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Delhi High CourtIndian Cases

Mr. P.S. Parmar vs Smt. Sudarshan Handa on 14 July 2006

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Delhi High Court
Mr. P.S. Parmar vs Smt. Sudarshan Handa on 14 July, 2006
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT

Sanjay Kishan Kaul, J.

1. Allowed subject to just exceptions.

CM (M) No. 1030/2006 and CM No. 9326/2006

2. The petitioner is aggrieved by the order of the Additional Rent Control Tribunal dated 19.5.2006 disposing of the appeals by a common order. The proceedings in appeals arose out of an eviction petition filed by the respondent/landlord under Section 14(1)(a), (d) and (h) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the said Act). The petition under Section 14(1)(d) of the said Act was rejected but the petition, insofar as the provisions of Section 14(1)(a) and (h) of the Said Act are concerned was allowed. The provisions of Section 14(1)(a) of the said Act deal with non- payment of rent and in view of second opportunity available to the tenant under the provisions of the said Act an order was passed under Section 15(1) of the said Act, so as to give benefit under Section 14(2) of the said Act. The said benefit was extended by the order dated 20.8.2004

3. The grievance of the petitioner in this behalf is that there was no case made out for eviction under Section 14(1)(a) of the said Act.

4. The ground under Section 14(1)(h) of the said Act is on account of the petitioner having acquired alternative residential accommodation, which was also found in favor of the respondent/landlord. The relevant provisions of the said Act are as under:

14. Protection of tenant against eviction. – (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 favor of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:
(a) that a tenant has neither paid nor tendered the whole or the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served of him by the landlord in the manner provided in 106 of the Transfer of Property Act, 1882 (4 of 1882).
(b)….
(c)….
(d)….
(e)….
(f)….
(g)….
(h) that the tenant has, whether before or after the commencement of this Act, acquired vacant possession of, or been allotted, a residence.
(i)….
14 (2). No order for the recovery of possession of any premises shall be made on the ground specified in Clause (a) of the proviso to Sub-section (1) if the tenant makes payment or deposit as required by Section 15:

Provided that no tenant shall be entitled to the benefit under this sub-section, if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months.
15. when a tenant can get the benefit of protection against eviction. – (1) In every proceeding of the recovery of possession of any premises on the ground specified in Clause (a) of the proviso to Sub-section (1) of Section 14, the Controller shall, after giving the parties an opportunity of being heard, make an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of the rent were legally recoverable from the tenant including the period subsequent thereto up to the end of the month previous to that in which payment or deposit is made and to continue to pay or deposit, month by month, by the fifteenth of each succeeding month, a sum equivalent to the rent at that rate.

5. The main defense taken by the petitioner is that the respondent had no locus to file the eviction petition as he was not the landlord/owner of the tenanted premises. It is this aspect which is again sought to be dealt with by the learned Counsel for the petitioner.

6. The aforesaid contention arises on account of the fact that the property was originally owned by Shrimati Mela Devi, who executed a Will dated 17.4.1973 bequeathing the property to the respondent, her natural daughter with the condition that during the lifetime of her adopted daughter Shrimati Pushpa Malhotra and her husband, Shri Khairati Malhotra, they would have the right to occupy and live on the first floor of the property and Shrimati Pushpa Malhotra was entitled to let out the first floor and to realise proper rent for house during her lifetime and that of her husband. The respondent was, however, appointed the sole executrix of the Will and the probate was granted in probate case No. 499/1994 on 1.4.1998.

7. It is the contention of the learned Counsel for the petitioner that there was no evidence brought on record that Shrimati Malhotra or Shri Malhotra were no more alive and it is a case of no evidence rather than a non-appreciation of evidence with the result that this Court in exercise of jurisdiction under Article 227 of the Constitution of India is entitled to look into this legal aspect. It is trite to say that the matter is one of leading the evidence and this Court cannot act as an Appellate Court and seek to interfere with the same in exercise of jurisdiction under Article 227 of the Constitution of India.

8. The plea of the petitioner has been considered in detail by the Trial Court as well as by the Appellate Court. The Appellate Court has come to the conclusion that the legal ownership has always remained with the respondent/landlord and thus she is also the landlady. The respondent has also been made responsible for administration of the property of the deceased, which include the tenant in occupation of the property. It has, thus been concluded that if the tenant does not pay rent to the beneficiary and the ground for eviction are available to the legal owner of the property then such a person has locus standi to file an eviction petition.

9. The relevant aspect has been noticed by the Appellate Court that it is not the case of the petitioner herein that he had tendered or paid rent to Shrimati Pushpa Malhotra or her husband. The testimonies which have come on record show that Shrimati Pushpa Malhotra had passed away prior to the filing of the eviction petition while her husband died during the pendency of the eviction petition. It is in these circumstances that the Appellate Court has come to the conclusion that legal owner cannot remain as a mute spectator and the tenant cannot enjoy the property without paying the rent and continue to live in the suit property. A finding of fact has been recorded that there were outstandings of rent which were pending payment.

10. Insofar as this plea in respect of Section 14(1)(h) of the said Act is concerned, it has been found that a flat was allotted by the DDA to the petitioner bearing No. 4, Sector 18, Block-B, Pocket-II, Rohini, Delhi. The petitioner even admitted in his examination-in-chief that such an allotment was made in the year 1991 but claimed that he had transferred the rights in respect of the said property. Such a transfer was not established on record. Be that as it may the Appellate Court was rightly of the view that in such a case the petitioner had acquired an alternative residential property.

11. The petitioner is not paying rent to anyone, acquired an alternative flat but did not shift in the same and continues to occupy the tenanted premises.

12. The Trial Court and the Appellate Court have both properly exercised jurisdiction and there is no patent error so as to call for interference by this Court under Article 227 of the Constitution of India.

13. Dismissed.