Delhi District Court
Shri Dinesh Kumar vs Shri Avinash Kumar on 19 April, 2014
IN THE COURT OF SH. CHANDER SHEKHAR
DISTRICT & SESSIONS JUDGE (NORTHWEST)
DISTRICT COURTS : ROHINI : DELHI.
ARCT No. 9/12
In the matter of:
1. Shri Dinesh Kumar
2. Shri Love Kumar,
Both sons of Late Shri Bua Ditta Mal,
Both Residents of WZ215 (old)
& New Number WZ853 (Part),
Rani Bagh, Delhi110034. ........Appellants
Versus
Shri Avinash Kumar,
S/o Late Shri Banwari Lal,
R/o : House No. WZ853 (Old No.WZ215),
Rani Bagh, Shakurbasti, Delhi110034. ..........Respondent
Date of institution : 16.01.2012
Date of hearing arguments : 03.04.2014
Date of Judgment : 19.04.2014
J U D G M E N T
1 This Judgment shall govern the disposal of an appeal filed by the appellants/ tenant U/s 38 of Delhi Rent Control Act, 1958 against the Judgment dated 05.12.2011 passed by the Ld. Additional Rent Controller, ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 1 of 28 Rohini Courts, Delhi in Eviction Petition No.1272/06 whereby the Ld. Additional Rent Controller, Rohini Courts has been pleased to allow the petition of the respondent U/s 14(1)(d) and U/s 14(1)(h) of the DRC Act and has been pleased to order for eviction of the appellants from the tenanted premises.
2 Brief facts, as stated, necessary for disposal of the present appeal, are that the petitioner filed the petition with regard to Property No. WZ215 (Old) & New No. WZ853 (Part), Rani Bagh, Delhi110034 (henceforth 'suit premises') which consists of a room of size 11'3" x 13'9"
along with kitchen, bathroom and half varandah which is in front of the tenanted room with adjoining room as shown in red colour in the site plan.
It is stated that the appellants are tenant in the suit premises at the monthly rent of Rs.133/ exclusive of electricity and water charges.
It is stated that the tenant Smt. Devi Rani during her life time had acquired a vacant possession of house bearing No. 270, Rishi Nagar, Rani Bagh, Delhi34 as residence and after locking the aforesaid tenanted premises, shifted to the aforesaid house with her entire family members and started living there and on 01.05.2001 she died while she was living in the aforesaid house and thereafter none of the appellants is residing in the said tenanted premises which is still lying locked.
It is further stated that the residence i.e., H. No.270 (supra) of the appellants where they are residing is more than sufficient and suitable to ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 2 of 28 them and do not require the tenanted premises for them.
3 During the proceedings before the Ld. Trial Court, the appellants/ respondents filed amended Written Statement to the eviction petition denying almost all the contents of the petition and praying therein for dismissal of the petition. On the other hand, the respondent/petitioner filed replication to the written statement whereby he reaffirmed and re asserted the contents of the petition and denied the contents of the submissions of the appellants.
4 On these allegations, the respondent/petitioner Sh. Avinash Kumar filed the eviction petition under Section 14(1)(d) & 14(1)(h) of the Delhi Rent Control Act, 1958, against the appellants/respondents, which was allowed by the Ld. Addl. Rent Controller vide Judgment dated 05.12.2011. Hence, the present appeal.
5 Notice of the present appeal was issued to the respondent pursuant to which appearance was made but no reply to the appeal was filed on behalf of the respondent.
6 I have heard the Ld. Counsel for the parties and have carefully gone through the impugned Judgment passed by the Ld. ARC as well as the entire record including the case law filed and relied upon by the appellants. ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 3 of 28 7 During the course of arguments, Ld. counsel for the appellants, inter alia, submitted that the Ld. Trial Court has failed to appreciate that PW1 has not been able to prove his case and failed to produce any document regarding the fact that the deceased Smt. Devi Rani and her family shifted from the tenanted premises or having acquired any alternative house. It is further argued that Smt. Devi Rani had allegedly acquired and shifted from the tenanted premises about 1718 years ago but there is no document in respect thereof and the petition is time barred. The said PW also could not prove that the tenanted premises was lying locked six months prior to filing of the eviction petition.
It is further submitted that the Ld. Trial Court wrongly came to the conclusion that the electricity bills filed by the appellants show minimum/ zero consumption and that the electricity consumption at the suit premises remained constant or minorly changed six months prior to the filing of the eviction petition.
