Delhi District Court
Sh. Nand Gopal Jethi vs Shri Lal Fabiani on 26 September, 2018
IN THE COURT OF SH. AJAY NAGAR, COMMERCIAL CIVIL
JUDGE-CUM-ADDITIONAL RENT CONTROLLER (WEST),
TIS HAZARI COURTS, DELHI.
ARC No: 26035/2016
1. Sh. Nand Gopal Jethi,
S/o Late Sh. K.R. Jethi,
R/o 2210-4825, Hazel Street,
Burnaby, B.C. Canada V5H4N4.
2. Sh. Chander Kumar Jethi,
S/o Late Sh. K.R. Jethi,
R/o 1980, East 55th Avenue,
Vancouver B.C. Canada V5P1Z9,
through his attorney
Sh. Nand Gopal Jethi,
presently at premises bearing
No. H-21, Rajouri Garden,
New Delhi.
....Petitioners
VERSUS
Shri Lal Fabiani,
S/o Sh. J. Fabiani,
R/o House No.H-21,
First Floor, back side portion,
Rajouri Garden,
New Delhi. ...Respondent
Date of Filing : 15.02.2012
Date of Judgment : 26.09.2018
JUDGMENT
1. In the present eviction petition, the petitioners are seeking eviction of the respondent, in respect of three rooms, kitchen, W.C., bath, verandah, common passage and stairs situated in the back side on the 1st floor of the property bearing no. H-21, Rajouri Garden, New Delhi, as more specifically shown and ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 1 / 32 delineated in red colour in the site plan annexed with the petition (hereinafter referred to as 'tenanted premises') on the ground under Section 14(1) (h) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'D.R.C. Act').
2. Briefly stated the case of the petitioners are that they are owners/landlords of the property bearing No. H-21, Rajouri Garden, New Delhi (hereinafter referred to as 'suit property'), which property was originally owned by their deceased father Sh. K.R. Jethi, who unfortunately expired in the year 1985 leaving behind a registered Will dated 08.01.1985 duly registered before the concerned Sub Registrar, on 10.01.1985, thereby he bequeathed the suit property in favour of the petitioners in equal share. It is further averred that after the death of their father, the petitioners applied for letter of administration in respect of the said Will which was granted by the Court of District Judge, Delhi, vide certificate dated 28.03.1995 and on the basis of the said letter of administration, the petitioners became the joint owners.
It is further averred that the respondent was inducted as a tenant in respect of two bed rooms, one drawing-cum-dining room, kitchen, latrine, bath etc. on the 1st floor ( in back portion) of the suit property by the late father of the petitioners some where in the year 1966 at a monthly rent of Rs.150/- exclusive of all other charges for residential purposes and after taking the tenanted premises on rent, he started using the same for residential purposes.
It is further averred that unfortunately, the father of the respondent expired and after his death, the respondent was accepted as a tenant in respect of the tenanted premises some ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 2 / 32 where in the year 1989.
It is further claimed that as per the knowledge of the petitioners, on 28.01.2011 the respondent has acquired an alternative residential accommodation bearing Flat No.290, Pocket III, Madipur, 1st floor, New Delhi, in the category of S.F.S. Flats from D.D.A vide I.D. No. 21475, application no. 104346 dated 28.01.2011 vide file no. F.137(57)85/sfs/pt. And the C.D. has also been issued to this effect in the name of Shri Lal J. Fabiani.
It is further contended that since the respondent has already acquired an alternative accommodation, respondent is liable to be evicted from the tenanted premises as provided U/S 14(1)(h) of DRC Act.
3. Perusal of the record shows that the written statement was filed by the respondent on 28.03.2012.
In his written statement, the respondent inter-alia took the preliminary objections that the present petition is not maintainable U/S 14(1)(h) of DRC Act as the tenancy of respondent is both for commercial as well as for residential purposes. It is averred that tenanted premises were let out for composite purposes i.e. both for commercial as well as residential purposes from the day of inception of the tenancy and the same has been used by the respondent for residence as well as commercial purposes. It is further averred that tenanted premises consists of two bed room, one drawing room, one dining room, kitchen, latrine, bath on the 1 st floor (back portion) and one big hall, one room and store on front side of the 1st floor along with roof above the 1st floor and common passage, both back side common passage as well as ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 3 / 32 front side common passage and part of the back side courtyard on the ground floor.
