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T.C. Rakhi Vs. Usha Gujral, Lucknow - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 167 of 1967
Judge
Reported inILR1969Delhi9
ActsDelhi Rent Control Act, 1958 - Sections 14
AppellantT.C. Rakhi
RespondentUsha Gujral, Lucknow
Advocates: D.K. Kapur and; B.S.C. Singh, Advs
Cases ReferredPritam Singh v. Sura Pershad.
Excerpt:
.....2(c) of the act, which is wide enough to include a person receiving or entitled to receive the rent of any premises on account of or on behalf of or for the benefit of any toher person. construed in the context in which the word 'owner' is used in clause (e), it seems to include all persons in the position of the respondent who have taken a long lease of sites from the government for the purpose of building houses thereon. ; where, thereforee, a person owns a house on a piece of land taken on lease from the government, and later on let the house to a tenant, he is the 'owner' of the house within the contemplation of section 14(1)(e) of the delhi rent control act and the mere fact of his being a lessee from the government of the site would nto take him out of the category of owner.; ..........39 of the delhi rent control act of 1958 (hereafter called the act) challenges the order of the learned rent control tribunal dated 30/1/1967 accepting the appeal and setting aside the order of the additional rent controller dated 28/1/1966 and as a result granting an order of eviction against the present appellant.(2) the order of ejectment was claimed under clauses (b) and (e) of proviso to section 14(1) of the act. in so far as the question of subletting etc. covered by clause (b) is concerned, it was nto pressed before the learned tribunal and it accordingly does nto concern me in the present proceedings. the only question surviving decision is that of bona fide requirement by the landlord for occupation as a residence for himself or for any member of his family depending on him.....
Judgment:

I.D. Dua, J.

(1) This second appeal from order presented under section 39 of the Delhi Rent Control Act of 1958 (hereafter called the Act) challenges the order of the learned Rent Control Tribunal dated 30/1/1967 accepting the appeal and setting aside the order of the Additional Rent Controller dated 28/1/1966 and as a result granting an order of eviction against the present appellant.

(2) The order of ejectment was claimed under clauses (b) and (e) of proviso to section 14(1) of the Act. In so far as the question of subletting etc. covered by clause (b) is concerned, it was nto pressed before the learned Tribunal and it accordingly does nto concern me in the present proceedings. The only question surviving decision is that of bona fide requirement by the Landlord for occupation as a residence for himself or for any member of his family depending on him which is covered by section 14(1) proviso (e). The learned Additional Rent Controller did nto agree with Smt. Usha Gujral, who had sought eviction of the tenant Shri T. C. Rekhi (Appellant in this Court).

(3) On appeal before the Tribunal, the view of the Additional Rent Controller was successfully challenged and the learned Tribunal, on a fairly exhaustive discussion of the arguments addressed, came to the conclusion that Smt. Usha Gujral was the owner of the property in question, the premises were let for residential purposes and that she and her husband wanted to shift to Delhi and take up residence in their own house. The learned Tribunal observed in its order that the learned Additional Rent Controller had doubted, on wholly untenable grounds, the bona fides of Smt. Usha Gujral in filing an ejectment application on the ground of her personal bona fide requirements for residence.

(4) Before me, Shri Dalip K. Kapur, the learned counsel for the appellant has, with his usual eloquence, assailed the order of the learned Tribunal and he has divided his challenge into five parts. The first challenge questions the correctness of the conclusion that the premises had been let for residential purposes. According to the learned counsel, there is no evidence on this point. The second challenge centres round the plea that Smt. Usha Gujral is nto the owner of the house. It is emphasised that there is no document establishing her ownership. The third attack limelights the submission that the husband can by no means be considered to be dependent on his wife. The fourth attack, which may be considered to be a corollary of the third challenge, lays stress on the submission that the husband has settled down in Lucknow and that there is no question of his coming to Delhi for residing in the premises in question. Lastly, the pleas of Smt. Usha Gujral have been described to be mala fide, which really means that she does nto require the house for her bona fide residence as specifically suggested in the earlier four grounds of challenge.