It is further submitted that Smt. Devi Rani did not acquire any property during her lifetime, much less the property bearing No. 270, Rani Bagh, Delhi in the name of her son. Shri Anil Kumar, after his marriage, and owing to acute paucity of accommodation acquired the said property in the name of his wife for his use and not for the use of the other family members. Therefore, the respondent could not prove the necessary ingredients of Section 14(1)(d) & 14(1)(h) of the DRC Act.
In support of his contentions, Ld. counsel for the appellants has ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 4 of 28 relied upon the following Judgments :
A. B.R. Mehta v. Smt. Atma Devi & Ors., AIR 1987 SC 2220, B. Smt. Revti Devi v. Kishan Lal (Delhi), 1970 RCR 71, C. Shankar Nana Waychal & Ors. Vs. Mohan Ganesh Date and another, XII 1985 (2) All India Rent Control Journal 668, D. Ganpat Ram Etc. vs. Gayatari Devi, 1987 RLR (SC) 398, E. RK Bhatnagar v. Sushila Bhargav & Anr. AIR 1987 Delhi 363, F Sita Ram Talwar v. Jai Dev Sharma, 1979 DLT 225.
8 On the other hand, the Ld. counsel for the respondent, during the course of arguments, has relied upon the Judgment delivered by the Ld. Trial Court and the evidence led there in the eviction petition. Findings regarding S. 14(1)(h) of the DRC Act :
9 Before proceeding further, I would like to reproduce the relevant provisions of Section 14(1) (h) of the DRC Act for ready reference :
PETITION UNDER SECTION 14(1)(h) OF DRC ACT "14. (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant;
ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 5 of 28 Provided that the Controller may, on an application made to him in the prescribed manner, makes an order for the recovery of possession of the premises on one or more of the following grounds only namely:
(h) that the tenant has, whether before or after the commencement of this Act, acquired vacant possession of, or been allotted, a residence."
10 In view of the above provisions of law, it would be appropriate to weigh and sift the material available on record and the impugned judgment passed by the Ld. ARC which has been assailed by the appellants. So far as the ground U/s 14(1)(h) of the DRC is concerned, respondent/ petitioner being son of late Sh. Banwari Lal, after his death, became the landlord. Smt. Devi Rani W/o Lae Sh. Bud Ditta Mal was a tenant in the suit premises @ Rs.133/ per month which she used to pay to the present respondent/petitioner. It is further stated that the tenant late Smt. Devi Rani during her life time had acquired a vacant possession of house bearing No.270/, Rishi Nagar, Rani Bagh, Delhi34 as residence and after locking the tenanted premises, shifted to the aforesaid house along with her entire family members and started living there. It has further come on record that the tenant Smt. Devi Rani expired on 01.05.2001 while she was residing at the aforesaid house and thereafter none of appellants is residing in the said tenanted premises. The appellants in their amended written statement have denied this fact and submitted that they are bonafide residents of the premises in question till date. It is also denied that Smt. Devi Rani had ever ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 6 of 28 shifted to alleged premises in Rani Bagh, Rishi Nagar, Delhi. 11 It is stated by the appellants in their amended Written Statement that the respondent/petitioner has not taken any action against Smt. Devi Rani for acquiring alternative accommodation and lying premises in question locked, during her life time. The respondent/ petitioner filed the eviction petition on vague allegations only on 08.11.2006. There is no explanation from the respondent/petitioner for not filing the eviction petition immediately from the date of alleged cause of action and as to why the eviction petition has been filed at this belated stage. Analysis of evidence on record :
12 So far as the evidence on record is concerned, during the course of cross examination of the respondent/petitioner as PW1, apart from other things, it is stated that Devi Rani shifted from tenanted premises during her life time about 17 to 18 years back and she expired on 01.05.2001. PW1 has clearly stated that he has no document to show that they shifted about 17 or 18 years back. No notice was given to Smt. Devi Rani after shifting as mentioned above during her life time. No notice was given to her LRs also. PW1 has further testified that he came to know that Smt. Devi Rani had acquired an alternative vacant possession of H. No.270, Rishi Nagar, Rani Bagh, Delhi34 during her life time, about 17 or 18 years ago. He has no document to show that she acquired said property ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 7 of 28 13 On the other hand, RW1 Sh. Dinesh Kumar whose testimony was recorded on 16.12.2009, apart from other things, so far as this ground is concerned, he stated that his brother Sh. Deepak Kumar got married about 16 or 17 years ago and thereafter, he got separated and started residing in separate house No.270, Rishi Nagar, Rani Bagh, Delhi. His parents resided with him till their death. His other brother Sh. Anil Kumar got married about 1213 years ago and he also got separated and started residing in house No.270, Rishi Nagar, Rani Bagh, Delhi. The house No.270, Rishi Nagar, Rani Bagh, Delhi was constructed about 10 or 12 years ago. His brother Sh. Anil Kumar is the owner of the said house No.270, Rishi Nagar, Rani Bagh, Delhi which is built up on ground floor, first floor and second floor.