It is further contended that tenancy was not created in the year 1996 but was created in the year 1964 and the father of the respondent had died in the year 1995 and not in the year 1989 as claimed by the petitioners.
It is further averred that respondent with his late father have been using the tenanted premises for commercial-cum- residential purposes. In the year 1965, the father of the respondent got contract from the Italian Company and the father of the respondent started his business under the name & style of M/s Compagania De Expotisacion and the aforesaid company was registered at the tenanted premises. Respondent has been continuously using the tenanted premises for commercial purposes also and the entire facts have been in the knowledge of the petitioners that the tenanted premises are being used for residential-cum-commercial purposes and the petitioners have full knowledge of the same as the same was let out for the same purpose. Even some of the rent receipts have been issued by the petitioners showing the tenanted premises as business establishment.
It is further contended that the late father of the petitioners later on let-out the parking space/part of courtyard on the ground floor of the suit property to the father of the respondent by increasing rent by Rs.50/- per month. And half of the courtyard portion has been let out to the respondent for parking purpose.
It is further averred that in the year 1982 or so, the aunt of the petitioners i.e. real sister of the late father of the petitioners namely Smt. Sarla Kapoor lost her tenancy in Subzi Mandi and ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 4 / 32 needed the accommodation urgently. As such, the father of the petitioners requested the father of the respondent to accommodate them on the 1st floor front portion i.e. one hall, one room and store which was let out to the father of the respondent earlier for some period till the son of Smt. Sarla Kapoor gets an accommodation in Delhi University where he was employed and ultimately, the son of Smt.Sarla Kapoor namely Sh. Pramod Kapoor got the accommodation allotted by the Delhi University somewhere in the year 2000 and both Smt. Sarla Kapoor and Sh. Pramod Kapoor shifted to their said accommodation after vacating the said one hall, one room and store and the possession of the same was handed over to the respondent by the petitioners.
It is stated that respondent was allotted the said flat by the DDA in the year 1986 and thereafter the flat was changed by DDA in the year 1992.
It is further contended that the said flat was allotted to the respondent much earlier i.e. in the year 1986 before the respondent became tenant under the petitioners. As such the respondent has not acquired any accommodation after he became the tenant of the petitioners.
4. Thereafter, replication was filed by petitioners. In the replication, the petitioners denied the stand taken by the respondent and reiterated original stand taken in the petition.
In the replication, the petitioners inter-alia stated that various documents filed herein would show that the tenanted premises were let out only for residential purposes and not for composite purposes. It is further claimed that no rent receipt has ever been issued by the petitioners for commercial ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 5 / 32 purposes and the father of the respondent was let out this tenanted premises for residential purposes only and after the death of the father, the respondent was also accepted as tenant for residential purposes only.
5. Thereafter, evidence was led by both the parties. Petitioners examined 04 witnesses in the present matter.
PW-1 Sh. Jai Pal Singh, Assistant, DDA Housing, Vikas Sadan, New Delhi who relied upon the documents Ex. PW-1/1 to PW-1/8.
PW-2 Ms. Poonam Anand, Assistant Finance Officer, BSES, District Janak Puri, Hari Nagar, Delhi who relied upon the documents Ex. PW-2/1 to PW-2/16.
PW-3 Sh. Surjeet Singh, LDC from the office of House Tax department, MCD South Zone, Ashok Nagar, Near Tilak Nagar, New Delhi who relied upon the document Ex. PW3/1(colly.)(OSR).
