Delhi District Court
(2) Smt. Kiran Bharati vs Shri Prem Nath Gera (Deceased) on 26 April, 2011
1
IN THE COURT OF SHRI O.P. GUPTA,
DJ-III-CUM-ASJ (WEST)/ARCT/DELHI
***
RCT-21/2009 Unique ID NO. 02401C0198312009 Shri Manohar Lal (Deceased) Through Lrs (1) Sh. Vipin Chugh S/o Late Sh. Manohar Lal R/0 F-213, AC, Ground Floor, Mansarover Garden, New Delhi-110015 (2) Smt. Kiran Bharati W/o Sh. K.L. Bharati, R/o 2/100, Jalan Street, Chhihhrouli, Distt. Yamuna Nagar, Haryana. ....Appellants Versus Shri Prem Nath Gera (Deceased) Through Lrs (1) Shri Anil Gera S/o Late Sh. Prem Nath Gera (2) Mrs. Raj Gera Wd/o Late Sh. Prem Nath Gera Both R/o 25-C/40, Punjabi Bagh, New Delhi 110 025 .... Respondents RCT No. 21/09 1 of 31 2 AND RCT No. 79/09 Unique ID No. 02401C0409112009 Shri Manohar Lal (Deceased) Through Lrs (1) Sh. Vipin Chugh S/o Late Sh. Manohar Lal R/0 F-213, AC, Ground Floor, Mansarover Garden, New Delhi-110015 (2) Smt. Kiran Bharati W/o Sh. K.L. Bharati, R/o 2/100, Jalan Street, Chhihhrouli, Distt. Yamuna Nagar, Haryana. ....Appellants Versus Shri Prem Nath Gera (Deceased) Through Lrs (1) Shri Anil Gera S/o Late Sh. Prem Nath Gera (2) Mrs. Raj Gera Wd/o Late Sh. Prem Nath Gera RCT No. 21/09 2 of 31 3 Both R/o 25-C/40, Punjabi Bagh, New Delhi 110 025 .... Respondents Date of Institution : 13.05.2009 Date of completion of Arguments : 20.04.2011 Date of Order : 26.04.2011 J U D G M E N T
1. By this common judgment I shall be deciding two appeals bearing No. RCT-21/09 titled Manohar Lal represented by Lrs Vs Prem Nath Gera represented by Lrs and RCT No. 79/09 bearing the same title as the parties, the property in both the cases is same. In fact they arise out of same eviction petition No. E-380/08 ( Old No. E-132/97). In the former appeal judgment dated 13.04.2009 passed by Ld. ARC has been challenged whereas in the later appeal order dated 27.7.2009 vide which benefit u/s 14(2) was declined, has been challenged.
2. The facts giving rise to the same are that petitioner/respondent filed an eviction petition u/s 14(1) (a)
(c) (d) (j) and (k) DRC Act in respect of one drawing cum RCT No. 21/09 3 of 31 4 dinning room as shown red in the site plan, in property No. I- 49, Punjabi Bagh, Delhi. During the pendency of the case the petitioner did not press case u/s 14(1) (d) (k) DRC Act. Ground u/s 14(1) (j) DRC Act has been declined by the Ld. ARC vide impugned judgment by holding that for seeking eviction on the ground of damages what is required is substantial damages and not mere damages. In doing so it relied upon Suraj Parkash Chopra Raj Kumar Versus Baij Nath Dhawan 103(2003) DLT 645.
3. Before entering into merits of the appeal I would like to take up application u/o 41R 27 CPC moved by the appellant for additional evidence. Appellant wants to produce 14 Rent receipts , Copy of survey report dated 21.2.1979/4.3.1979 by MCD, copies of eviction petitions in previous cases and copy of pleadings/statements in one of the previous case. The same are aimed at proving the purpose of letting. The ground made out in the application is that appellants are legal heirs of original tenant and tried to search the old RCT No. 21/09 4 of 31 5 record. The receipts were not within the knowledge of Lrs of appellant earlier and they have come across the same only after the decision of the present case.