14 Furthermore, RW1 has admitted the relationship of landlord and tenant between the respondents and the appellants. He denied that all the family members have shifted to WZ270, Rishi Nagar, Rani Bagh, Delhi prior to death of their mother.
15 The Ld. Trial Court while dealing with this ground has been pleased to hold as follows :
"In the present case the petitioner has alleged that the respondents have acquired the premises No.270 (supra). The petitioner has not placed on record any document in support of his ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 8 of 28 submission that H.No. 270 (supra) was purchased by Smt. Devi Rani, original tenant or by all the legal heirs of Smt. Devi Rani. The respondent in his cross examination has admitted that said H.No. 270 (supra) was purchased by his brother Shri Anil Kumar in his own name. Now the question has arisen for adjudication whether the alternative accommodation acquired in the name of one of the legal heirs is the accommodation acquired by the tenant. The Hon'ble Supreme Court in a judgment reported in AIR 2002 SC 1262 has held that "the alternate accommodation acquired in the name of the son, was for benefit of entire family and was suitable as alternate accommodation". In the present case the respondent himself has admitted that the alternate accommodation has been acquired by one of the cotenant/legal heirs of deceased tenant. The petitioner has alleged that the said accommodation is for all the legal heirs of the family of the tenant Smt. Devi Rani and respondents have failed to prove on record that the said premises has been acquired by Shri Anil Kumar only and it is not for the use of the entire family. In the absence of anything contrary on record it can very well be presumed that H. No. 270 (supra) was acquired for the benefit of entire family because it is an admitted case that one of the legal heir Shri Deepak Kumar had already shifted to that residence before shifting of Shri Anil Kumar in whose name the said premises was purchased. The respondents have failed to ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 9 of 28 examine the said owner Shri Anil Kumar to prove that it was for his exclusive use and not for the benefit of entire family.
Therefore, in view of above discussions I am of the considered opinion that petitioner is able to prove that the respondents/tenants have acquired alternative accommodation for the purpose of residence. Therefore, all the necessary ingredients for grant of relief u/s 14(1)(h) of DRC Act are proved by the petitioner. Accordingly, the petition u/s 14(1)(h) of DRC Act is allowed and an eviction order is passed in respect of the suit premises in favour of the petitioner and the respondents are directed to handover the peaceful and vacant possession of of the tenanted premises i.e. WZ215 (Old) & New No.WZ853 (Part), Rani Bagh, Delhi110 034 to the petitioner within one month from the date of passing this judgment".
16 But the facts which emerge in view of the pleadings of the parties on record and the case of the respondent/landlord/ petitioner are that Smt. Devi Rani, during her life time, acquired an alternative vacant possession of H. No.270, Rishi Nagar, Rani Bagh, Delhi34 and after locking the tenanted premises, she shifted to her aforesaid House No. 270 (supra) and started residing with her entire family members where she resided till her death.
ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 10 of 28 17 The Hon'ble Supreme Court in the Judgment cited as AIR 2002 SC 1262 has held that "the alternative accommodation acquired in the name of the son, was for benefit of entire family and was suitable as alternative accommodation".
18 The word 'acquire' has been defined in the Oxford Dictionary which means "gain by oneself and for oneself; or come into possession". The words "acquired vacant possession" mean that the tenant obtains vacant possession of another premises by virtue of a right vested in him. Such acquisition of vacant possession may by contract, sale or devolution or in any other manner.
19 It is not necessary that the premises obtained by the tenant should be on a permanent basis like purchase as observed in the Judgment titled as Shyam Sundar v. Khan Chand, 1966 DLT 223.