PW-4/ petitioner No. 1 Sh. Nand Gopal Jethi, S/o Late Sh. K.R. Jethi, R/o 2210-4825, Hazel Street, B.C. Canada, V5H4NA, presently R/o H.No. H-21, Rajouri Garden, New Delhi who relied upon the following documents:-
Ex.PW1/1 to Ex.PW1/37 which are be read as EX.PW4/1 to Ex.PW4/37. Ex.PW4/16 is to be read as Mark A, Ex.PW4/18 be read as mark B & Ex.PW4/19 is to be read as Mark C. Ex.PW4/32, Ex.PW4/33, Ex.PW4/35, Ex.PW4/14, Ex.PW4/15, Ex.PW4/6, Ex.PW4/4, Ex.PW4/3, Ex.PW4/7, Ex.PW4/10, Ex.PW4/7, Ex.PW2/20 were original seen and returned. (objected to by the counsel for the respondent as only the photo copies have been filed and not the originals. After hearing the Ld. Counsels, it was observed by the Ld. Predecessor that ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 6 / 32 objections shall be decided at the stage of final arguments).
On the other hand, the respondent examined 06 witnesses including himself. RW-1/ respondent Sh. Lal Fabiani has relied upon the documents Ex. RW-1/1 to RW-1/25.
RW-2 Sh. J.B. Hooda, Manager, Foreign Exchange Department, Reserve Bank of India, New Delhi who had brought the summoned record i.e. destruction certificate Ex. R-2.
RW-3 Sh. Jai Pal Singh, Assistant, DDA, Lease Administration Branch Housing, New Delhi who had brought the summoned record i.e. letters issued from DDA Ex. RW-1/21 and RW-1/22.
RW-4 Sh. Jagdish Chand, Ahlmad from the office of the Labour Commissioner, 5, Sham Nath Marg, Delhi-54, who had brought a letter in respect of weeding out the summoned record Ex. RW-4/1.
RW-5 Sh. Sanjiv Narang, Chief Section Supervisor, Rajouri Garden, MTNL, Rajouri Garden, Delhi, who could not bring the summoned record being old records.
RW-6 Sh. G.S. Chauhan, Sr. Manager, UCO Bank, Model Basti, Delhi, who could not bring the summoned record being old records.
All the witnesses were cross examined at length by Ld. Counsels for both the parties.
6. I have heard the arguments advanced on behalf of the parties at length.
Ld. Counsel for the petitioner relies on Sec. 14(1)(h) of D.R.C. Act as well as testimonies of witnesses examined by the ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 7 / 32 petitioners. She further contends that respondent has not disputed the acquisition of DDA flat as alleged by the petitioners. She further submits that first issue raised by the respondent is that the tenanted premises were let out for residential-cum-commercial purposes, so section Sec. 14(1)(h) of D.R.C. Act is not applicable to the present case. She also submits that the second issue raised by the respondent is that DDA flat was alloted before the commencement of tenancy of respondent. She also relies upon the testimonies of the witnesses claiming that it is proved on record that the tenanted premises was let out for residential purposes only. She relies upon the electricity connection record, house tax record and survey report etc. claiming that the the tenanted premises were let out for residential purposes only and not for composite purposes. She also claims that there is no dispute in respect of landlordship as well as ownership of the petitioners raised by the respondent. She claims that the petitioners came to know about the allotment of DDA flat to the respondent only in the year 2011. It is argued that the respondent himself has admitted to have been alloted such DDA flat in the year 1986. She also claims that respondent fraudulently took the signatures on two rent receipts from the father of petitioners mentioning word "Business". But all other rent receipts do not show this word i.e. "Business". She further submits that respondent has manipulated that the tenanted premises were being used by the respondent as commercial use. She further submits that the respondent is residing in Spain for the last many years and he is having status of N.R.I/ O.S.I. As such, he is not running the commercial activities in the tenanted premises. She also claims that it is not possible to run factory in the tenanted premises ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 8 / 32 when there are 7-8 people already residing. She also refers to the testimony of respondent wherein the respondent has admitted that there is no sign board on the tenanted premises regarding his factory/ commercial activities. Lastly, she prays to the court to pass an eviction order against the respondent.
