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Delhi High CourtIndian Cases

Shri Nisar Ahmad vs Mohd. Gulzar on 13 July 2006

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Delhi High Court
Shri Nisar Ahmad vs Mohd. Gulzar on 13 July, 2006
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT

Sanjay Kishan Kaul, J.

Page 2722

1. The petitioner/tenant and the respondent/landlord happen to be brothers. The petitioner is residing in one room, one dalan, chhajja, kitchen, latrine and open court yard on the ground floor of property No. 393, Ward No. IX, Chitla Gate, Gali Garhiya, Chawri Bazaar, Delhi. The respondent filed an eviction petition under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the said Act) on ground of bonafide requirement of the suit property.

2. The property is stated to have been purchased from the previous owner Shrimati Roop Rani by a registered Sale Deed dated 20.10.1993 and is stated to have been let out for residential purposes and used as such. The respondent claims bonafide use for his residence on account of shortage of accommodation, as his family consist of the petitioner himself, his wife, two major sons and three daughters and that they have only one room, open terrace and latrine on the first floor of the property. The marriages of the children were stated to be held up due to paucity of accommodation and the respondent claimed that no other suitable residential accommodation was available to him.

Page 2723

3. The petitioner sought leave to contest the petition claiming that the respondent was not the owner and the suit premises were let out by the custodian to the predecessor-in-interest of the petitioner. There was some dispute about the rent and therefore the petitioner was depositing the rent in Court and subsequently on the respondent claiming right in the property the rent was tendered to him. The petitioner stated that premises were also being used for commercial purposes and he was manufacturing candles, ashtray, lamp, baby jugs, etc. The petitioner was also alleged to have license to run commercial activities in the suit property.

4. The petitioner alleged that the respondent had two upper floors of the suit property in dispute consisting of three rooms, dalan, bathroom, latrine, kitchen, on the first floor and similar accommodation on the second floor. Respondent was also alleged to be owner of property bearing No. 1209, Tokriwalan, Chooriwalan, Delhi with four living rooms. In addition the respondent was alleged to have four rooms available to him in another property bearing No. 401, Chitla Gate, Delhi. It is further alleged that the daughters of the respondent were going to be married soon and thus he would not require the property and one of the sons of the respondent was mentally challenged and would not be married. The attempt was alleged to sell the property in question as the respondent prior to the eviction petition has sold the property of Welcome, Shahdra, Delhi. The respondent rejoinder denied the ownership of any other property but in respect of property bearing No. 1209, Tokriwalan, Chooriwalan, Delhi, it was stated that in one room in the basement and one room on the ground floor, the respondent was running his business of preparing envelops. The property is stated to be owned by Mohd. Raeesa Begam.

5. The Trial Court considered the application and in terms of order dated 23.7.2001 dismissed the same and passed an eviction order. The petitioner was granted six months time to vacate the premises. The petitioner aggrieved by the same has filed the present petition under Article 227 of the Constitution of India.

6. The Trial Court found that the respondent has stated in his affidavit the lack of ownership of any other property and even had filed certain documents regarding property bearing No. 1209, Tokriwalan, Chooriwalan, Delhi. No other alternative accommodation was shown to be available to respondent. The factum of the eldest son of the respondent being mentally challenged was taken note of, which would give rise to consequences that he would require a segregated room. The second son of the respondent was found to be of marriageable age. The requirement of the family of the respondent was found to be as one room for himself and his wife, one room for his mentally challenged son, one room for his other son and at least two rooms for three daughters, who must have attained the age of marriage since then. The Trial Court was of the view that the tenant cannot dictate terms on which the landlord should proceed as long as the requirement of the landlord is not fanciful. The petitioner did not file any site plan and thus the site plan filed by the respondent was relied upon.

7. The Trial Court noted that the real bone of contention between the parties was the purpose of letting as there was no written Rent Agreement or Receipt. Page 2724 The Trial Court found that taking into consideration the limited accommodation available with the petitioner and the allegation that his family consist of 20 members, it could hardly be assumed that there was composite user of the premises. The license filed by the petitioner issued by the MCD for manufacture of Copper and Brass hardware was noticed and the fact that certain bills/challans pertaining to the year 1993 onwards were produced at the stage of arguments. The premises were found to be let out not to the petitioner but to his predecessor-in-interest Shri Mohd. Yaqoob. There was nothing shown on record for even prima facie assumption that commercial activity was being carried out by Mohd. Yaqoob in the suit property. Further, if the tenant is using the residential premises incidentally for his vocation that would not change the nature of building or letting purpose.

8. Learned counsel for the petitioner sought to contend that the petitioner was an old tenant and the brother of the respondent and some endeavor must be made to find an amicable solution. However, the submission in that behalf in Court by learned Counsels on instructions from the parties showed that no such settlement was possible as the petitioner wanted the respondent to make available an alternative accommodation in the vicinity which the respondent expressed his inability to do on account of his financial condition. The petitioner was not willing to vacate the property subject to grant of any time and thus the matter has to be considered on merits.

9. The principle submission advanced by learned Counsel for the petitioner on merits was that the petitioner was using the premises both for residential and commercial purposes. In this behalf, the Trial Court has rightly noticed that the premises were let out to the predecessor of the petitioner and there was nothing shown whereby any commercial use by the predecessor of the petitioner could be established. The Trial Court has rightly noticed that if the purpose of letting is residential and a tenant is incidentally carrying on some activity for vocation, that would not change the nature of the tenanted premises. It is in this context that the so called license issued by the MCD to the petitioner has to be seen as the petitioner is stated to be carrying on the work of Copper and Brass Art. The petitioner, in fact, on the date of hearing of the petition stated that he was not financially well off and was, in fact, working for some third party. The petitioner further claims that almost 20 members of his family reside in the premises and simultaneously claims that he is doing some commercial activity. The limited nature of accommodation available with the petitioner as set out above shows that the same is practically impossible and the commercial user has been only set up as a ruse to somehow obtain leave to defend in the matter and to prolong the proceedings. This cannot be permitted.

10. Learned counsel also made a grievance that the respondent had sufficient accommodation and had failed to disclose the possession of property bearing No. 1209, Tokriwalan, Chooriwalan, Delhi. Such concealment of accommodation was thus alleged to be a ground for grant of relief. There can be no doubt that if there is concealment, the same would at least give rise to the right in favor of the tenant for leave to contest the petition and produce the material. However, it is apparent from the pleadings in petition that the premises No. 1209, Tokriwalan, Chooriwalan, Delhi is not owned but a Page 2725 tenanted premises of the respondent and that too for running his commercial business. There was no occasion to mention a commercial tenancy as part of a petition seeking eviction for residential use on grounds of bonafide requirement of respondent. It cannot, thus, be said that the there is any concealment by the respondent.

11. In my considered view, no case is made out for grant of leave to defend in the eviction petition to the petitioner and there is no patent error or erroneous exercise of jurisdiction by the Additional Rent Controller for this Court to exercise its jurisdiction under Article 227 of the Constitution of India.

12. The petition is without merit and is dismissed leaving the parties to bear their own costs.

13. However, taking into consideration the facts and circumstances of the case, the petitioner is granted time till 31.12.2006 to vacate and hand over the vacant and peaceful possession of the suit property subject to the petitioner filing the usual undertaking within 15 days from today to do so, not to create any third party interest or to induct any person and to continue to pay the rent/damages at the agreed rate. The undertaking will be subject to the right of the petitioner to avail of any legal remedy against the order passed today.