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Rajinder Kumar JaIn Vs. H.C. Arora and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Writ Petn. No. 602 of 1972
Judge
Reported inAIR1974Delhi221
ActsSlum Areas (Improvement and Clearance) Act, 1956 - Sections 19(4); Evidence Act, 1872 - Sections 102 and 106
AppellantRajinder Kumar Jain
RespondentH.C. Arora and anr.
Appellant Advocate R.R. Kathuria, Adv
Respondent Advocate Jai Behari Lal, Adv.
Cases ReferredMohinder Das Jain v. P. R. Varsoneva
Excerpt:
.....landlord may simply say that he would like to have the permission for filing an eviction petition against the tenant un, less the competent authority is satisfied that the tenant is not in possession of means to find alternative accommodation. if, thereforee, neither the landlord nor the tenant adduces any evidence as to the income of the tenant, it is the tenant whose defense will fail and' the landlord would obtain a permission for filing an eviction petition against him in view of section 102 of the evidence act......number of the tenant. he also produced a calendar advertising these products manufactured by the tenant. the manufacture of drugs and cosmetics is liable to the levy of an excise duty (vide central excises and salt act, 1944 and the medicinal and toilet preparations (excise duties) act, 1955) and the essence of an excise duty is that it is levied on the manufacture. thereforee, nothing could be sold by the tenant unless duty on the manufacture thereof had been paid. since the tenant has admitted manufacture of some quantity of this product and some sale of it, he must have paid excise duty on the manufacture of the same. there was. thereforee, official record available to show the income of the petitioner. the petitioner has not produced the evidence of such record. an adverse.....
Judgment:
ORDER

1. In this writ petition, the order of the Competent Authority Passed under Section 19(4) of the Slum Areas (Improvement and Clearance) Act, 1956, granting permission to the respondent landlord to file a petition for the eviction of the petitioner-tenant has been challenged under the following circumstances. In the petition filed before the Competent Authority, the landlord sought the Permission 'to file a petition for eviction against the tenant and averred that the tenant possessed means to secure alter native accommodation if he were to be evicted.The tenant denied the allegations of the landlord and averred that his income was only Rs. 300/- to Rs. 350/ Per month and he could not find alter native accommodation if he were to be evicted. The facts established were as follows. The tenant had a license to manufacture drugs and cosmetics. The tenant said that he was manufacturing Jexona Lacto-Calamine but a Bombay firm filed a suit against him and in that litigation his manufacture almost came to a stop. The landlord produced a card board box container bearing the words 'Jexona Lacto-Calamine' and the license number of the tenant. He also produced a calendar advertising these products manufactured by the tenant. The manufacture of drugs and cosmetics is liable to the levy of an excise duty (vide Central Excises and Salt Act, 1944 and the Medicinal and Toilet Preparations (Excise Duties) Act, 1955) and the essence of an excise duty is that it is levied on the manufacture. thereforee, nothing could be sold by the tenant unless duty on the manufacture thereof had been paid. Since the tenant has admitted manufacture of some quantity of this product and some sale of it, he must have paid excise duty on the manufacture of the same. There was. thereforee, official record available to show the income of the petitioner. The petitioner has not produced the evidence of such record. An adverse inference against him, thereforee, arises.

2. Learned Counsel for the petitioner contended that it was the duty of the landlord to adduce prima facie evidence to show that the 'tenant had the means to find alternative accommodation and that it is only thereafter that the burden shifted to the tenant to show that he did not have the means to find alternative accommodation. He has invited my attention to two relevant decisions, namely (1) Mohinder Singh v. Competent Authority, 1973 Ren. C. R. 306 = (reported in Air 1974 Delhi 2191 decided 1) v me. and (2) Mohinder Das Jain v. P. R. Varsoneva, (C. M, (Main) No. 168 of 1971 (Delhi) decided on 7-1-1972 by Tatachari, J.) Having gone through these decisions, I find that there is no conflict between them. The legal position which emerges from them may be stated as follows.

3. The initial burden of proof on the landlord, when he makes a petition for permission to file a Proceeding against the tenant for eviction. is to aver and to prove that the relationship of landlord and tenant exists between the parties and that the tenant is in occupation of the premises of the landlord. The landlord may also aver that the tenant is in Possession of 'the means to find alternative accommodation. He may make such averment according to such knowledge and belief as he may have entertained in this respect. But there may be honest cases in which landlords would not really know anything about the , of the tenant. In my view. in such cases, the landlords may truthfully say that they do not know if the tenant is in Possession of the means to find alternative accommodation. In such a case, the landlord may simply say that he would like to have the permission for filing an eviction petition against the tenant un, less the Competent Authority is satisfied that the tenant is not in possession of means to find alternative accommodation. The question of burden of proof is dealt with in Chapter Vii of the Evidence Act beginning with Section 101 The relevant section in this respect is Section 106 which lays down that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The income of the tenant is a fact which is especially within his knowledge. The burden of proving the same is, thereforee, on him. If, thereforee, neither the landlord nor the tenant adduces any evidence as to the income of the tenant, it is the tenant whose defense will fail and' the landlord would obtain a permission for filing an eviction Petition against him in view of Section 102 of the Evidence Act.

4. This Was the approach of the Competent Authority in the present case. This approach was in accordance with the law laid down in the above decisions. I, thereforee, find no reason to interfere with the impugned order and dismiss the writ petition without any order as to costs.

5. Petition dismissed.


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