On the other hand, Ld. Counsel for respondent submits that tenanted premises were let out for composite purposes i.e. both for commercial as well as residential purposes from the day of inception of the tenancy and the same has been used by the respondent for residence as well as commercial purposes. He further submits that the respondent was allotted the said flat by the DDA in the year 1986 and thereafter the flat was changed by DDA in the year 1992. He further submits that the said flat was allotted to the respondent much earlier i.e. in the year 1986 before the respondent became tenant under the petitioners; as such the respondent has not acquired any accommodation after he became the tenant of the petitioners. Lastly, he prays to court to dismiss the present petition.
7. It is expedient to discuss certain case law relied upon by both the Ld. Counsels for the parties which are as under:-
Prakash Wati Bali vs Manish Dewan 1996 RLR 369; in which it was observed that:-
"(5) In the case of Indra Shanna (supra) it was held that the legal heirs inherited the tenancy rights as co-
tenants and not as joint tenants. They have unity of possession but no unity of title. The order of eviction against one tenant is not binding against other co-tenants. In Mohd. Azeem (supra) the Hon'ble Supreme Court has held that "where the original tenant died and one of his sons built a house in the same city and moved to it, the tenancy of other sons, widow and daughter of the deceased tenant did not terminate and they continued to be the tenants in their own rights being covered by the ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 9 / 32 definition of tenant." Similarly, it was held in the case of Textile Association (India) Bombay Unit (supra) that "an ex parte decree obtained against mother and son was not binding on one of the sons who was not imp leaded."
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 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 ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 10 / 32 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."
In case titled as Ganpat Ram Sharma & Ors. vs Smt. Gayatri Devi, 1987 SCR (3) 539; 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 another 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 ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 11 / 32 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."
On the other hand, Ld. Counsel for respondent relied upon the following case law :-
In 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 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 ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 12 / 32 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 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:
ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 13 / 32"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."
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. Kishan Lal, 2 nd 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 ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 14 / 32 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."
8. Landlordship/Ownership:-
Perusal of record shows that petitioners have claimed themselves landlords as well as owners of the tenanted premises.
On the other hand, the respondent has not disputed the landlordship and ownership of the petitioners. It is well settled that admitted facts need not be proved as such in view of admission by the respondent, ingredients in respect of landlordship and ownership are satisfied.
9. 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 tenanted premises should have been let out for residential purpose only.
(ii). The Tenant has acquired a vacant possession of or been allotted, a residence.
10. Let us discuss the ingredients:-
ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 15 / 32(i). The tenanted premises should have been let out for residential purpose only.
11. The petitioner has claimed to have let out the tenanted premises for residential purposes only. On the other hand, the respondent has claimed that the father of the respondent was let out for composite use i.e. commercial as well as residential purposes and the respondent was using it for composite purposes and the petitioner were aware of this fact. As such, as per the claim of the respondent, Section 14(1)(h) is not applicable to this case as the purpose of letting out was not residential only.
12. I have gone through the record which shows that in the Written statement, the respondent has claimed that he was using the tenanted premises for both the purposes i.e. commercial as well as for residential purposes but he has nowhere mentioned in the W.S. what was the purpose of letting out.
13. In my view, while deciding the eviction petition U/Sec. 14(1)(h) D.R.C. Act, the court is required to determine the purpose of letting out of the tenanted premises and the court is not supposed to take into consideration whether the tenanted prmeises was later on used for commercial purpose or for commercial-cum-rsidential purpose.
Even if it is assumed for the sake of arguments that it was used later on for commercial-cum-residential purpose by the respondent after having been let out for residential purpose, section 14(1)(h) D.R.C. Act certainly be applicable to the ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 16 / 32 present case as purpose of letting out matters for the purpose of 14(1)(h) D.R.C. Act and not the use of tenanted premises later on by the respondent.