4. The application has been opposed by Lrs of respondent by filing reply. He has stated that scope and ambit of additional evidence is restricted. The same is not meant for filling up the gap and removing the lacuna. Rent receipts and survey report is very much in existence and in the knowledge of appellant. The petition was initially contested by the original tenant who was aware of all the documents. Lrs came at a very late state and it cannot be said that they were handicapped in producing those documents.
5. At the very out set I may mention that as per law laid down in AIR 2008 SC 2360 and 16 (2010) DLT 595 application for additional evidence has to be taken up and decided along with appeal.
6. The counsel for the appellant relied upon Northern Eastern Railway Administration, Gorakpur Vs Bhagwan Dass RCT No. 21/09 5 of 31 6 AIR 2008 SC 2139 to make out that adduction of additional evidence at appellate stage is permissible of court requires it to pronounce judgment or is necessary for giving judgment in more satisfactory manner. In that case the High Court has dismissed the appeal without considering application and so the matter was remanded back. Thus the primary question was effect of not deciding the application u/o 41 R 27 CPC. The other decision relied upon by the counsel for the appellant is Satwinder Singh Vs Kanwar Krishan Anand 154(2008) Delhi Law Times 473 in which it was held efforts of court has to dig out truth and not to act only as an umpire in bout of two litigants. Court can allow application for additional evidence if it is necessary to come to proper decision in case. There can be no question of the said preposition of law but the same only lays down that requirement of court and not requirement of the party which permits additional evidence.
7. The counsel for the appellant also relied upon Dilbara RCT No. 21/09 6 of 31 7 Singh Versus Mohinder Singh 1998(1) PLR 753 in which money lenders registration certificate was permitted to be produced additional evidence as one of the issue was whether the plaintiff was a money lender without a valid licence. The same is peculiar to the facts of its case.
8. Reliance has also been placed on M/s Hindustan Petroleum Corporation Ltd. Vs R.P. Agarwalla and Brother (Pvt) Ltd. AIR 1986 Calcutta 403 in which it was held that there may well be cases where even though the court find that it is able to pronounce judgment on the state of record as it is, and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for any other substantial cause under R 27(1)(b) of the code. The same is not applicable to the facts in hand.
RCT No. 21/09 7 of 31
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9. It was held in (2004 ) 4 Supreme 631 that additional
evidence in appeal can be permitted only when the same could not be found by the party inspite of due diligence.
10. Elaborating his arguments the counsel for the appellant urged that the rent receipt do throw light on the purpose of letting. The rent receipt from 25.9.77 to 24.10.77 shows that it is in the name of proprietor Manohar Lal, Metro Tent House. The other receipt from 1.11.77 to 30.11.77 is in the name of proprietor Manohar Lal. The column regarding nature premises on the top of receipt are blank. The other rent receipts are in the name of Manohar Lal. Thus what I feel is that 'proprietor' before Manohar is description. Proprietor Manohar Lal and not connecting with purpose of letting. The receipts are not in the name of firm Metro Tent House. Moreover there is no reason why the tenant exhibited subsequent receipts in his individual name.
11. The house tax survey report does contain the purpose of use as commercial against the name of Manohar Lal. But I RCT No. 21/09 8 of 31 9 do not think that the same is relevant for deciding purpose of letting. House tax record is meant for showing the purpose of use and not purpose of letting as per decision in Kela Devi Versus Banarsi Dass 1979 Rajdhani Law Reporter 523.
12. Counsel for the appellant meticulously took me through para 14 of the eviction petition where it was mentioned that premises were let out in the year 1970/1971. But in his affidavit PW-1 Anil Gera mentioned that the premises were out to the respon on 25.9.1977. Similarly in para 19 of replication the petitioner pleaded that para 19 of the written statement is totally false except the fact that there is rent agreement between the parties, From this hew wanted to make out that petitioner admitted existence of rent agreement but did not produce the said agreement who could have thrown light at the purpose of letting. I have given my thought to the argument and am unable to appreciate the arguments. Para 19 of the replication is to be read in context of corresponding para of written statement. In para 19 of the RCT No. 21/09 9 of 31 10 written statement the appellant nowhere pleaded that there was any rent agreement. Thus there was no occasion for the petitioner to accept or deny the same. In para 19 of the written statement the appellant simply stated that there is no stipulated that monthly rent has to be by 7th of every current month. There is neither any agreement nor contract to that effect. From this it appears that from 'agreement' in para 19 of the replication refers to agreement about date of payment of rent. That agreement could be oral as well as written. Not only this in para 14 of the replication it is specifically mentioned that there was no agreement of rent between the tenant and the landlord and para 14 of the petition is reasserted. The replication has to be read as a whole. Viewed from that angle only legitimate inference which can be drawn is that there is no written agreement between the parties. So there is question of non production of rent agreement by the petitioner does not arise. Still further however there was any rent agreement its copy should have RCT No. 21/09 10 of 31 11 been available with the appellant and he could have filed the same. It is very easy to say that a rent agreement was executed which remained with the landlord, no copy was kept by the tenant and so the tenant could not produce the same. But it is difficult to swallow the same.
