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Kharshid Haider Vs. Zubeda Begum - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 335 of 1972
Reported in1979RLR161
ActsDelhi Rent Control Act - Sections 14; Code of Civil Procedure (CPC), 1908 - Sections 17
AppellantKharshid Haider
RespondentZubeda Begum
Advocates: R.L. Tandon,; Harish Arora and; V.K. Srivastava, Advs
Cases ReferredSri Ram Pasricha v. Jagan Nath.
.....bona fide for her residence. (20) eightly, it was contended that the ejectment petition was bad for non-joinder of necessary..........bonafide requirement. the ground of sub etting was decided against her. against order of eviction tenant appealed. the rent control tribunal by order of 11.10.72 dismissed the appeal. the tenant has now brought this second appeal under s. 39 of the delhi rent control act 1958 (the act). (3) mr. r. l. tandon on behalf of the tenant has taken a large number of grounds with regard to all of them it will be proper to observe at the very out set that they are largely grounds of fact in regard to which judgment of the authorities below has become final. an appeal to this court u/s 39 of the act lies only on 'a substantial question of law'. in one of the grounds urged before me mr. tandon has not been able to show that any substantiai question of law is involved. (4) first and foremost,.....

Avadh Behari, J.

(1) MST. Zubeda Begum is the widow of K. B.Mirza Hamid Ali Khan. On 13-2-1968, she brought a petition for the ejectment of her tenant Khurshid Haider. She also joined the sub-tenants, Mushayab Hussain and Mehtab Hussain. She claimed ejectment on two grounds. One was that the tenant had sublet, assigned or othetwise parted with the possession of the ground floor without her coirsent or her predecessor's consent in writing. The second ground was that she required the premises bone fide for residence for herself and the members of her family dependent on her. She alieged that she was living in a rented premises which were insufficient for her requirements.

(2) The rent Controller Mrs. S. Duggal by order dated 25.3.71 passed an order of eviction on the ground of bonafide requirement. The ground of sub etting was decided against her. Against order of eviction tenant appealed. The Rent Control Tribunal by order of 11.10.72 dismissed the appeal. The tenant has now brought this second appeal under S. 39 of the Delhi Rent Control Act 1958 (the Act).

(3) Mr. R. L. Tandon on behalf of the tenant has taken a large number of grounds With regard to all of them it will be proper to observe at the very out set that they are largely grounds of fact in regard to which judgment of the authorities below has become final. An appeal to this court u/s 39 of the Act lies only on 'a substantial question of law'. In one of the grounds urged before me Mr. Tandon has not been able to show that any substantiai question of law is involved.

(4) First and foremost, counsel for the tenant argued that landlady did not appear in the witness box herself and thereforee it cannot be said that she has proved her case of bonafide requirement. Basing himself on Virendra Pai v. Daljit Singh 1978 (1) R.C.J. 365 counsel said that the best person to prove bone fide requirement was the landlady herself and if she did not appear in court an adverse inference should be drawn against her that she was not willing to pledge her word in support of the case that she required the premises bona fide for her residence.

(5) It is true that the landlady did not appear personally to testify on her own behalf but her attorney Shri Narain Dass Pancholi, A. W. 1 appeared and deposed that the landlady required the premises bone fide for herself and for the members of the family dependent on her. Now the landlady has six children and on 13.1.69 when the attorney made the statement their ages were 20, 16, 14, 12, 10. and 9. The important point to note is that Narain Dass was not at all cross-examined as regards the bone fide requirement of the landlady. The members of her family were not disputed by the tenant nor did he contest that the landlady was residing in a rented house All that was contended was, she had 4 room and not two as was alleged by her. The tenantproduced two witnesses who said that the landlady had four rooms in her occupation. Their evidence did not impress the authorities below. Both the controller and the tribunal found that the accommodation with the landlady was insufficient and that she required the premises bona fide for herself and her children. Relying on the statement of the attorney and disbelieving the evidence of the tenant's witnesses the tribunal held that the landlady was in occupation of only two rooms and a store and this accommodation was wholly insufficient for a family of six children and their mother. .

(6) I want to say a word about the ruling in Virendra Pal. It was an undefended case. Moreover it does not lay dow any rule of law. if facts of one case are widely different from facts of another case and to attempt to extract from it any legal principle of general application is to ignore the evertimely warning of Lord Wright in Tidv V. Battman. (1934) 1 K.B. 319

'IT is unfortunate that questions which are questions of fact alone should be confused by importing into them as principles of law a course of reasoning which has no doubt properly been applied in deciding other cases on other sets of facts.'

(7) The finding of the authorities below that the landlady required premises bona fide for herself and the members of the family dependent on her is a finding of fact. The Supreme Court has so ruled in Mattu Lal v. Radhe Lal 1975 R.C.J. 86 1974 R L R 360. It is settled law that the High Court in second appeal cannot reappraise the evidence and interfere with a finding of fact reached by the authorities below. The rent control tridunal is final so far as findings of fact are concerned. The only limited ground on which the High Court can interfere in second appeal is that some 'substantial question of law' arises in the appeal which has wrongly been decided by the authorities below. If the finding is purely one of fact the jurisdiction of the High Court would be barred unless the question of law which arises is 'a substantial question of law.'