14. Record shows that in the present case, the petitioner has claimed that the tenanted premises were let out orally by the father of the petitioners in favour of father of respondent in 1966. Moreover, no written agreement has been placed by the petitioners as well as the respondent in respect of purpose of letting out.
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.
15. Perusal of the record shows that the petitioners have stated that the tenanted premises consists of bedroom, bathroom, W.C. kitchen which itself shows that the purpose of letting out was supposed to be residential only and not the commercial use as such kind of premises are not used by the people for commercial purpose but for residential purpose only.
16. The respondent has placed some documents showing business communication between him and other business parties. But in my view these documents do not prove that the purpose of letting out was residential-cum-commercial and not residential only.
ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 17 / 3217. Respondent has also placed on record some rent receipts in which commercial/business has been mentioned therein but in my view that also does not prove the purpose of letting out as commercial-cum-residential purpose and not residential only.
18. In view of the aforementioned 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 cannot be sought on the premises let out for commercial use or for any other purpose i.e. mixed use.
19. 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 ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 18 / 32 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 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 ben alloted another premises of the same kind.
20. 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.
21. 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. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 19 / 3222. 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.
23. In the present case, the petitioner has claimed that the father of the petitioner was let out for residential purpose only and the tenancy was crated orally in 1966 by the father of the petitioner.
On the other hand, respondent has stated that the tenancy was oral and created in the year 1964 but the tenanted premises was for use as residential-cum-commercial purpose since beginning of tenancy and they are using it for composite purpose. As such, claim of the respondent is that oral tenancy was created in 1964 and not in 1966 as alleged by the petitioner.
Further claim of the respondent is that in the year 1965 the father of the respondent started business in the tenanted premises under the name and style of M/s Compagania de expolisacian and he has also claimed to have obtained telephone connection in the name of aforesaid company.
24. I have carefully perused the judicial record which shows that the respodent has placed on record a number of documents but he has not placed even a single document in respect of running of business by his father in the year 1965 in the aforementioned Italian company.
However, the respondent has placed on record document in respect of running of business in the name of M/s Export International in the year 1977 but it does not prove that the purpose of letting out was residential-cum-commercial. It ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 20 / 32 merely shows the running of business in the tenanted premises in the year 1977 and nothing else.
25. Perusal of the record also shows that the respondent has not placed on record in respect of starting of Italian Company in 1965 by his father as such, no document has been placed on record in respect of running of Italian Company in 1965.
Even if it assumed that the Italian Company as alleged by the respondent started in 1965 by father of the respondent, it does not prove purpose of letting out as composite. As the claim of the respondent is that tenanted premises were let out in the year 1964 whereas such Italian company was started in the year 1965 by the father of the respondent. As such, it does not prove that letting out purpose in 1964 was residential-cum- commercial use.
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.
26. The petitioners have given detils of the accommodation i.e. three rooms, kitchen, W.C. bedroom, verandah, passage and stores and shown such construction in the site plan also.
On the other hand, respondent has also accepted that his father was inducted as tenant in two bedrooms, one drawing room, one dining room, kitchen, latrine, bathroom on the first floor in the back side and one big hall, one room and store etc. on front side of first floor and the respondent has also ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 21 / 32 annexed the site plan with the written statement which also shows that the tenanted premises are residential premises.
As such, construction of tenanted prmises clearly shows the tenanted premises as residential one.
27. It is on record that the tenanted premises were let out either in 1966 as claimed by the petitioner or in 1964 as claimed by the respondent. As such, the tenanted premises were let out more than 50 years ago.
In my view, the court is to determine purpose of letting out, 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 1964 or 1966 i.e. more than 50 years ago.
Furthermore, it is undisputed fact that the tenanted premises are situated on the first floor and not on the ground floor. It is also well known that the ground floor is always more suitable for commercial purpose. Record clearly shows that it is not claimed by the respondent that the tenanted premises were let out for commercial purpose but the case of the resondent is that it was let out for residential-cum-commercial purpose. As such, residential use of the tenanted premises were admitted by the respondent. As such, the only issue is to be determined by the court whether tenanted premises were let out for ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 22 / 32 commercial purpose also but the petitioner has claimed that it was let out for residential only. The respondent has also claimed that he is using it as residence as well as for commercial use.