13. The counsel for the appellant also urged that in the previous eviction petition the landlord tried to show that after few month that tenant surrendered the kitchen. But in evidence in the present case he stated that kitchen was surrendered in 1985 meaning thereby that it was surrendered after eight years of commencement of tenancy. I failed to understand how it can help the appellant. The year of surrender of kitchen is not relevant.
14. Yet another bone of contention of counsel for the appellant is that as per affidavit PW-1 Anil Gera premises were let out on monthly rent of Rs. 150/-. The same was enhanced to Rs. 325/- per month sometime in the year 1991 which was further increased to Rs. 800/- per month by way of RCT No. 21/09 11 of 31 12 compromise dated 18.10.96 in the previous eviction petition. It is quite strange that on the one hand the tenant is surrendering the kitchen and on the other hand he is increasing the rent. The conduct of the petitioner in accepting enhanced rent despite knowledge of the fact that tenant had used the user of the premises from residential to commercial, goes to show that the landlord was a consenting party to the change of user. The argument is wholly misconceived. It has nowhere upon the case of the appellant that the purpose of letting change subsequently or that the change of purpose can be inferred from increasing rent. Rather his case had been that purpose of letting was commercial from the very beginning.
15. In any event it is not necessary to dilute the purpose of letting any more because of the view I am going to take about misuser. The application for additional evidence is dismissed as the documents are neither relevant nor they can be said to be such which were not within the knowledge RCT No. 21/09 12 of 31 13 of the appellant at the time he was adducing his evidence.
16. However the Ld. Trial Court found that grounds u/s 14(1)
(a) & (c) DRC Act were made out. The case of the petitioner was that respondent was in arrears of rent w.e.f. 1.4.1997 inspite of notice dated 13.9.1997 ( Ex. PW1/6). The rate of rent was not in dispute which was Rs. 800/- per month. According to respondent/tenant the notice was not served, rent stood paid till 30.6.1997, after June 1997 he had given six cheques till January 1998 which were not got encashed by the petitioner. He wrote a letter dated 23.1.1998 ( Ex. PW1/10) requesting the petitioner to get the cheques encashed and send proper rent receipt.
17. During pendency of the petition, the petitioner corrected himself by stating that rent was due w.e.f. 1.07.1997 and not 1.04.1997 as claimed in petition and replication. Vide order dated 24.7.2002 u/s 15 (1) DRC Act the respondent was directed to pay or deposit rent w.e.f. 1.7.1997 till the end of the month preceding the date on which the deposit RCT No. 21/09 13 of 31 14 was made, within one month and to continue to pay or deposit rent at the same rent by 15th of each succeeding month.
18. Another development which took place is that petitioner expired on 3.4.1999 and his Lrs were brought on record vide order dated 22.02.2000. The respondent expired and his Lrs were brought on record vide order dated 18.3.2008
19. The Lrs of the petitioner examined one of the Lrs Sh. Anil Gera as PW-1. The respondent examined himself as RW-1 and Shiv Kumar as RW-2. After going through the material on record and hearing the arguments the Ld. ARC over-ruled the objection of appellant that the respondent could not be allowed to prove a case different from the one pleaded in the petition. In other words the objection was that in petition the respondent has claimed rent w.e.f. 1.4.1997 but in evidence he claimed rent w.e.f. 1.07.1997.
