Delhi High Court
Mr. Charan Singh vs Mr. Nahar Singh on 31 July, 2006
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT
Sanjay Kishan Kaul, J.
1. The respondent/landlord filed a petition for eviction of the petitioner/tenant under Section 14(1)(e) read with Section 25-B of the Delhi Rent Control Act, 1958 (hereinafter referred to as the said Act) on grounds of bonafide requirement. The disputed premises consist of one room with verandah as shown in red in the site plan in property bearing No. 176/4, Bagh Murid Khan, Manohar Basti, Padam Nagar, Rohtak Road, Delhi.
2. The eviction petition set out that the premises had been let out for residential use and the respondent was the co-owner of the premises along with his sister Shrimati Vidya Rani, who had executed a General Power of Attorney in his favor. The premises were stated to be required bonafide by the respondent for his residence as well as for the residence of the members of his family. The family of the respondent was stated to consist of himself, his wife, his four sons, who are all married, their wives and seven grand children. There were also three married daughters, all residing in Delhi and the entire family consist of 30 members out of which 14 are residing with the respondent. The respondent claims that he was in possession of only one room, drawing-cum- dining, kitchen, store, bathroom and latrine on the first floor and three rooms on the third floor besides a kitchen at the mezzanine floor in property No. 3720, Gali Jamadar Wali, Pahari Dhiraj, Delhi. Thus in all five rooms were stated to be in possession of the respondent. It was pleaded that there was no alternative residential accommodation with the respondent though the respondent owned property No. 178/18 and 178/12, Bagh Murid Khan, Manohar Basti, Padam Nagar, Rohtak Road, Delhi and property No. B-1525, Shastri Nagar, Delhi-52 as no portion of these premises were vacant for the residence of the respondent or his family members, as they were occupied by the tenants/trespassers.
3. The respondent claims that he requires one room for himself and his wife, two rooms each for their married sons and their respective families and four rooms for the married daughters, who were living separately but visit along with their respective families, two rooms for the guests and other relatives, one puja room and two study rooms for the grand children.
4. The petitioner contested the eviction petition and it was stated that house bearing No. 3720, Gali Jamadar Wali, Pahari Dhiraj, Delhi was constructed on a plot of 500 sq.yds. and was four storeyed having 12 rooms of big size besides latrines, stores, bathrooms and kitchens, etc. The respondent was alleged to be owner of four houses in Shastri Nagar bearing Nos. B-1523 to B-1526 with each house comprising of six rooms apart from latrine, bathroom and kitchen. It is also alleged that the respondent owned house No. B-1528, Shastri Nagar, Delhi constructed on a plot of 300 sq.yds. having five rooms, which were lying vacant and there were four rooms available with the respondent in property bearing No. B-1525, Shastri Nagar, Delhi. The respondent was also stated to be in possession of property bearing No. 176, Gali No. 1, Padam Nagar, Rohtak Road, Delhi where 23 rooms are lying vacant and the respondent was looking for tenants. One of the rooms was stated to have been let out on 29.11.1996. Another property at Katra No. 178, Gali No. 2, Padam Nagar, Delhi was stated to be in possession of the respondent, which consist of seven rooms, which are lying vacant.
5. The petitioner has also claimed that the respondent was the owner of the property, exaggerated the size of his family and accommodation and the purpose of letting was residential-cum-commercial.
6. The eviction petition went to trial and in terms of the impugned order dated 23.7.1999, the same was allowed in favor of the respondent herein granting six months time to the petitioner herein to vacate the suit property.
7. A reading of the impugned order shows that insofar as the ownership to the premises is concerned the respondent has stated on oath about the ownership and the petitioner in his cross-examination admitted that earlier the father of the respondent was the owner and after his death the respondent has become owner of the suit property. Again insofar as letting out purpose is concerned the factum of the purpose of letting being only residential was admitted by the petitioner in cross-examination. At this stage, it is necessary to deprecate the practice of general denials and false pleas being taken at times by the tenant specially insofar as the purpose of letting is concerned only with the oblique motive of somehow seeking leave to defend. It is trite to say that any party coming to court must do so with clean hands. It is known that if friable issues are raised, the eviction petition must go to trial. An eviction petition for bonafide requirement can only succeed if the purpose of letting is residential. Thus, a general tendency has gained ground which has come to notice in a number of cases where the letting purpose is alleged to be residential-cum-commercial but during trial it is admitted by the tenant that the letting purpose was residential. This is one more case of that category.