20 The words used in clause (h) are not "acquired ownership" of the premises but "acquired vacant possession". One can acquire vacant possession of premises for residence even without becoming owner thereof and there is no warrant for the proposition that clause (h) would not be attracted if the new premises, of which the tenant has acquired vacant possession for residence, have been taken by him on rent and not by purchase; as observed in the Judgment titled as Shyam Sundar v. Khan ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 11 of 28 Chand, 1966 DLT 223.
21 "Acquired". When proviso (h) makes the tenant liable to eviction, its effect is to divest the tenant of his right of tenancy. The intention of the legislature in divesting the tenant of his right seems to be based on the fact that the tenant has legally acquired another residence as of right; as held in Ravti Devi v. Kishan Lal, 1970 RCR 71. This is why the words used in proviso (h) are "acquired vacant possession of, or been allotted a residence". If the tenant were to build a residence for himself, he will be the legal owner thereof and the house would be vacant for him to live therein. The same would be the effect if the tenant were to "acquire vacant possession" of any other residence, namely, a residence in which no other person like a tenant is living as of right and which, therefore, is immediately available for the residence of tenant.
22 Acquisition By The Son of The Tenant : Justice Jahagirdar held that it is only when the tenant himself builds or acquires vacant possession or is allotted a suitable residence he can be evicted. If accommodation has been acquired by the sons of the tenant that cannot be the ground for eviction of the tenant; as held in the matter of Shankar Nana Waychal and others. v. Mohan Ganesh Date and Others, 1984 (2) RCR (Rent) 426 (Bombay). But the Supreme Court of India took a different opinion and held that if the tenant had acquired a flat in the name of one of ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 12 of 28 his sons for the benefit of the entire family, then he is liable to be evicted; as held in Padmavati Devadatta Kamat (Smt.) and others v. Vijay Kumar Narayan Mehandale and another, 2002(1) RCR(Rent) 341 (SC). The position of law is now settled that if the tenant acquires possession of another residential accommodation out of his own funds and has a legal right to reside there, he is liable to be evicted irrespective of the fact in whose name the property has been purchased.
23 Devaluation of tenancy, effect. Under the Delhi Rent Control Act, the surviving spouse or any son or daughter, etc., becomes tenant only after the death of the original tenant subject to the conditions prescribed. Thus where the son of the tenant acquires a residence during the lifetime of the tenant and on the death of the tenant his said son becomes the tenant, in such a case this clause will not be attracted as the rights of tenancy devolved only subsequent to the acquisition of residence and as there was no acquisition of residence after the devolution of tenancy rights on the son, as held in the case titled as 'Abdul Sattar v. Khutejabi (2003) 5 SCC 647. 24 Occupation without legal right. A tenant is having a vacant possession of a residence if he has a right to move into 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 a residence within the ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 13 of 28 meaning of this clause. A mere occupation of a new residence by the tenant without any legal right to do so would not be covered by the proviso (h); as held in the matter of Revti Devi vs. Kishan Lal 1970 RCR 71. For instance, if the tenant were to stay in a friend's house as a mere licensee at will or in a hotel without an enforceable right to stay there, he is liable to be turned out from it at any time.
25 In Vijay Kumar v. Sardar Begum, SAO No.79D of 1966 decided by Hon'ble Chief Justice Mr. Dua on September, 1967, it was clarified that acquisition of vacant possession of a residence under Section 14(1)(h) means something more than a licence. The acquisition must be a permanent character, i.e., under a lease or as an owner. In that case, the vacant possession which the tenant obtained was residence with his father inlaw. Relying on the term acquisition of vacant possession, it was held that though the tenant had obtained a shelter he had not really acquired a residence. Similarly, it was pointed out that a person must build a residence for himself and not for another.