Record shows that the respondent has placed on record a few rent receipts showing that the same mentioned the tenanted premises for business use also.
28. I have carefully and minutely gone through those rent receipts Ex. RW-1/23 to RW-1/25 on record which of the year 1997, 1998 and 2011 which mentioned the word "Business" on the aforesaid rent receipts but I have also gone through the rent receipts placed on record by the petitioners which do not show that the purpose of letting out has business/commercial use. Furthermore, record shows that the respondent has claimed that the tenanted premises were let out in 1964 and started first business in 1965. But the respondent has not stated that the tenanted premises were being used in the year 1964 when it was let out and he has not disclosed what sort of business or commercial activities were going on in the year 1964.
29. As discussed earlier this court is to determine the purpose of letting out as purpose of letting out only is relevant for the purpose of 14(1)(h) D.R.C. Act. These rent receipts do not prove the purpose of letting out as residential-cum- commercial purpose. Even for the sake of arguments it is assumed that these rent receipts placed on record by the respondent are genuine, in my view it shows that the purpose of letting out as business i.e. commercial and it does not show ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 23 / 32 the purpose of letting out as composite. As such, these rent receipts contradict the case of the respondent as the case of the respondent is that purpose of letting out was composite and not the business/commercial only.
30. As such, rent receipts filed by the respondent do not help the respondent. Furthermore, it is admitted by the RW-1/ respondent during the cross examination that the petitioners' father used to issue rent receipt till his death i.e. 1985 but the repsondent has filed only three rent receipts and other were not produced. As such, an inference may be drawn for those other rent receipts for not having mentioned 'business' word in rent receipts. RW-1 also deposed that he does not have any document to show that the father of the petitioners let out the tenanted premises for composite use.
Testimony of RW-1 clearly shows that the respondent has neither denied or admitted that the house tax regarding back portion of ground floor and entire first floor is imposed for residential purpose. As such, he has impliedly admitted that the house tax imposed was as residential.
Furthermore, RW-1 respondent has also admitted that the electricity connection of entire first floor is domestic connection. Furthermore, RW-1/ respondent has not denied surveyor report filed by the MCD which shows that first floor was found as residential purpose. During the cross examination RW-1/ respondent admitted that he does not have any document regarding starting of Italian company by his father in 1965-1966.
ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 24 / 3231. 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 residential-cum- commercial purpose.
As such, one of the ingredients U/Sec. 14(1)(h) D.R.C. Act in respect of purpose of letting out is satisfied.
(ii). The Tenant has acquired a vacant possession of or been allotted, a residence.
32. Record shows that the petitioners have alleged that the respondent has been allotted DDA flat in Madipur. On the other hand, the respondent has admitted that he was allotted a DDA flat as alleged by the petitioners. As such, allotment of a flat for residence to the respondent is not disputed and it is an admitted fact by the respondent.
33. The contention of the respondent is that although he has acquired the DDA Flat as alleged by the petitioners but the same was allotted to him before the commencement of his tenancy.
The claim of the respondent is that he was allotted the DDA flat concerned in the year 1986 and it was changed in the year 1992 by the DDA. As such, respondent himself has admitted that he has been allotted the flat for residence but the claim of the respondent is that he was allotted before starting of his tenancy and not during his tenancy.
34. Record also shows that the tenanted premises were let out in the year 1996 as per the claim of petitioner. On the other ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 25 / 32 hand, the respondent has claimed that the tenanted premises were let out to his father in the year 1964. Whereas the respondent has himself admitted that he was allotted flat in the year 1986 by the DDA.
As such, the question before the court is whether tenancy of respondent in such case will start from the year when the tenanted premises were let out to the father of the respondent or the year when the respondent was accepted as tenanted in the year 1995 after the death of his father.