20. The appellant was not a stranger who did not know what was due from him. In fact notice has demanded rent RCT No. 21/09 14 of 31 15 correctly w.e.f. 1.7.1997. It was only a typographical mistake in petition that date of arrears was mentioned as 1.4.1997. The law has gone to the extent that even if excess rent is demanded in notice, the same does not become defective. For this reliance can be placed on 1978(1)RCR 34 & AIR 1989 SC 1484.
21. Reliance by appellant on Har Mohan Mehra Vs Rameshwar Dayal AIR 1980 Delhi 291 was distinguished on the ground that what was held in that case is that if an omnibus demand is made for lump sum without particularising the amount, it cannot be said to be a proper demand.
22. Regarding six cheques allegedly given by the tenant, it has come that landlord admitted two cheques which are Ex. PW1/11 and Ex. PW1/12. Both of them pertained to the period subsequent to the filing of the eviction petition and not the period demanded in notice. So they are not relevant.
23. Though the service of notice was initially denied by RCT No. 21/09 15 of 31 16 the tenant but in cross he admitted that reply dated 23.1.1998 was in response to notice Ex. PW1/6. Moreover postal receipt has been proved as Ex. PW1/7, UPC as Ex. PW1/8 and AD as Ex. PW1/9. Thus the service of notice stood proved.
24. The reply did not contain any recital that rent for July 1997 stood paid. Thus the same amounted to admission as per Kallu Ram Vs Sita Ram 1980 Rajdhani Law Reporter note 44, Metropolis Travels and Resorts Pvt. Ltd. Versus Sumit Kalra @ Anr 98 (2002) DLT 573 (DB).
25. One of the contention raised by the appellant was that petitioner has failed to prove that the rent was payable in advance by 7th day of each English calender month. Even if that is not so, as per section 26 DRC Act the rent become due on the first day of succeeding month. Thus rent for July 1997 became due on 1.8.1997 as per 1971 RCR 854 Delhi DB and Kamla Bakshi Vs Khairati Lal AIR 2000 SC 1808. That being so notice dated 13.9.97 could not be said to be RCT No. 21/09 16 of 31 17 pre-mature. The appellant has not paid or tendered rent for July 1997 within two months of service of notice. Thus ground under section 14(1) (a) was made out. File was separated for taking report about compliance of order u/s 15 (1) DRC Act. Ultimately it was found that appellant had neither paid nor deposited rent from February 2006 in compliance of order u/s 15(1) DRC Act. Thus benefit u/s 14 (2) could not be given. The same led to passing of eviction order vide order dated 27.07.2009 which is subject matter of later appeal.
26. The counsel for the appellant submitted that Lrs were not aware about order u/s 15(1) DRC Act. No fresh order u/s 15(1) DRC Act was passed against Lrs. The Lrs of appellant have now deposited rent from February 2006 in pursuance of order dated 27.1.2010 passed by Ld. Predecessor of this court. Still further since the respondent has not moved application u/s 15(7) DRC Act, benefit under section 14(2) DRC Act could not be denied.
RCT No. 21/09 17 of 31 18
27. I have given my sincere thought to the arguments. The counsel for the Lrs of respondent rightly relied upon decision in Parkash Narain Mathur Vs Shanti Parshad Jain and Ors 148(2008) DLT 542 in which it was held that Lrs of tenant are bound by initial order u/s 15(1) DRC Act. No fresh order u/s 15 (1) DRC Act is required against Lrs. The said decision was affirmed by Hon'ble Supreme Court in 158 (2009) DLT 483.
28. It was held in 1982 (2) RCR 707 and 208 (2) RCJ 315 that Lrs are bound by order u/s 15 DRC Act. In Kulwant Kaur Versus S.P. Bawa 1993 (1) RCR 81 our own Hon'ble High Court held that after death of statutory tenant his legal heirs are entitled to benefit to section 14(2) or continuing to comply with the order of Rent Controller passed u/s 15(1) DRC Act.
29. The counsel for the appellant submitted that as per para 18(a) Ii) of replication this eviction petition was on the ground of non payment of rent of second default and RCT No. 21/09 18 of 31 19 respondent is not entitled to protection as provided in section 14(2) DRC Act. The argument seems to be far fetched. No such avernments is discernible from para 18(a) (i) of the petition. There is no mention of appellant having availed the benefit under section 14(2) in the previous petition, either in the notice or in petition.