26 Subsequent event. In the case titled as Autar Krishan Bhatnagar v. Kanwal Narain, 1983(1) RCJ 6f (Del.), it has been clearly held that subsequent events can also be taken into account to mould the relief. ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 14 of 28 27 The Ld. Trial Court in the impugned Judgment has been pleased to observe that the respondent (appellant herein) himself has admitted that the alternative accommodation has been acquired by one of the cotenants/ legal heirs of the deceased tenant. The Ld. counsel for the respondent (petitioner) has argued that the said accommodation is for all the legal heirs of the family of the tenant Smt. Devi Rani and the appellants have failed to prove on record that the said premises has been acquired by Shri Anil Kumar only and it is not for the use of the entire family. In the absence of anything contrary on record, it can very well be presumed that H. No.270 (supra) was acquired for the benefit of entire family because it is an admitted case that one of the legal heirs Shri Deepak Kumar had already shifted to that residence before shifting of Shri Anil Kumar in whose name the said premises was purchased. The appellants have failed to examine the said owner Shri Anil Kumar to prove that it was for his exclusive use and not for the benefit of entire family. However, in view of the pleadings and evidence , the case of the respondents is that Smt. Devi Rani during her life time have acquired the vacant possession of property No.270 (supra) and after locking the tenanted premises shifted with entire family members in property No.270 (supra) and started living there. It is not the case of the respondent at any point of time in the pleadings that Shri Anil Kumar purchased the property for the benefit of the entire family. The Ld. Trial Court accordingly pleased to place the burden of proof upon the appellants. ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 15 of 28 28 The burden of proof has two distinct meanings - Namely (i) as a matter of law and pleadings, and (ii) as a matter of adducing evidence. Section 101 of the Evidence Act deals with the former and S. 102 with the latter. The first remains constant but the second shifts. In a claim application, therefore, the burden of proof in the first sense, certainly lies on the claimant. If he examines himself and his witness, if any, and if the evidence is found to be acceptable, the onus shifts on the tortfeasor to prove those circumstances, if any, which dislodge the assertions of the claimant. If the tortfeasor fails to prove before the Court any fact or circumstances which tends to affect the evidence led by the claimant, the claimant would be entitled to ask the Court to hold that he has established the case and, on that basis to make a just order. It would thus appear that though the legal burden, the burden as a matter of law and pleadings remains constant on the claimant the burden as a matter of adducing evidence changes often times as the trial of the claim petition progresses.
29 The burden of proof is not static, and may shift during the course of the evidence. Thus, while the burden initially rests on the party who would fail if no evidence is led at all, after the evidence is recorded, it rests upon the party against whom judgment would be given if no further evidence were adduced by either side i.e. on the evidence on record. 30 In the matter of Ramchandra vs. Rajendra Shrikrishna ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 16 of 28 Deshmukh & Ors, (2007) 6 Supreme Court Cases 737, the Hon'ble Supreme Court has held that "any suit for possession on strength of titleburden of proof was on the plaintiff to establish that title. No doubt in appreciating the case of title set up by the plaintiff, the court was also entitled to consider the rival title set up by the defendants. But the weakness of the defence or the failure of the defendants to establish the title set up by them, would not enable the plaintiff to a decree. There cannot be any demur to these propositions".
31 In view of the above discussions, I am of the view that the respondent has failed to discharge the initial onus to prove his own case, in view of the pleadings and evidence on the record. As stated in the pleadings and is relied upon, it is not the case of the respondent anywhere on record that the tenant acquired the property bearing No. 270 (supra) in the name of one of her sons for the benefit of the entire family. The burden was upon the respondent/ landlord to prove that 'a person shall be liable to be evicted from the rented premises if while being a tenant, he acquires vacant possession of, or is allotted a residence. The word "tenant" in the beginning of the clause cannot be lost sight of and the case would be covered by the above clause only if the tenant acquires vacant possession of, or is allotted a residence. An act of acquisition of vacant possession or allotment of a residence by or to a person before he became a tenant would not attract the above clause as it cannot be said in such a case that the tenant has acquired ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 17 of 28 vacant possession of or been allotted a residence. Even otherwise in view of the Judgment in the matter of Abdul Sattar (supra), where the son of the tenant acquires a residence during the lifetime of the tenant and on the death of the tenant his said son becomes the tenant, in such a case this clause will not be attracted as the rights of tenancy devolved only subsequent to the acquisition of residence and as there was no acquisition of residence after the devolution of tenancy rights on the son. The respondent ought to have brought best piece of evidence before the Court substantiating specifically that the tenant has acquired a vacant possession in the name of one of her sons for the benefit of the entire family. Had there been this averment and the evidence, the appellants were liable to be evicted on this ground. 32 Furthermore, the position of the law is now well settled that if the tenant acquires possession of another residential accommodation out of his own funds or from the funds of the family and has a legal right to reside there, he is liable to be evicted irrespective of the fact in whose name the property has been purchased. There is nothing on record to show that deceased Devi Rani had/has legal right to reside in the residential accommodation purchased by the son of deceased Smt. Devi Rani or that the same was purchased by her in the name of one of her sons for the benefit of entire family and/ or from the funds of the tenant or the family for the benefit of the entire family or the son purchased the same for the benefit of entire family. Hence, such a presumption and observations by the Ld. Trial ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 18 of 28 Court are not tenable in the eyes of law.
