Colaco v. Urban D' Silva 1970 RCJ 883]."
In another case titled as Janki Vaish Deo Bhojwani vs. Indusind Bank SC 439 AIR 2005 (Relied upon by the respondent). The relevant para of which is as under:-
"12. In the context of the directions given by this court, shifting the burden of proving on the appellant that they have a share in the property, it was obligatory on the appellants to have entered the box and discharged the burden by themselves. The question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore, he can neither depose on his personal knowledge nor he can be crossed examined on those facts which are to the personal knowledge of the principal.
13. Order III, Rules 1 & 2 , CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view, the words "act" employed in Order III, Rules 1 & 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney he may depose for the principal in respect of such acts but he not depose for the principal for the acts done by the principal and not by him. Similarly, he can not depose for the principal in respect of matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross examined.
14. Having regard to the directions in the order of remanded by which this court placed the burden of ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 49 /55 proving on the appellants that they have a share in the property, it was obligatory on the part of the appellants to have entered the box and discharged the burden. Instead, they allowed Mr. Bojwani to represent them and the Tribunal erred in allowing the power of attorney holder to enter the box and deposed instead of the appellants. Thus, the appellant have failed to establish that they have any independent source of income and they had contributed for the purchase of the property from their own independent income. We accordingly hold that the Tribunal has erred in holding that they have a share and are co-owners of the property in question. The finding recorded by the Tribunal in this respect is set aside.
"15. Apart from what has been stated, this court in the Case of Vidhyadhar Vs Manikrao & Others (1999) 3 SCC 573 observed at page 583 SCC that "where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct".
"21. We hold that view taken by the Rajasthan High Court in the case of "Shambhu Dutt Shastri (supra) followed and reiterated in the case of Ram Prasad (supra) is the correct view. The view taken in the case of Floriano Armando Luis (supra) can not be said to have laid down a correct law and is accordingly over ruled."
43. I have minutely gone through the evidence of the PW6 Sh. S.S. Lamba. It is correct that petitioners Smt. Manjeet Kaur and Dr. Jaspreet Singh Lamba have not appeared in the witness box despite having the ample opportunity. As such, they were not subjected to any cross-examination by the Ld. Counsel for the respondent.
Furthermore, it is well settled that where the law requires a party to a proceeding to establish or prove something with reference to his `state of mind' or `conduct', normally the person ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 50 /55 concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his `bona fide' need fall under this category. There is, however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides. The hon'ble Apex court has also given the examples of such attorney holders such as a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.
44. In the present case, it is clear that the petitioners No. 1 Smt. Manjeet Kaur & Petitioner No. 2 Dr. Jaspreet Singh Lamba have neither appeared in the witness box but they have given the power of attorney Ex. PW-1/1 to Sh. S.S. Lamba to appear in the witness box on their behalf. Moreover, PW-6 has been able to prove the case of the petitioners on the basis of their own evidence. It is clear from the record that the PW-6 is the spouse of petitioner no. 1 and father of petitioner no. 2, exclusively managing the affairs of the petitioners.
As such, in view of the settled law and aforementioned discussions , I am of the considered view that the contention of the respondent in respect of attorney for petitioners does not have any merit as the law does not bar any attorney to depose on behalf of principal. The attorney can always appear for the petitioner and can depose on behalf of the petitioner.
ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 51 /5545. In my view, case law relied upon by the repsondent i.e. Janki Vaish Deo Bhojwani vs. Indusind Bank (supra); does not have of any assistance as the aforesaid case was pertaining to Sec. 14(1)(e) of D.R.C. Act for bonafide requirement but the present case is U/Sec. 14(1)(h) of D.R.C. Act. Moreover, the facts of the aforesaid case are different from facts of this case.
46. In view of settled proposition of law as stated above, it is clear that there is no impediment to the Attorney deposing in place of and instead of the landlord. The Hon'ble Supreme Court while dealing with a case where the landlady did not appear in the witness box herself, but instead produced her son, who was also her G.P.A. holder, held that it was not important or essential for the landlord/landlady to enter the witness box to support the case.