30. The counsel for the appellant relied upon Shanti Devi Versus Prem Chand 1978(2) RCJ 415 in which it was held that Lrs are not bound by order u/s 15(1) DRC Act. In doing so reliance was placed Kedar Nath Vers Mohini Devi AIR 1974 Delhi 171 Full Bench and JC Chatterjee Vs Siri K Krishana Tandon AIR 1972 SC 2226. The law prevalent at the time was that statutory tenancy was not heritable and legal representative of statutory tenant could only put forward such contention as appropriate to their representative character but not the contention which were were personal to the deceased tenant. Thus the legal representatives were under obligation to pay the rent.
RCT No. 21/09 19 of 31 20
31. The same is no more a good law in view of pronouncement of judgment of Hon'ble Supreme Court in Damodar Lal and others Versus Paras Ram and others AIR 1976 Supreme Court 2229 in which it was held that statutory tenancy is also heritable. Still further in view of subsequent decision relied upon by the counsel for the respondent in Prakash Narain Mathur supra, the Lrs of tenant were bound by order u/s 15(1) DRC Act. They could not enjoy the premises without paying the rent.
32. The counsel for the appellant also relied upon Ram Murti Versus Bhola Nath 26(1984) DLT 91 in which it was held that controller has discretion to condone default in payment of future rent and grant extension of time for payment or deposit of future rent. I have carefully gone through the said judgment. In that case the only question was regarding interpretation that word 'may' appearing in section 15(T) DRC Act. It was held that 'may' confers discretion and is not mandatory. So the matter was remanded back to consider RCT No. 21/09 20 of 31 21 whether that was a fit case to condone delay. Moreover in that case there was a dispute about rate of rent as to whether it was Rs. 18/- per month or Rs. 80/- per month. In the instant case the tenant had not sought any condonation of delay and so said decision is of no help to the appellant.
33. The counsel for the appellant wanted to make out that default in payment of rent should be willful to make out a case for eviction. In support of his submission he relied upon S Sundaram Pillai Versus V.R. Pattabiraman AIR 1985 SC 582. That was a case under Tamil Nadu Buildings ( Lease and Rent Control) Act. Though the said judgment contain observation that the said Act is in pari materia with other State Acts. But nonetheless words 'willful' do not find place in section 14(i) (a) DRC Act. The same are contained in section 15 (7) DRC Act only and are relevant for striking out the defence.
34. The counsel for the appellant relied upon Sham Charan Sharma Versus Dharam Dass AIR 1980 SC 587 to make out RCT No. 21/09 21 of 31 22 that failure to pay or deposit monthly rent does not entitle landlord, straight way to decree for eviction. He wanted to make out a difference between failure in deposit of arrears of rent and failure in deposit of subsequent rent. I am unable to make out the said difference. It was illustrated to impress that failure to deposit future rent on one or two occasion may be beyond control and may not call for striking out defence. Decision in Ram Prakash Tiwari Versus Suraj Bhan Yadav 90 (2001) DLT 336 is distinguishable for the same reason.
35. In any case the Lrs of appellant have been brought on record vide order dated 21.1.2008. Thus the Lrs had no justification for not depositing the rent after said date till 27.7.2009 when eviction order was passed. As regard non moving of application u/s 15(7) DRC Act it may be observed that appellant had already completed his evidence before the default started taking place. Thus nothing was left for application u/s 15(7) DRC Act. Not only this application u/s RCT No. 21/09 22 of 31 23 15(7) DRC Act is not must for denying benefit u/s 14(2) DRC Act, as per decision in 1990 (2) RCR 374 SC. It was held in 19 (1981) DLT 97 that if tenant does not comply with order u/s 15(1) DRC Act, he is not entitled to protection u/s 14(2) though defence is not struck off u/s 15(7), section 15(7) is not mandatory.
36. In Sanjay Kumar Saxena Versus Meena Govel 114 (2004) DLT 710 it was held in para 10 that it nowhere lays down principle of law that the striking out of the defence of a tenant is a pre-requisite for depriving him the benefit accorded to him by the legislature under section 14(2) even though the Controller had otherwise recorded a clear finding in regard to the default committed by the tenant in complying an order passed us 15(1) of the Act.