(8) Secondly, it was contended that there was no evidence of letting purpose. It was incumbent on the landlady to prove that the premises were given on rent by her or her husband for residence. On the question of letting purpose it is enouch to say that the tenant did not dispute that the premises were given to him for purposes of residence He did not deny in the written statement or in his evidence that such was the letting purpose. The premises were let to the tenant's fether Anwar-ul-Hassan. He was an allottee of the custodian. The landlady's husband purchased it at an auction sale in 1861 from the Custodian of Evicuee Property. In the survey report, the tenants's father was shown as the tenant.

(9) Thirdly, it was contended that the landlady had another house No. 2256 in Gali Sher Afgan which admittedly she had sold on 4 4.70. This, it was said, showed that the landlady's need was not bona fide.

(10) The landlady produced her sale deed at the stage of appeal before the tribunal. From the sale deed it appears that only symbolic possession was given to the purchaser. The words used are 'Qubze Malikana De Diya Hai', From this the tribunal concluded that the house was in the occupation of tenants and it was not vacant. The landlady made an affidavit before the tribunal on 30th March, 1972 in which she said that the house was occupied by the tenants and it was not vacant when she sold it. On this material the tribunal came to the conclusion that the tenant's case that the property was sold after getting it vacated was false. The evidence of the tenant's witness, Baran Hussain, that the property was vacant when it was sold was not accepted by the tribunal. This again is a finding of fact. I cannot say that the conclusion of the tribunal is wrong, founded as it is on the recitals in the sale deed.

(11) Fourthly, counsel argued with great vehemence that Zubeda Begum, the landlady had not proved her ownership of the property and was, thereforee, not entitled to sue for bone fide requirement. The qustion of title and ownership arose in this way. To begin with the tenant did not dispute , ownership of Zubeda Begum. Before the competent authority when the landlady wanted to seek permission under S. 19 of the Slum Areas Act the tenant in his reply dated 23.2.66. admitted the ownership of the landlady. He said the 'ownership of the petitioner over the suit property is not denied' That being so, it was not necessary for the landlady to prove her ownership. She merely filed the copy of the reply dated 23rd February, 1966 to prove the tenant's admission.

(12) In the course of the trial it came to light that the landlady's husband had two wives. One Zubeda Begum, landlady, and the other Rashida Begum and that he also made a will in favor of Zubeda Begum. This came out in the statement of the landlady's attorney Narain Dass. The tenant seized the opportunity. He took a summersault. He started disputing the title of the landlady. He said that she was not the owner pf the property and that it was incumbent on her to produce the will stated to have been made by her husband in her favor. Neither the controller nor the tribunal accepted the tenant's contention. They held that even if it is conceded that the landlady is not the sole and exclusive owner of the property she at least is one of the co-owners and a co-owner can maintain an eviction suit. The Supreme Court in Sri Ram Pasricha v. Jagan Nath. 1976. R L.R. 607 and Kanta Gopal v. 6. P. Pathak. 1977 R L.R. 201 has held that a co-owner also can bring an eviction suit on the ground of personal requirement if he is the landlord of the tenant because as landlord he can terminate the tenancy and as co-owner he owner he owns. whole of the property.

(13) I think the authorities below were right in holding that if Zubeda Begum was not the sole owner of the property she at least as a co-owner was entitled to sue. First of all having admitted the ownership of the landlady it was not open to the tenant to raise the question of title belatedly. Simply because late Khan Bahadur Mirza Hamid Ali Khan had made a will it was not open to the tenant to question the landlady's title after the trial had begun. If in a fishing enquiry in cross-examination it transpries that the landlady's husband had made a will in his life time it does not mean that the landlady's title is displaced, it having been admitted once that she was the owner of the property. A party cannot be taken by surprise. And sumersaults are always a surprise. In her evidence the landlady produced the mutation letter dt. 21.10,64 from the Municipal Corporation by which the property had been mutuated in her name on the death of her husband. She also produced the house-tax receipts which were issued by the local authority in her name alone (Ex. A-4 to A-7).

(14) Fifthly, counsel submitted that the other Point not raised before the Controller and Tribunal can not be allowed to be raised for the first time in second appeal. namely, Mst. Rashida Begum was living in Pakistan and as cuch was an evacuse and, thereforee, notice to the Custodian under s. 50 of the Administration of Evacuee Property Act, 1950 was necessary. This ground is raised for the first time in this court. It was never raised before the controller or the tribunal.- An application was moved on 26.474 for permission to urge this additional ground in the appeal. A point not raised at any stage before, neither before the controller nor before the tribunal, cannot be allowed to be raised for the first time in second appeal. Counsel sumitted that it was a pure question of law. The question whether Rashida Begum is an evacuee is a mixed question of law and fact and not a pure question of law. I cannot, thereforee, allow this argument to be raised in second appeal.

