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Delhi High CourtIndian Cases

Prabha Patel vs Satinder Singh on 19 November 1997

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Delhi High Court
Prabha Patel vs Satinder Singh on 19 November, 1997
Equivalent citations: 1998(44)DRJ664
Author: N.G. Nandi
Bench: N.G. Nandi
JUDGMENT

N.G. Nandi, J.

1. This petition under Section 25-B(8) of the Delhi Rent Control Act (hereinafter referred to as ‘the Act’) is directed against the decree for possession passed in the proceedings under Section 14(1)(e) of the Act giving six months time to vacate under Section 14(7) of the Act refusing leave to contest under Sections 25-B(4)& (5) of the Act to the respondent/tenant.

2. The first limb of the argument on behalf of present petitioner (original respondent/tenant) by Mr. Makhija, learned Counsel is that the earlier petition under Section 14(1)(e) of the Act was withdrawn with liberty to file fresh petition on payment of cost which cost has not been paid even after filing of the second petition; that the second petition could not have been proceeded and the same ought to have been stayed by the Trial Court; that the cost ought to have been paid before the filing of the second petition; that despite the order dated 4.3.1994 by the Trial Court, no actual payment of cost has been made and it was a mere offer to pay and till the date, the cost is not paid.

3. As against this, it is submitted by Mr.Vijay Kishan, learned Counsel for respondents, that the petitioner/landlord sought directions for allowing him to pay the cost of Rs. 250/- imposed on him at the time of granting permission to withdraw the previous petition with liberty to file fresh petition on the same cause of action.

4. The perusal of the order dated 4.3.1994 passed by the Trial Court suggests that the petitioner/landlord had sought direction for allowing him to pay the cost of Rs. 250/- which was imposed on him while granting permission to withdraw previous petition with liberty to file fresh petition on the same subject matter. It is suggested that the respondent/tenant vehemently objected to the granting of the direction sought. The Trial Court granted the permission sought.

5. It is pertinent to note that neither in the examination-in-chief the respondent/tenant stated that she has not been paid the cost of Rs. 250/- nor it is suggested to the petitioner/landlord during the cross-examination that he did not pay the cost of Rs. 250/- after the order dated 4.3.1994. It is also pertinent to note that in the present revision petition, it is not the ground contended that the cost of Rs. 250/- has not been paid to him even after seeking direction vide order ‘dated 4.3.1994. Of course, in the revision petition, the fact of cost having been imposed and the same having not been paid has been stated but without making the same a ground for revising the order of eviction under Section 14(1)(e) of the Act.

6. It may also be seen that the order whereby the cost of Rs. 250/- has been imposed on the petitioner/landlord for permitting withdrawal of the previous petition with liberty to file fresh petition on the same subject matter has not been filed on the record of this case so as to suggest the payment of cost by the petitioner/landlord to be a condition precedent before the institution of the second petition. It may also be noted that the respondent/tenant, at no point of time, prayed before the Trial Court to stay the proceedings for the non-compliance with the order requiring the payment of cost by the petitioner to the respondent.

7. In absence of the respondent stating a word in her evidence or suggesting to the petitioner/landlord during her cross-examination about the non-payment of cost despite the order dated 4.8.1994 and for the reason that the same has not been made a ground in the present petition, following the principle laid down in the case of M/s. Konkan Trading Company Vs. Suresh Govind Kumar Tarkar & Others, , I am of the view that this contention on behalf of the present petitioner does not deserve any credence and the same is noted for being rejected.

8. Another limb of argument advanced by Mr. Makhija for the petitioner is that the first floor of 28, Khan Market could have been used for residence since the same is a residential property/premises and available with the respondent/landlord and that the first floor of 28, Khan Market premises are misused.

9. As against this, it is submitted by Mr. Vijay Kishan, learned Counsel for respondent that Khan Market is a commercial area and as per the evidence of the respondent/tenant except one or two flats in Khan Market rest are used for commercial purposes only.

10. Page 301 of the Trial Court record suggests that the same is an inspection report of the year 1970. A perusal of the same suggests the first floor of 28, Khan Market having been used for non-residential/commercial purpose. Page 303 dated 24.7.1968 from Land & Development Office, Nirman Bhawan, New Delhi suggests flat No.28, Khan Market having been used for commercial purpose. Thus, it would be seen that even in the year 1968, when nobody could have contemplated the present litigation, the first floor of Khan Market was used for commercial purpose. It is suggested from the evidence on record that the present respondent became the owner of property bearing No. 28, Khan Market by a partition decree, Ex. RW2/P/2 dated 13.3.1995. Considering the fact that 28, Khan Market is a property used for commercial purpose and the Khan Market being a commercial area, the said property cannot be said to be “reasonably suitable residential accommodation” within the meaning of Section 14(1)(e) of the Act.

Following the principle laid down in the decision in the case of Smt. Sushila Devi & Others Vs. Raghunandan Pershad & Others, 1996 (1) AD (Delhi) page 826, the petitioner/landlord cannot be said to be not justified in praying for the relief of possession of the demised premises from the respondent/tenant since premises bearing No.28, Khan Market cannot be regarded as reasonably suitable residential accommodation available with the petitioner/landlord.

11. Considering the evidence of PW 1, RW 1 and RW 2, the ingredients of Section 14(1)(e) of the Act. of the Act have been fully established. The decree of eviction under Section 14(1)(e) of the Act.

of the Act does not deserve to be interfered with. The petition being devoid of merits is liable to be dismissed.

12. The present petitioner (original respondent/tenant) is a widow. The decree for possession has been passed under Section 14(1)(e) of the Act. of the Act. Considering the facts and circumstances, I am inclined to grant time to vacate under Section 14(7) of the Act.

of the Act till 30.6.1999 to the present petitioner (original respondent/tenant), in my opinion, time to vacate the demised premises, as above, would have the mitigating effect on the hardship of the present petitioner and serve the ends of justice.

13. In the result, the petition fails with time to vacate granted till 30.6.1999.