47. Second contention of the respondent is that such rent note is not complete as third page of the rent note is torn and this rent note can not be relied upon.
In view of settled proposition of law and discussion as earlier, this contention of respondent does not have any merit.
48. Next contention of the respondent is that erstwhile owner of the tenanted premises Sh. K.C. Malhotra let out the tenanted premises for commercial purposes only. But perusal of record shows that the respondent has not placed any rent note or rent agreement which shows that the tenanted premises were let out for commercial purposes only. On the other hand, the petitioner has placed on record rent notes which shows that the purpose of letting out was residential only. It is correct that the respondent has placed on record large number of documents ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 52 /55 to prove that the tenanted premises had been using as commercial one for the last more than 40 years without any objections by the erstwhile owner Sh. K.C. Malhotra.
Perusal of record clearly shows that it is undisputed fact that the tenanted premises is being used for commercial purpose. But it does not prove that the purpose of letting out was residential only. It merely shows that the tenanted premises is being used for commercial purpose.
49. One of the contention of the respondent is that erstwhile owner of tenanted premises Sh. K.C. Malhotra impleadily gave permission to use it commercially as he never objected to it.
In my view, this contention also does not have any merit as for the purposes of Section 14(1)(h) of DRC Act, purpose of letting out should be residential only. But it never lays down that when a tenanted premises is let out for residential purpose and later on it is used by the tenant for commercial purpose, Section 14(1)(h) of DRC Act will not be applicable.
The purpose of Section 14(1)(h) of DRC Act is that a tenant should not reside in more than one premises and if he has acquired a vacant possession of another premises, he must quit first one so that it may be used by other needy tenants.
50. The contention of the respondent is that since it is being used for commercial purposes, Section 14(1)(h) of DRC Act is not applicable.
In my view as discussed exhaustively, this contention does not have any merit as this can not be the intention of the legislature while enacting Section 14(1)(h) D.R.C. Act. If such a ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 53 /55 interpreation done by the respondent is accepted, the purpose of Section 14(1)(h) would completely be defeated. In my view, the landord/petitioner has to prove the purpose of letting out only and he is not required to prove that the tenancy was let out for residential purpose and tenant is still using it for residential purposes.
51. If it is assumed for the sake of argument that Section 14(1)(h) of DRC Act is not applicable when the tenanted premises is let out for residential purposes and lateron used by respondent for commercial purposes, it will certainly give the wrong message to the wrong doers. And miscreants tenant after having been let out for residential purposes will start using it commercially in case of acquisition of vacant possession of another premises to avoid eviction U/S 14(1)(h) of DRC Act and a very purpose of Section 14(1)(h) will certainly be defeated.
52. As such, in view of the discussion earlier, well settled proposition of law, it is proved on record that the purpose of letting out was residential only and not the commercial one.
As such, another ingredient U/Sec. 14(1)(h) D.R.C. Act in respect of purpose of letting out is also satisfied.
CONCLUSION:-
53. Keeping in view all the facts and circumstances of the present case, material on record, settled proposition of law and the reasons as discussed earlier, I am of the considered view that the petitioners have proved all the ingredients of Sec. 14(1)
(h) of D.R.C. Act. As such, the present eviction petition is ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 54 /55 allowed and in consequence thereof, an eviction order is passed in favour of petitioners and against the respondent in respect of entire tenanted premises i.e. J-13/51, Rajouri Garden, New Delhi.
54. File be consigned to Record Room after due compliance.
Announced in the open court
on 20th October, 2018. Digitally signed
AJAY by AJAY NAGAR
Date:
(This judgment contains 55 pages) NAGAR 2018.10.20
17:24:33 +0530
(AJAY NAGAR)
Commercial Civil Judge-cum-
Additional Rent Controller,
West District, THC/Delhi.
ARC No. 25922/2016 Manjit Kaur & Ors. vs. Piare Lal Kharbanda (deceased) through LRs. Page 55 /55