37. It was held in 2005(3) AD Delhi 30 that if there is no application for condonation, protection u/s 14(2) is lost.
38. In 2003(6) AD Delhi 653 it was held that condonation is third opportunity and is discretion of Rent Controller and not RCT No. 21/09 23 of 31 24 Rent Control Tribunal. In AIR 1996 SC 2951 & 171 (2010) DLT 361 default for one months rent was held to be negligent and careless. It was observed that instead of being protector of weaker, it has become tool in hand of tenant to harass landlord.
39. It was held in 1990 RLR note 131 SC that condonation must be sought before deposit of rent. In 1990 RLR 191 Supreme Court it was held that if there are two consecutive defaults, there should not be condonation. In the present case there are about 24 consecutive defaults.
40. In 1988 RLR 1 Supreme Court defence was struck of for 4/5 days delay in deposit of monthly rent.
41. In Punit Sahni Versus Kailash Sethi 2009 VIII AD Delhi 105 it was held that if tenant wishes to take advantage of beneficial provision of the Act, he must strictly comply with the requirements of the Act.
42. Consequently the second appeal No. 79/09 fails and is dismissed.
RCT No. 21/09 24 of 31 25
43. Reverting back to the first appeal and ground under section 14(1) (c) DRC Act, the parties are at variance about purpose of letting. There is no written agreement of tenancy to show the purpose of letting. Thus the Ld. Trial Court proceeded to decide the purpose of letting from nature of construction, locality and other surrounding circumstances. For doing so it placed reliance on Agan Lal Versus Kapuri Devi 1974 Rajdhani Law Reporter 63, Trilok Chand Tuteja Vs Jamna Dass Chugh 1986(1) RCJ 126, Anil Kumar Jawhar & Anr Vs Atlas Cycle Industries 28 (1989) DLT 233 and Jagmohan Singh Wadhera Vs K.M. Bhatnagar 59 (1995) DLT 707.
44. The Ld. ARC found that admittedly Punjabi Bagh was a residential area. According to petitioner initially a kitchen was let out which was lateron surroendered by the appellant. According to appellant no kitchen was let out. So called kitchen was a small room. The site plan Ex. PW1/1 showed the said space as kitchen and not small room. Design of the RCT No. 21/09 25 of 31 26 building indicated the premises to be residential. RW-1 admitted in cross examination that certain persons were residing in the property where the tenanted premises is situated. Thus from the pre-dominant use and surrounding circumstance, the premises appeared to be residential.
45. In Jeewan Lal Sethi Vs P.N. Nagpal 15 (1979 ) DLT 330 and Dr. B.K. Dewasar Vs K.K. Sapra 121 (2005) DLT 145, the premises were held to be let out for residential purpose even without lavatory, bath room or kitchen.
46. Un-disputedly the appellant/tenant is using the premises for storing his goods of tent material. He had not obtained the consent of the petitioner.
47. The counsel for the appellant relied upon M/s New Garrage Ltd. Versus Khuswant Singh & Another AIR (39) 1952 Punjab 82 where it was held that a breach of covenant is waived or forfeited by receipt of rent. From this he wanted me to hold that since respondent has been accepting rent even after knowing that appellant was using the premises for RCT No. 21/09 26 of 31 27 commercial purpose, the ground of mis-use stand waived. I am unable to agree. Section 14(1) (c) DRC Act requires consent in writing. Act of not taking action cannot be equated with consent in writing. For the same reason decision in D.C. Oswal Versus V.K. Subbiah AIR 1982 SC 184 is distinguishable. Mahabir Singh Versus Anant Ram AIR 1966 Allahbad 214 also does not help for the same reason.