33 Apart from the above facts, the landlord/ petitioner/ respondent has failed to satisfy this Court why he did not file the petition against the tenant Smt. Devi Rani on the ground that she acquired vacant possession of residential accommodation during her life time and why he kept on waiting and filed the present petition after her death. Further it is stated in the cross examination of PW1 that he came to know that Smt. Devi Rani had acquired an alternative vacant possession of H. No.270, Rishi Nagar, Rani Bagh, Delhi34 during her life time about 17 or 18 years back. The cross examination was recorded on 16.07.2009. The Eviction petition was filed by the landlord/ respondent on 17.11.2006. In that eventuality also, serious question stands raised about the limitation for the filing of the eviction petition in view of the Judgment in the matter of Ganpat Ram Etc. vs. Gayatari Devi, 1987 RLR (SC) 398 wherein it has been categorically held by the Hon'ble Supreme Court that Landlord must file eviction suit without delay which under Art.66, Limitation Act must be within 12 years. 34 It is further to be noted that non filing of the petition earlier by the landlord against the deceased tenant Smt. Devi Rani also clearly raises the presumption that the landlord was aware that the property is neither of the tenant nor the same is purchased for the benefit of the entire family. Had it not been so, the landlord/ respondent would have filed the eviction petition ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 19 of 28 earlier. There is no explanation what stopped the landlord from filing eviction petition earlier and there is no explanation as to why the landlord took such a long time to file the petition U/s 14(1)(h) of the DRC Act that too after the death of tenant Smt. Devi Rani. In this case, the respondent has failed to prove any legal right of Smt. Devi Rani in the property bearing No. 270, Rishi Nagar, Rani Bagh, Delhi34. It cannot be presumed by any imagination and even otherwise, taking into consideration the above discussions, that the property was purchased by Shri Anil Kumar from the funds of the family and/or for the benefit of the entire family. 35 The limitation, as contended and is apparent on the face of the record, is squarely covered under Article 66 of the Limitation Act. On this aspect, it has been clearly held in the matter of Ganpat Ram case (supra) that 'the time would begin to run from the date of knowledge'. 36 It is clear that the eviction petition was filed at a belated stage and is clearly barred by limitation.
Hence, the impugned Judgment on the ground of Section 14 (1)
(h) of the DRC Act allowing the eviction petition in respect of the suit premises is liable to be set aside. Accordingly, the impugned Judgment allowing the petition on the ground under Section 14(1)(h) of the DRC Act is set aside and the appeal is partly allowed on this count. ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 20 of 28 Findings regarding impugned Judgment on S. 14(1)(d) of the DRC Act : 37 It is well settled proposition of law that under Section 38 of the DRC Act, the Addl. Rent Control Tribunal is to act as an Appellate Court only on a question of law. In this regard, in 'Ram Dulari thru. L.Rs'. Vs. Om Parkash Gupta and Anr. MANU/DE/1017/2010, our Hon'ble Delhi High Court has been pleased to observe as under :
"12. I also consider that the learned Additional Rent Control Tribunal exceeded its jurisdiction by entering into an area which was prohibited. It is prohibited for Additional Rent Control Tribunal to reappreciate the facts and change the finding of fact given by Additional Rent Controller."
38 Also, in Kulwant Singh and Anr. Vs. Arjun Singh MANU/DE/9677/2006, our Hon'ble Delhi High Court has been pleased to observe as under :
"7. If the matter is examined in terms of aforesaid, it will be found that it is not the function of this Court to re appraise the evidence. There are concurrent findings by both the courts below, i.e., the ARC and the ARCT. In fact, under Section 38 of the said Act, the ARCT is to act as an Appellate Court only on a question of law."
39 Furthermore, in Dr. Mrs. Sushil Puri and Ors. Vs. Shri Jai Gopal and Ors.MANU/DE/9637/2006, our Hon'ble Delhi High Court has ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 21 of 28 been pleased to observe as under :
"9. An important aspect which cannot be lost sight of is that the legislature in its wisdom has amended the said Act whereby the appeal to the Tribunal under Section 38 of the said Act has been confined to only a question of law."