8. The size of the family has also been analyzed by the Trial Court consisting of himself, his wife, three sons and their wives and the grand children. There is stated to be no cross-examination even to this averment in deposition of the respondent. The respondent has set out that there is another son Mr. Virender Kumar, who is not residing with him as also three married daughters. The size of the family, thus, stands established.
9. The main controversy relates to the extent of accommodation with the respondent. The respondent has explained in his testimony that in property No. B-1525, Shastri Nagar, Delhi his son Mr. Virender Kumar is residing along with his family in two rooms. There is stated to be no cross-examination on this aspect. The Trial Court has also found that insofar as property No. 176, Padam Nagar, Delhi is concerned no details have been given by the petitioner and alleged that eleven rooms were available with the respondent in the Katra. On the other hand, the respondent has specifically stated that Katra No. 176, Padam Nagar, Delhi is in dilapidated condition. The possession of property No. B-1523, Shastri Nagar, Delhi has been explained by the respondent and it is stated that the same is a temple and the existence of any six rooms has been denied. There is not even a suggestion stated to be made to the respondent that he was making a false statement. The petitioner, in fact, had not even visited the property at any stage.
10. Property No. B-1524, Shastri Nagar, Delhi belongs to Shrimati Vidya Rani, sister of the respondent and there was no cross-examination on this aspect. In respect of other properties, the Trial Court found that the respondent had categorically stated that there was no accommodation available and the mere allegation of the petitioner would not suffice. In case, the petitioner wanted to show that there were some rooms vacant, necessary evidence had to be produced by him in view of the denial of the respondent. Similarly, the extent of property No. 3720, Pahari Dhiraj, Delhi is in dispute as according to the respondent it is built on an area of 80 sq. ft. and not 500 sq.ft. as alleged by the respondent. The respondent has stated so on oath. On the respondent stating in his cross-examination that he would produce the documents in that behalf, the counsel for the petitioner never asked him to produce the documents.
11. The Trial Court has discussed in detail the alleged alternative accommodations stated to be available with the respondent as claimed by the petitioner and come to the conclusion that there was no such suitable residential accommodation available.
12. At this stage, it may be noticed that the jurisdiction of this Court is not to sit as a court of appeal over the findings of the Additional Rent Controller and to reappraise the evidence. The matter pertains only to the respective evidence produced by the two parties about the extent of accommodation and the testimony of the respondent/landlord has remained unrebutted in respect of the explanation given about the other properties alleged by the petitioner to be alternative residential accommodations.
13. The petitioner after eviction petition even filed review petition, which was dismissed by the order dated 2.9.2000. This application was accompanied by another application for condensation of delay under Section 5 of the Limitation Act, since the review application was filed beyond time. Once again, the issue of alternative residential accommodation was sought to be played upon. The Trial Court found that there was delay of three and a half months, which was not explained in filing the application. Despite this, the matter was examined on merits and the Trial Court found no error apparent on the face of the judgment dated 23.7.1999. It was a repeat of the claims about the alternative accommodations being available. The Trial Court rightly noticed that on weighing the evidence on record a particular view has been taken about the nature of the alternative accommodation. The petitioner also sought to put pressure by moving an application for perjury.
14. In my considered view, on a consideration of the matter the Additional Rent Controller cannot be said to have committed a patent error or erroneously exercised jurisdiction for this Court to interfere. The petitioner having backed out of the pleas of the written statement in his deposition, the allegations or truth of alternative accommodation becomes even more suspect.
15. In the end, it may be noticed that undisputedly a revision petition ought to have been filed against the impugned order while instead the proceedings under Article 227 of the Constitution of India were filed. However, in view of already six years passage of time during which the petition has been pending largely on account of the fact that a number of adjournments were sought by learned Counsel for the petitioner either in prosecuting the petition or arguing the matter no purpose was found in adjourning the matter on this account. In fact, learned Counsel for the parties state that in either eventualities, the matter may be examined within the scope of judicial review of the impugned order.
16. Dismissed.
17. Interim orders stand vacated.