(5) Dealing with the aforesaid points Serialtim, the learned Tribunal has discussed the arguments addressed before it at great length and after properly considering the same, has come to the conclusion that the tenant had admittedly been using the house mainly for his own residence and for that of his family during the last several years and that setting apart a small room or corner of the house for an office table, chairs and telephone was nto sufficient to convert the residential nature of the premises into a non-residential one. This conclusion appears to me to be one of fact and would nto be assailable on second appeal under section 39 of the Act which prohibits a second appeal except where it involves some substantial question of law. The decision of the Supreme Court reported as Miss S. Sanyal v. Gian Chand, would be applicable only if the premises had been let for residential and non-residential purposes. The Supreme Court decision in Dr. Gopal Dass Verma v. Dr. S. K. Bardwaj is also of little assistance to the appellant on the finding of the learned Tribunal below. I may at this stage point out that the learned Additional Rent Controller had drawn an inference against the landlady because of the nonproduction of the rent-ntoe executed between the parties in 1951. On appeal, the same was shown to the learned Tribunal and the Explanationn given was that as the document had nto been registered, though it was acted upon by the parties, it was nto produced. The landlady, however, offered to produce the same in evidence before the learned Tribunal for the collateral purpose of establishing the nature of the tenant's possession, but the tenant opposed its production. The learned Tribunal has after reciting what has just been stated proceeded to observe that in. view of the clear admission of the tenant that the lease deed was. silent in regard to the purpose of letting, the learned Additional Rent Controller was nto justified in raising any inference because of its non-production, as, such a writing, from the very nature of things, could nto throw any light on the points in controversy. The learned Tribunal has also dealt with the argument that in the eviction application, one room had been described as an office and, disagreeing with the learned Additional Rent Controller, observed that this averment should have been read along with the averments in the rest of the application where the premises were described to be purely residential. Merely because the owner, while building a residential house sets apart a room as a study or office, does nto necessarily convert the premises into residential-cum-commercial premises. In my opinion, the reasoning of the learned Tribunal does nto involveany substantial question of law justifying interference on second appeal. It must nto be forgtoten in this connection that Shri T. C. Rakhi runs several htoels and in his cross-examination, he was constrained to admit that his entire business correspondence takes place on the address of his respective htoels. The room described as his office in the premises in question is 14 X 12 feet, but he could nto produce any documentary evidence showing the existence of his office relating to his business in the said premises. He expressly admitted on oath that the letting purpose of these premises had nto been specifield in the lease- deed and that the property had been described as a bungalow known as 'Pusa House'. As settled on his authority, the circumstances as also inferences can constitute lawful material to form legal basis for decision so as to shut out interference on second appeal. Section 39 of the Act goes further in restricting second appeal only to substantial questions of law. In view of the foregoing discussion, I have no hesitation in repelling the first challenge.

(6) The second challenge again seems to me to be devoid of merit. On this question, it is worth ntoing that btoh the Additional Rent Controller and Rent Control Tribunal have concurrently upheld the ownership of the landlady. The appellant's learned counsel has strongly contended that Exhibit A. I does nto specify the property and the ownership of Smt. Usha Gujral accordingly remains unproved. The learned counsel has proceeded to add that Smt. Usha Gujral is only a lessee of the site from the Government and the superstructure has been built by the husband, with the result that neither the husband nor the wife can be considered to be the owner of the premises in question within the contemplation of section 14(1)(e) of the Act. In any event, so contends Shri Kapur, Smt. Usha Gujral can by no means be considered to be such owner. I am unable to sustain the contention. The learned Additional Rent Controller dealt with this question in the following words :

'IT is stated by Shri Mohan Lal Gujral, the husband of the petitioner as A.W. I that the house in question belongs to the petitioner and that it was built by her on a piece of land taken on lease from the Govt. The aforesaid fact is also recorded in the Jamabandi vide Ex. A. I The respondent has nto challenged this fact in his statement made as R.W. 7. All that he contends is that since the said plto is nto a free-hold property of the petitioner, she cannto be said to be the owner of this property. There is hardly any force in this contention. for we are concerned here with the building rather than the plto of land on which it stands. So in the absence of any rebuttal, it can reasonably be held that the petitioner has proved her ownership of the premises in question for the purpose of our present enquiry.'

(7) The learned Tribunal on appeal has also relied on Exhibit A. 1 Fard Jamabandi, which, according to the order appealed from leaves little or no doubt. The Tribunal has expressed its opinion thus:

'IT is natural that the husband and wife were nto making any distinction as to who was the owner of the property and as long as the premises are required for the residence of btoh of them, it may appear immaterial whether one or the toher is the real owner. It could be that this is a joint acquisition by the married couple in the name of one of them and at times, as in the plan Ex. A. W. 2/1, the appellant's husband has been described as the owner of the house.'