40 And also, in Smt. Kiran Sajjan and Ors. Vs. Smt. Swarnkanta Mahajan MANU/DE/9022/2006, our Hon'ble Delhi High Court has been pleased to observe as under :
"5. It cannot lose sight under the provisions of the said Act that the appeal lies to the Tribunal under Section 38 of the said Act only on a question of law. This was in terms of the legislative intent as a conscious decision in December, 1988 prior whereto the appeal was both on an error of law. These aspects have been emphasised to set forth the contours within which the impugned orders have to be scrutinised."
41 In the present appeal, there is no question of law involved and what is involved in the present Appeal so far as ground under Section 14(1)(d) of the DRC Act is concerned, are mere facts and the reappraisal of the same, hence, the same is liable to be dismissed on this sole ground. However, even otherwise, I do not find any flaw or infirmity in the impugned Judgment dated 05.12.2011 passed by the Ld. Addl. Rent Controller, Rohini Courts, Delhi so far as eviction order in favour of the respondent and against the appellants under Section 14(1)(d) of the DRC ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 22 of 28 Act is concerned. The Ld. Rent Controller has taken into consideration all the evidence and the documents placed on record in his right perspective as per law while deciding the petition under Section 14(1)(d) of the DRC Act. 42 Adverting back to the facts and circumstances of the present appeal so far ground under Section 14(1)(d) of the DRC Act is concerned, the respondent/ petitioner filed the petition under Section 14(1)(d) of the DRC Act before the Ld. Trial Court seeking eviction of the suit premise on the ground neither the tenant nor any member of his family has been residing in the suit premises for a period of six months immediately before the date of filing of the application for ejectment.
43 In the light of the material available on record, the respondent is able to prove all the necessary ingredients for the grant of relief under Section 14()1) (d) of the DRC Act. The respondent has clearly proved on record that there exists relationship of landlord and tenant between the parties; the suit premises was let out for residence purposes only and neither the appellants nor any of their family members was residing since six months immediately before filing the eviction petition. The Ld. Trial Court has taken correctly into its consideration all the ingredients of Section 14(1)(d) of the DRC Act in his right perspective after properly appreciating the pleadings of the parties, evidence adduced on record and the material placed, relied and proved on record on behalf of the parties. ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 23 of 28 44 The Ld. Trial Court has correctly held that the present petition is filed in the month of November 2006 and the period of six months from the date of filing needs to be considered. The Ld. Trial Court has correctly appreciated and relied upon the following electricity bills :
Bills dated/for the month of Total Units consumed December, 2005 45 February, 2006 0 April, 2006 45 June, 2006 34 August, 2006 0 October, 2006 22 Bill dated 25.10.2006 22 45 The abovesaid electricity bills have been filed by the appellants,
and accordingly the Ld. Trial Court has correctly relied upon the same. The abovesaid electricity bills filed by the appellants show minimum/zero consumption during the relevant period i.e., six months immediately before the filing of the eviction petition. The perusal of the electricity bills reveal that electricity consumption at the suit premises remained constant or minorly changed for the period of last six months immediately before the filing the eviction petition. On this issue, the Ld. Trial Court has correctly relied upon the Judgment reported as Sita Ram Talwar v. Shri Jai Devi Sharma, 1979 DLT 225 wherein the Hon'ble High Court of Delhi has been ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 24 of 28 pleased to observe as under :
"The meter reading of the electricity consumed at the premises had remained constant for over six months immediately before the filing of the petition and the tenant had failed to produce his ration card to show that he had drawn any ration at the premises during the period and his own case was that he had been going away from Delhi , though for a short period to live with his son. It was held that the tenant had not resided in the premises for six months immediately preceding the filing of the eviction petition and was liable for ejectment under Clause (d) of the proviso to Section 14(1) of the Act."
46 Furthermore, the Ld. Trial Court has correctly relied upon the Judgment reported as R. K. Bhatnagar vs. Smt. Sushila Bhargava & Anr., AIR 1987 Delhi 363 wherein the Hon'ble High Court of Delhi has been pleased to observe as under :
"It is true that non consumption of electricity by a tenant over a long period may not in itself be sufficient to warrant an inference of non residence by the tenant but it is certainly an important piece of corroborative evidence and it tilts the balance in favour of the respondent landlady when the entire evidence is evaluated on the touchstone of preponderance of probabilities."