35. Perusal of U/S 14 (1) (h) of DRC Act reveals that the petitioners have to prove that the respondent/tenant has acquired vacant possession of a residence or he has been allotted a residence.
Perusal of record shows that respondent has claimed that Section 14(1) (h) of DRC Act is not applicable to present case as he became tenant in the tenanted premises only in the year 1995 after the death of his father who passed away in the year 1995. The claim of the respondent is that he was allotted the new premises for residential as alleged by the petitioner in his petition but that flat was allotted in the year 1986 and that point of time he was not the tenant in the tenanted premises and it was his father who was tenant in the year 1986. As such, as per the claim of respondent, he has not been allotted the flat during his tenancy and he has been allotted before the commencement of his tenancy, i.e., 1995.
On the other hand, the petitioners have claimed the tenancy of father of petitioner started in 1966 and the respondent was tenant in the tenanted premises when he was allotted the DDA flat.
ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 26 / 3236. Perusal of record shows that the respondent himself has admitted to have been allotted the DDA flat in the year 1986. Even certain documents have been placed on record by both the parties to prove the allotment of DDA Flat. As such, the year of allotment of DDA flat is also not disputed and it is proved on record as 1986.
Record further shows that petitioners have stated in his eviction petition that father of respondent Sh. J. Fabani was inducted as a tenant in the tenanted premises in the year 1966 for his residential purposes thereafter the father of the respondent expired and after his death, the respondent was accepted as tenant in the tenanted premises somewhere in the year 1989 increasing the rent from Rs.150/- to Rs.250/- p.m. As such, the petitioners themselves have admitted that respondent was accepted as tenant in the year 1989.
37. On the other hand, the claim of the respondent is that his father expired in the year 1995 and not in the year 1989. However, the respondent has admitted that he was accepted as tenant on the same terms and conditions by the petitioners after the death of father of respondent. As such, the claim of the respondent is that he became tenant only in the year 1995 and not in the year 1989.
Record further shows that neither the petitioner nor the respondent has placed on record the death certificate of father of the respondent.
However, the replication to W.S. shows that petitioners have not specifically denied the year of death of father of respondent in the year 1995. Furthermore, during the cross-
ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 27 / 32examination, PW-4/petitioner No. 1/Sh. Nand Gopal Jethi himself has admitted that father of respondent expired in the year 1995 and he has further deposed that respondent posed himself to be a tenant even prior to his father's death.
As such, perusal of testimony shows that the death of father of respondent was in the year 1995.
38. As discussed earlier, it is admitted by both the parties that the tenancy of the respondent was commenced only after the death of father of respondent and it is already proved on record that the death took place in the year 1995. As such, tenancy of the respondent started in the year 1995.
39. On the other hand, the respondent has admitted that he was allotted the DDA fat in the year 1986. Even PW1/DDA official was summoned by the petitioners in respect of allotment of such flat to the respondent who has produced the summoned record and stated that allocation of the flat was made by the DDA on 18.06.1986, PW1/2 in the name of the respondent and final demand letter was issued on 22.05.1992. Ex.PW1/6 and possession letter was issued on 29.05.1995 Ex.PW1/7 (colly).
As such, testimony of witnesses and documents placed on record clearly show that the DDA flat was allotted to the respondent only before the year 1995, i.e., before becoming of tenant in the tenanted premises by the respondent.
40. Section 14(1)(h) of DRC Act lays down that such acquisition of vacant possession or allotment should be during the tenancy and not before the commencement of tenancy. If the tenant has been allotted a residence before the ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 28 / 32 commencement of tenancy, Section 14(1)(h) shall not be applicable and tenant shall not be liable to be evicted from the tenanted premises U/S 14(1)(h) of DRC Act.
The Ld. Counsel for the petitioners have claimed that the respondent was tenant even when his father was tenant in the tenanted premises and Ld. Counsel heavily relies upon the definition of "tenant" as laid down in Section 2(l) of DRC Act.