(8) The fact that the landlady has taken the lease on long lease from the Government was also held to be immaterial in view of the amendment made in 1964 in section 3 of the Act. Shri Kapur has strongly criticised the view of the learned Tribunal in holding that the amendment in section 3 effected in 1964 can help the landlady in the case in hand. This amendment adds the following proviso to section 3 :

'PROVIDED that where any premises belonging to Government have been or are lawfully let by any person by virtue of an agreement with the Government or toherwise, then, ntowithstanding any judgment, decree or order of any court or toher authority, the provisions of this Act shall apply to such tenancy.'

(9) This proviso appears to me to have been added to section 3 to counteract the effect of clause (a) of that section which excludes the applicability of the Act to the premises belonging to the Government. According to Shri Kapur, this proviso does nto make Smt. Usha Gujral the owner of the site in question. Whether or nto this proviso has the effect of making Smt. Usha Gujral a full-fledged owner as against the Government, I do nto think the mere fact of Smt. Usha Gujral being a lessee from the Government of the site would take her out of the category of 'owner' within the contemplation of Section 14(1)(e) of the Act. The word 'owner' as used in this clause, has to be construed in the background of the purpose and object of enacting it. The use of the word 'owner' in this clause seems to me to have been inspired by the definition of the word 'landlord' as contained in section 2(e) of the Act which is wide enough to include a person receiving or entitled to receive the rent of any premises on account of or on behalf of or for the benefit of any toher person. Construed in the context in which the word 'owner' is used in clause (e), it seems to me to include all persons in the position of Smt. Usha Gujral who have taken a long lease of sites from the Government for the purpose of building houses thereon. The concept of ownership seems now to be eclipsed by its social and political significance and the idea of ownership, in cases like the present, is one of the better right to be in possession and to obtain it. To accede to the contention raised by Shri Kapur would virtually nullify the effect of clause (e) and would render all such landlords remedyless against tenants however badly they may need the premises for their own personal residence. I do nto think such a result was intended by the Legislature and I repel the appellant's contention. I consider it proper before passing on to the next challenge to point out that the word 'owner' as used in clause (e) in section 14(1) does nto postulate absolute ownership in the sense that he has an absolutely unrestricted right to deal with the property as he likes. To describe someone as owner, and perhaps even as an absolute owner, of property is to say two things : it is to assert that his title to the property is indisputable and that he has all the rights of ownership allowed by the legal system in question. Rights of ownership may, thereforee, be .limited by special provisions of law and I include in those provisions such as are in force in New Delhi according to which citizens are granted long leases of sites for constructing building thereon. Now, the words of a statute, though normally construed in their ordinary meaning, may contain inherent restrictions due to their subject-matter and object and the occasion on which and the circumstances with reference to which they are used. They call for construction in the light of their context rather than in what may be either their strict etymological sense or their popular meaning apart from their context See Halsbury's Laws of England (Third Edition) Vol. 36, Paragraph 593 p. 394. The meaning of the word 'owner' in clause (e) is influenced and controlled by its context and the appellant's construction is unacceptable because it seems to be quite clearly contrary to the reasonable operation of the statutory provision.

