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Lala Ram Vs. Kalawati - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 256 of 1972
Judge
Reported in10(1974)DLT349
ActsDelhi Rent Control Act, 1958 - Sections 14(1); Evidence Act, 1872 - Sections 114; Transfer of Property Act, 1882 - Sections 106
AppellantLala Ram
RespondentKalawati
Advocates: Bhagwan Singh and; M.L. Chhibbar, Advs
Cases ReferredJ.L. Mehta v. Hira Devi It
Excerpt:
.....of property act, 1882 - appeal filed challenging eviction order passed against appellant - eviction order passed on grounds of bona fide requirement - section 14 (1) includes all members of family of landlord who had always been living with landlord whether as dependent or otherwise - accordingly found that land bonafidely required by landlady for her own residential purpose - eviction order upheld. - - the second part of the proviso comes into operation when the landlord requires the premises himself as well as for the benefit of such family members who had not been living with him earlier but who are in some way dependent on him either financially or for purposes of residence or for any other sufficient reason......1938 (hereinafter referred to as 'the act'), (2) the facts of the case are that the respondent landlady filed the prevent petition for eviction of the appellant from the premises in dispute on the ground that the premises in dispute were let out to the tenant-appellant for residence and that now the premises are bona- fide required for herself and for her only daughter who is married and is residing with the respondent depending on her. it. was pleaded by the respondent that she has only one room, one kotha, one kitchen on the first floor of the building which is also occupied by the appellant and besides herself her daughter along with three children and her husband was also residing with the respondent and that the respondent does not have any reasonably suitable accommodation for.....
Judgment:

Yogeshwar Dayal, J.

(1) This is a tenant's appeal against the concurrent judgments of the Additional Rent Controller and the Tribunal ordering ejectment of the appellant under Proviso (e) to section 14(1) of the Delhi Rent Control Act, 1938 (hereinafter referred to as 'the Act'),

(2) The facts of the case are that the respondent landlady filed the prevent petition for eviction of the appellant from the premises in dispute on the ground that the premises in dispute were let out to the tenant-appellant for residence and that now the premises are bona- fide required for herself and for her only daughter who is married and is residing with the respondent depending on her. It. was pleaded by the respondent that she has only one room, one Kotha, one kitchen on the first floor of the building which is also occupied by the appellant and besides herself her daughter Along with three children and her husband was also residing with the respondent and that the respondent does not have any reasonably suitable accommodation for herself and her family members. The appellant disputed the purpose of letting being only residential and pleaded that the premises were let out both for residential and commercial purposes The appellant also denied that the premises are required by the respondent. It was also pleaded by the appellant that the daughter of the respondent is not dependent upon the respondent. It was, however, not denied that the daughter of the respondent Along with her family has been residing with the landlady. The service of notice was also denied. The Additional Rent Controller held that the premises were let for residential purposes and the incidental user by the appellant would not convert the purpose of letting. The Rent Controller also found that the land-lady's daughter and her son-in-law with their children had been residing with the land-lady since a long time ; that the daughter, was dependent on her mother, the land-lady, for residence and that the land-lady respondent had no other suitable accommodation. Dissatisfied by the order of the Additional Rent Controller, the appellant filed an appeal before the Tribunal who, as stated earlier, also dismissed the appeal vide order dated 17th August, 1972.

(3) The Tribunal agreed with the finding of the Additional Rent Controller. The Tribunal held that the land-lady is a widow and had no other issue to look after her and she had only one daughter who had been living with the land-lady and in these circumstances the daughter would be included in the word ' self ' used in proviso (e) to section 14(1) of the Act. The Tribunal held that the accommodation with the land-lady is wholly insufficient for her bonafide personal requirements. Before the Tribunal, service of a valid notice determining tenancy was also challenged but the Tribunal found that notice dated 31st July, 1968, had been served on the appellant in view of the report of refusal dated 3rd August 1968. (by mistake the Tribunal has noted the date as 3rd August 1972).

(4) Mr. Bhagwan Singh, learned counsel for the appellant has not contested the other findings of the courts below except (1) that the daughter and her family could not be considered as members dependent on the land-lady as she is married and her husband is earning independently; and (2) that no notice determining the tenancy was served on the appellant.

(5) In supporter the first submission that the daughter and her husband and children could not be considered as dependent on the landlady, the learned counsel relied upon C. L. Daver v. Amar Nath Kapur, in which Falshaw C. J. construed the meaning of the word ' dependent ' appearing in section 14(1)(e) and it was held that it cannot be construed as meaning nothing but wholly dependent in the sense of not earning anything at all and being entirely dependent on the parents (in that case the father) for board, lodging and food. The term must be construed as meaning somebody not wholly independent or self-supporting and in a position to set up separate residence. Dependence may not in all circutmstances be entirely a matter of finance and this would particularly be so in the case of an unmarried daughter who may be employed, but in whose case for various reasons it would not be desirable for her to attempt to live away from her parents and on her own. The same view was also taken by Grover J. in the case of Jaswant Singh v. Smt. Prem Kumari. The judgment far from helping the appellant- supports the case of the respondent.

(6) It will be noticed that the respondent land-lady has been. a widow having no son or any other relative except the married daughter who has always been living with the land-lady along with her husband the children. The land-lady, in fact, is also dependent in a sense on her daughter and the daughter on her mother for residency.