41. I have carefully and minutely gone through the definition of 'tenant' and I have also given the thoughtful consideration to the argument of Ld. Counsel for petitioners. It is expedient to reproduce the definition, i.e. Section 2(l) of DRC Act.
Section 2 (l) of D.R.C. Act :-
" "Tenant" means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be, payable, and includes-
(i). a sub-tenant;
(ii). Any person continuing in possession after the termination of his tenancy; and
(iii). In the event of the death of the person continuing in possession after the termination of his tenancy subject to the order of succession and conditions specified, respectively, in explanation I and explanation II to this clause, such of the aforesaid persons-
(a). Spouse,
(b) Son or daughter, or where, there are both son and daughter, both of them,
(c). Tenant,
(d). daughter-in-law, being the widow of his predeceased son, as had been ordinarily living in the premises with ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 29 / 32 such person as a member or members of his family upto the date of his death, but does not include,-......"
42. I have carefully gone through the entire Section 2(l) of DRC Act but in my view Section 2 (l) is of no help to the petitioners. As per Section 2 (l), 'tenant' means any person by whom or on whose behalf the rent of any premises is payable or would be payable but in the instant case, the respondent was neither paying the rent on his own name in 1986 nor his father or anyone else was paying rent in the year 1986 on his behalf. As such, he can not be considered tenant in the year 1986.
43. Further, section 2(i) lays down that 'tenant' includes sub- tenant. Certainly, in the present case respondent is not sub- tenant.
Section 2(l)(ii) shows that any person continuing in possession after the termination of his tenancy is also a tenant. This clause, i.e. 2(l)(ii) is also not applicable to the present case as respondent is not the person in the year 1986 continuing in possession after the termination of his tenancy as it was the father of the respondent who was tenant in the year 1986 and not the respondent.
Section 2(l)(iii) says that 'tenant' includes in the event of death of the person continuing in possession after the termination of his tenancy, I.e., (a) spouse (b) son or daughter
(c) parents (d) daughter in law who are ordinarily residing in the premises as member of the family upto his death.
Certainly, this clause 2(l)(iii) is also not applicable to the present case as in the year 1986 it was respondent's father who was tenant and not the respondent and in the present case the ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 30 / 32 original tenant was passed away in 1995 and at that time father of the respondent was continuing in possession and his father was not continuing in possession after the termination of his tenancy. As such, the clause 2(l)(iii) also not applicable to the present case.
Certainly, the main clause I.e. 2(l) is applicable to the respondent in the present case wherein it is defined that any person by whom or on whose behalf rent of premises is payable. In the present case, the respondent started paying rent only after becoming tenant in 1995. As such, he became tenant only in the year 1995 after the death of his father and certainly it was his father who was tenant in the year 1966 to 1995 and not the respondent and he became the tenant only in the year 1995.
The respondent might be residing with the tenant i.e. his father during the period i.e. 1966 to 1995 but it does mean that he became tenant also with his father.
Section 2(l) definition of 'tenant' does not confer upon the family member of the tenant the status of 'tenant' during the life time of 'tenant'. The family members of the tenant such as spouse, son, daughter etc. get the status of tenant only after the death of person continuing in the possession after the termination of his tenancy.
44. As such, in view of discussions earlier and well settled proposition of law and statute, the respondent was not tenant before the year 1995 and he was allotted the DDA Flat only before the commencing of his tenancy in 1995. As such, 14(1)
(h) is not applicable to the present case.
ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 31 / 3245. 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 failed to prove all the ingredients of Sec. 14(1)(h) of D.R.C. Act. As such, the present eviction petition stands dismissed.
46. File be consigned to Record Room after due compliance.
Digitally signed by Announced in the open court AJAY AJAY NAGAR Date:
on 26th September, 2018 NAGAR 2018.09.26
(This judgment contains 32 pages) 15:44:49
+0530
(AJAY NAGAR)
Commercial Civil Judge-cum-
Additional Rent Controller,
West District, THC/Delhi.
ARC No. 26035/16 Nand Gopal Jethi & Anr. vs. Lal Fabiani Page 32 / 32