It is also held that :
ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 25 of 28
"It is indeed not comprehensible that there would have been virtually no consumption of electricity during the whole period of about a year and a half had the family of the appellant been actually residing in the house in question. They would have surely paid electricity bills/ charges to the landlady. But none has come forward to depose to this effect."
47 In the present case, the zero/ minor consumption from the electricity connection installed at the suit premises has been proved on record. The documents were filed by the appellants themselves, therefore, there is no question of doubt about the authenticity or validity of the electricity bills filed by the appellants. The appellants have failed to explain the zero consumption or the minor consumption of the electricity during the relevant period at the suit premises. Therefore, the testimony of the respondent is corroborated by the consumption of the electricity at the suit premises and relying upon the principle of "preponderance of probability", I also, on reappraisal, hold that the appellants were not residing at the suit premises since the last six months immediately before filing the eviction petition before the Ld. Trial Court.
48 It is also pertinent to mention here that the appellants have stated that her mother Smt. Devi Rani resided till her death in the suit premises. However, the respondent stated that Smt. Devi Rani had also shifted to the newly acquired property No.270(supra). The respondent ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 26 of 28 during the course of cross examination had confronted the appellants with the death certificate Ex.RW1/P1 of their mother Smt. Devi Rani. In the death certificate Ex.RW1/P1, the place of death of Smt. Devi Rani is mentioned as B270, Rishi Nagar, Rani Bagh, Shakur Basti, Delhi. The Death Certificate falsifies the stand of the appellants that their mother was residing at the suit premises till her death. The appellants have failed to give any explanation regarding the address of their mother mentioned in the Death Certificate.
49 The Ld. Trial Court has correctly held that the testimony of the respondent that the appellants and their family members were not residing in the suit premises since the last six months immediately before filing the eviction petition. The testimony of the respondent is corroborated by the electricity consumption at the suit premises and death certificate Ex.RW1/P1 of original tenant Smt. Devi Rani. The appellant(RW1) in his testimony has denied the submissions of the respondent but the testimony of RW1 is not corroborated by any other document. Even the LPG slips filed by the respondent are not proved as per law. Therefore, the Ld. Trial Court relying upon the principle of 'preponderance of probability' has correctly held that the story of the respondent is more probable than the defence raised by the appellants. Accordingly, the Ld. Trial Court has correctly held that the respondent is able to prove that neither the appellants nor any members of their family were residing in the suit premises since six months immediately before filing of the eviction petition. ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 27 of 28 50 Hence, in view of the Judgments in Sita Ram Talwar and R. K. Bhatnagar (supra), facts of the present case, evidence and documents evaluated, appreciated and correctly taken into consideration by the Ld. Trial Court, I do not find any reason to interfere in the findings of Ld. Trial Court. I see no substance in this appeal as nothing could be pointed out from the contentions of the appellants.
51 In the result, I hold that this appeal, so far as eviction on the ground of Section 14(1)(d) of the DRC Act is concerned, is devoid of any merits, and is, accordingly, dismissed. The Order and the Judgment of the Ld. Trial Court allowing eviction petition U/s 14(1)(d) of the DRC Act with costs and passing the eviction order in favour of the respondent and directing the appellants to hand over the peaceful and vacant possession of the tenanted premises within one month from the date of passing of the impugned judgment is upheld. However, parties are left to bear their own costs. Record of the Trial Court be sent back along with an attested copy of the Judgment passed today.
52 The Appeal file be consigned to Record Room, after completing the necessary formalities.
Announced in the open Court Today on this 19th day of April, 2014 (CHANDER SHEKHAR) Distt. & Sessions Judge (NorthWest) Rohini Courts, Delhi ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 28 of 28 ARCT No. : 9/12 19.04.2014 Present: None.
Vide separate Judgment of the even date, the impugned Judgment allowing the petition on the ground under Section 14(1)(h) of the DRC Act is set aside and the appeal is partly allowed on this count. So far as eviction on the ground of Section 14(1)(d) of the DRC Act is concerned, the appeal is devoid of any merits, and is, accordingly, dismissed and the Order and Judgment of the Ld. Trial Court, on this ground, is upheld. However, parties are left to bear their own costs. Record of the Trial Court be sent back along with an attested copy of the order passed today. Appeal file be consigned to Record Room, after completing the necessary formalities.
(CHANDER SHEKHAR) Distt. & Sessions Judge (NorthWest) Rohini Courts, Delhi ARCT No. 9/12 Dinesh Kumar & Ors. vs. Avinash Kumar Page 29 of 28