48. The counsel for the respondent urged that purpose of letting can not be assailed even in first appeal as it stands now after amendment of section 38 DRC Act. Now even the first appeal is confined to question of law. He relied Ram Dulari Versus Om Parkash Gupta CM (M) 796-799/2005 decided on 9.4.2010 by our own Hon'ble High Court, Ramesh Bhaskar Kale Versus Harkirat Sodhi RSA NO. 5/03 decided on 8.11.06 by our own Hon'ble High Court, Hanuman Mal Bothra Versus Suraj Mal Jain 167 (2010) DLT 452. He also relied upon Sardar Kartar Singh Versus Chaman Lal RCT No. 21/09 27 of 31 28 AIR 1069 SC 1288 para 8, Mahla Ram Versus Fakir Chand 45 (1991) DLT 508 para 4 and 7, Om Parkash Versus Vaid Shyam Sunder 46 (1992) DLT 214 para 4 and 5 to make out that purpose of letting is question of fact. It is not necessary to enter into the said aspect as I am leaving purpose of letting open.
49. In appeal the grievance of the appellant is that section 14(c) DRC Act requires that misuse should create public nuisance and not only nuisance. The same was countered by the counsel for the respondent/landlord by submitting that there are three alternatives in section 14(5) DRC Act. The three are in the alternative and not cumulative as they are separated by the use of word 'or'. A bare perusal of the language of section 14(5) DRC Act supports the contention of the landlord. It can be either public nuisance or damage to the premises or detrimental to the interest of the landlord. According to the counsel for the respondent his case falls in the third alternative viz detrimental to the interest of the RCT No. 21/09 28 of 31 29 landlord. He appears to be correct in as much as the goods of tent are heavy items such as tables, ballis, iron pipes etc. Frequent taking out of the same and putting back the same is likely to create disturbance and effect the peace of the co- occupant. Undisputedly the landlord has served a notice requiring the appellant to stop misuse, before filing the petition and tenant has failed to stop the misuse.
50. The counsel for the appellant drew my attention towards notice and petition in which it is not mentioned that the alleged misuse was public nuisance or cause damage to the premises or detrimental to interest of landlord. In the absence of the same no eviction order could be passed u/s 14 (1) (c). In support of his submission he relied upon Ram Chander Goel Versus Mohd. Umar 70 (1997) DLT 492. The case in hand is squarely covered by the said decision. The same is binding in this court and this was the reason why I did not dilute further on the purpose of letting in preceding part of this order.
RCT No. 21/09 29 of 31 30
51. The counsel for the respondent submitted that law of pleadings is not to be construed strictly. In support of his submission he relied upon Praveen Saxena Versus Manbir Singh 20 (1981) DLT 61, Ram Sarup Gupta Versus Bishun Narain Inter College and Ors. AIR 1987 SC 1242, Mohd. Yusuf Verus Mohd. Arafeen 20 (1981) DLT 12, Union of India Versus Khas Karanapura Colliery Ltd., AIR 1969 SC 125 para 7, Bhagwati Prasad Versus Chandra Mal AIR 1966 SC 735 paras 10 & 15. They are general in nature. In view of Ram Chand Goel supra the same cannot help the respondent.
52. One of the contention raised by the counsel for the appellant was that petition was barred under order 2 R 2 CPC in as much as earlier the petitioner had filed a petition u/s 14(D) DRC Act and in that petition the ground of misuse was not taken.
53. The counsel for the appellant relied upon Raj Dev Singh Versus Royal Studio 1972 RCJ short note 7 to make out RCT No. 21/09 30 of 31 31 that if all relevant grounds are not mentioned in the earlier petition, filing of second petition is barred by constructive resjudicata. The same is is not acceptable in view of subsequent decision of Hon'ble Supreme Court in Kewal Singh Vs Lalwanti 1980 (1) RCJ 167 Supreme Court in which it was held that order 2 R 2 CPC is not applicable where plaintiff bases his suit on separate and distinct cause of action and chooses to relinquish one or the other of them.
54. As an up shot of the above discussion the former appeal No. RCT-21/09 is partly accepted. Eviction order on the ground of mis user is set-aside. However part of the order vide which ground u/s 14(1) (a) DRC Act was held to be made out is affirmed and maintained.
55. Trial Court record be sent back along with the copy of this order. Appeal file be consigned to Record Room. Announced in open court on this 26th day of April, 2011. (O.P. GUPTA) DJ-III-cum-I/c ASJ (West)/ARCT, Delhi RCT No. 21/09 31 of 31