(15) Sixthly, counsel argued that apart from the tenant Khurshid Haider, the alleged sub-tenants Mushab Hussain and Mehtab Hussain were also tenants and were, thereforee, entitled to a notice to quit under s. 106 of the T.P.A. Counsel further argued that as a consequence it was necessary for the landlady to obtain permission of the competent authority against them a!so. There is no substance in this plea. In his written statement Khurshid Haider admitted that he alone was a tenant and no one else was a tenant with him. He himself produced a rent receipt (Ex R-1) which had been issued in his name alone.

(16) The landlady produced a witness from the Custodian's office. Shri S.B. Lal, Clerk of the Regional Settlement Commissioner's Office, appeared and deposed that according to the file maintained in his office the tenant's father Anwar-ul-Hussain was alone their tenant in the premises in dispute. Both the tribunal and the controller have uniformly held that Khurshid Haider alone was the tenant and the two subtenants were inducted by Anwar-ul-Hussin and they were already in occupation as subtenants at the time Khurshid Haider was accepted as a tenant by Khan Bahadur Mirza Hamid Aii Khan, the purchaser of the property.

(17) Seventhly, counsel contended that the tenant's evidence was improperly closed by the controller and that he was deprived of the right to defend the case as the controller refused to record his statement. On this question I have carefully looked into the record of the proceedings before the controller. A number of opportunities were given to the tenant to produce his evidence. On 27.8.70 the tenant made a statement that he did not wish to examine any other witness except himself. For that purpose he requested for an adjournment. The controller granted an adjournment and ordered the tenant to appear for his statement on 18.9.70. On 18 9.70, the case was adjourned for his statement to 17.11.70, when the tenant was absent, A medical certificate was produced on his behalf. The controller adjourned the case to 20.1,71 Again, a medical certificate was produced with a view to secure an adjournment. Thereupon the controller directed that the tenant shall be examined on commission. She appointed an advocate to record the statement of tenent on 23.1.71. The tenant was directed to pay Rs. 60.00 as his fee. No sooner was this order made the tenant appeared in court personally on 21.1.71 and made an application that he was not so as not to come to court for his statement and that statement may be recorded on 23.1.71. The controller dismissed that application. Before the commissioner the tenant did not appear to make the statement nor did he pay the fee. The result was that the tenant's statement was not recorded.

(18) Against the order of the controller closing the tenant's case the tenant filed a revision petition in the High Court. Sacher. Sacher J. on 19.2 71 dismissed the revision petition in liming taking the view that there was no ground to interfere in revision.

(19) Before the tribunal this ground was again urged that the controller had improperly refused to record the tenant's statement. The tribunal held that the con- troller was justified in closing the tenant's case as he was unnecessarily delaying the proceedings. I think the tribunal was right. No indulgence can be shown to a litigant who intentionally does not appear and files medical certificates to obtain adjournments and when commission is appointed to record his statement he comes out of the hiding-place and say to the controller 'I am present here. Record may statement'. In his application dated 21.1.71 the tenant said that his illness was not such that he could not attend the court for the purpose of making statement. On this the tribunal said 'This shows what type of person appellant No. 1 was'. This averment in the application was enough to show, in my opinion, that he was playing a game of hide and seek and the controller rightly did not permit him to make a mockery of justice.

(20) Eightly, it was contended that the ejectment petition was bad for non-joinder of necessary parlies. The tenant in the written statement did not take any objection as to non-joinder of parties. He did not state who were the necessary parties. Nor was this point argued before the authorities below. It was not even raised in the grounds of appeal before the tribunal. In second appeal I cannot allow the question to be raised at this late stage. Such a plea has to be taken at the earliest opportunity and in any case before the commencement of the trial so that the other side can amend the petltition or rectify the defect, if there is one. It appears to me that this is an objection without merit. 'An objection which has no realistic foundation cannot be entertained seriously for the sake of processual punctiliousness.' (Per Krishna lyer J. in Kanta Goel, (supra).

(21) Lastly it was urged that during the course of the litigation two daughters of the landlady have been given away in marriage and, thereforee, the landlady no longer requires the premises. This is a spurious argument. By any standard the rented accommodation of two rooms and a store cannot be said to be sufficient for a family of five, even if daughters are not counted. But daughters have not severed all connections with their mother. They will come and stay with her. Then all the children have now grown up. From a rented accommodation they want to move into their own house. I cannot say that it is mala fide. 22. It will be seen that all the arguments of the tenant's counsel are concluded by concurrent findings of fact of the controller and the tribunal. I do not find any substantial question of law in this appeal. Concluded as the tenant's case is by uniform findings of fact recorded by the authorities be!ow it is not open to this court in second appeal to disturb those findings, supported as they are by ample evidence on the record.

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