(7) It has already been held by this Court in numerous (Sages that the expression 'self' appearing in the proviso (e) to section 14(1) of the . Delhi Rent Control Act includes all members of the family of the landlord who had always been living with the landlord whether as dependent or otherwise. See Bhagwan Dass v. Smt. Shakuntla Devi, decided on 22nd October 1961, by G.D.Khosla C.J)T. C.Rekhi v.Uma Gujral decided by I. D. Dua C. J., and P. D. Sharma v. Ram Lubhaya, decided by Deshpande J. These cases were followed by Sachar J. in the case of J.L. Mehta v. Hira Devi It has been held in the aforesaid cases that the correct reading of proviso (e) to section 14(1) means that where the landlord (or the land-lady as in this case) requires premises for his/her own use then 'his own use' includes the use of himself and the members of his family. The second part of the proviso comes into operation when the landlord requires the premises himself as well as for the benefit of such family members who had not been living with him earlier but who are in some way dependent on him either financially or for purposes of residence or for any other sufficient reason. In that case it is essential that the member must be dependent on him, otherwise order for ejectment will not be made but as in the present case the land-lady herself resides in the house along with her daughter and her husband, it is not necessary that those members who reside with her should be in some way dependent upon her. In the present case the family consists of land-lady, and her married daughter along with her husband and children. In this case the requirement of the land-lady will be treated as 'his or her own use' because she and her daughter's family will be treated as 'self'.

(8) It will be noticed that the finding of fact has been recorded by the Tribunal based on the pleadings of the parties and it was not even assailed before me that the daughter with her husband and children has always been residing, at least for the last 25 years, with the respondent land-lady. In view of this finding it must be held that the requirement of the daughter, her husband and the children can beconsidered with the requirement of the respondent land-lady within the meaning of the word 'self' in the proviso mentioned above.

(9) Mr. Bhagwan Singh, learned counsel for the appellant brought to my notice a statement of the land-lady that she has some rental income but she spends that on herself and in view of this statement of the landdy, the learned counsel tried to make an argument that the daughter and the grand-children were not dependent on the land-lady. As.oberved in the two aforesaid judgments decided by Falshaw C. J. and followed by Grover J. that dependence does not mean merely financial dependence, the term must be construed to mean somebody not wholly independent and includes a person dependent for residence. In the present case I fully agree with the finding of the Tribunal that on the facts and circumstances of the case the daughter and her family arc dependent on the land-lady for residence.

(10) The next submission made by Mr. Bhagwan Singh, learned counsel for the appellant, is that service of the notice determining the tenancy has uoi been proved as the registered envelope. Exhibit A-3, (in which copy of notice dated July 31,1968, Exhibit A-2 was sent) merely contains an endorsement of the postman as 'refused'' dated 3rd August, 1968. It was submitted that it is not sufficient proof of service and as sender, the name of the counsel appears on the envelope. This submission of the learned counsel is contrary to the Division Bench decision of this Court in SAOs 131, 152, 11 and 106 of 1971 decided by Chief Justice Andley and Tatachari J. 1972 Rlr (7) 153 wherein it has been held that section 106 of the Transfer of Property Act consists of two parts. The first part relates to notice while the second deals with the manner of service of the notice. But the second part is concerned only with the notice itself and not with the cover or the envelope containing the notice. Section 106 of the Transfer of Property Act does not say that the notice should be registered with acknowledgement due or otherwise. This section does not speak of any envelope or cover nor does it say that the cover should indicate the nature of document inside the envelope. On acceptance of such a document the tenant would know the contents of documents.

(11) Clause (a) of this section does not contemplate lefusal of the notice. There is a presumption in favor of the 'endorsement 'refusal' to be correct. The burden was on the tenant who disputed the said endorsement. I do not agree with the submission of the learned counsel for the appellant that the respondent landlady should have - produced the postman to prove the endorsement. The respondent land-lady had produced A.W. 1 Ajit Singh who deposed that notice, copy of which is Exhibit A-2, was sent in the envelope Exhibit A-3 which contains the endorsement of refusal. This is sufficient proof of service of notice and the burden lay on the tenant to disprove it as the presumption was rebuttable. The tenant led no cogent evidence except saying that he had gone to Agra. It cannot be disputed that Agra is quite close to Delhi and aperson can go and come back from Agra to Delhi on the same day. Both the courts below have believed the endorsement as correct. No substantial question of law is involved to enable me to interfere with this finding of fact.

(12) The last submission made by the learned counsel was that the permission granted by the Competent Authority under the Slum Areas (Improvement and Clearance) Act, 1956 was without jurisdiction inasmuch as in the application for permission the ground of eviction, namely, bonafide personal requirement was not mentioned. I need not go into the correctness of such question as, in my view, such objection cannot beraised in thes proceedings. Orders granting permission have become final and such omission cannot render the permission as being without jurisdiction. The order of the Competent Authority could have been challenged only in writ proceedings or proceedings under Article 227 of the Constitution and not in the proceedings for ejectment. thereforee, it cannot be said that the order granting permission is without jurisdiction of the Competent Authority.

(13) The result is that the appeal fails and is dismissed with costs. Counsel's fee Rs. 200.00.


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