(10) This brings me to the third attack, according to which Smt. Usha Gujral's husband cannto be considered to be dependent on her and, thereforee, the premises cannto be obtained by her on the ground that her husband wants to reside with her. Before the Rent Control Tribunal and before the Additional Rent Controller, the question of the dependence of the husband on the wife does nto appear to have been given the prominence which has been given to this argument in this Court. In my opinion, however, the question of the dependence of the husband on the wife is of little or no consequence because of the fact that the bona fide requirement of the owner landlady will include the residence with her husband and toher members of her family who are normally living with her. If she genuinely wants to come to Delhi and live in the premises in dispute with her husband and toher members of the family, then this requirement, if bona fide, would clearly fall within the purview of section 14(1) proviso(e) and the requirement btoh of the wife and the husband can legitimately be taken into account for the purpose of determining the extent of accommodation required. Before me, no arguments have been addressed that lesser accommodation would serve the purpose of Smt. Usha Gujral and her husband and of the toher members of the family. The argument which has been seriously pressed with considerable force is that her husband nto being dependent on her, the claim to the possession of the premises in question is outside the purview of clause(e). With this broad and ingenious proposition, I am wholly unable to agree. As just observed, if the premises are required bona fide by her for occupation as her residence, then this clause is primafacie attracted. The question of extent of accommodation has nto been canvassed in this Court and I am inclined, as at present advised, to take the view, in the absence of any submission to the contrary, that the requirement of the husband, on the peculiar facts and circumstances of this case, can legitimately be taken into account in considering the requirements of the landlady for the purposes of her residence. Indeed, on the reasoning of the learned Rent Control Tribunal, I also find it difficult to hold that any substantial question of law is involved in this challenge on second appeal. The learned counsel appearing for the parties have in this connection drawn my attention to some decisions on the construction of section 14(1) proviso(e) which I may in passing ntoice. In Jaswant Singh v. Smt. Prem Kumari, a learned single Judge of the Punjab High Court sitting on circuit in Delhi approved the decision in C.L. Davar v. Amar Nath Kapur, according to which 'the word 'dependent' in section 14(1)(e) of the Act cannto be construed as meaning ntohing but wholly dependent in the sense nto earning anything at all and being entirely dependent on the parent for board, lodging and food.' The term must be construed to mean somebody nto wholly independent or self-supporting and in a position to set up separate residence. In Roop Lal Mehra v. Smt. Kamla Soni, a Bench of the Punjab High Court sitting on Circuit in Delhi observed that in determining the question of personal requirement of a residential premises, the Court has to find out whether or nto the requirement of possession is bono fide and whether or nto the premises already in possession of the landlord afford a reasonably suitable alternative accommodation, and it would nto be correct to suggest that the question of accommodation actually in possession of a landlord, being 'reasonably suitable' is to be judged only in the context of physical sufficiency of the accommodalion. So long as the landlord is able to establish that he in good faith and genuinely wishes to occupy the premises in the possession of the tenant and that good faith or genuineness is of a reasonable man, it would nto be open to the Controller to weigh the claim of the landlord in a fine scale. In Vas Dev Dhawan v. Triloki Nath, Tatachari, J. after a fairly exhaustive discussion of the case law observed that the test as to whether the sons are dependent on their father within the meaning of section 14(1) proviso of the Act is whether they are wholly or partly dependent financially and whether they are unable to set up separate residence. A son. whether married or unmarried, who is in service, cannto be regarded as wholly independent who is nto, in view of the prevailing rate of rent, able to set up a separate residence. The landlord, according to this decision, must prove that the premises are bona fide required by him and that he has no toher reasonably suitable accommodation. In proving this, the landlord is nto the sole arbiter, but he has nto to sacrifice his own comforts and requirements and the question has to be considered from point of view of a reasonable man and nto from that of a whimsical person. In Bhagwan Das v. Smt. Shakuntala Devi, it was observed by G. D. Khosia C. J. of the Punjab High Court that the question whether the premises were bona fide required for the personal need for the landlord or the landlady, was a question of fact, pure and simple. In that case, the landlady had sought ejectment on the ground of personal need which was granted by the Senior Subordinate Judge on appeal. The tenant came on revision to the Punjab High Court and the learned Chief Justice, sitting on circuit, dismissed the revision, observing- in the course of the judgment as follows :

'BEFORE me a somewhat novel argument was advanced. namely, under clause (e) of the proviso to section 14(1) of the Act a decree for ejectment can be made only for occupation as residence by the landlord or for any member of his family dependent on him. The contention of the learned counsel for the petitioner is that the plaintiff's husband is nto dependent upon her and that he is the earning member of the family, and it also follows from this that none of the five children are dependent upon the plaintiff, because in reality they are dependent upon her husband. A correct reading of clause(e), however, means that where the landlord (or the landlady as in this case) requires the premises for his own use. then 'his own use' means the use of himself and the members of his family. The second part of the clause only, comes into operation when the landlord does nto intend to reside in the house himself but places it at the disposal of a member of his family. In that case it is essential that the member must be dependent upon him, toherwise the decree for ejectment will nto be made. But as in the present case the landlady will herself reside in the house along with her husband and the member of her family, it is nto necessary that those members, who reside with her, should be economically dependent upon her. The family is a unit consisting of a husband, a wife and their children, and in this case, thereforee, the occupation of the plaintiff will be treated as her sole occupation, because her family and she will be treated as one unit.' I respectfully agree with this reasoning which is btoh practical and based on common sense. The statute does nto say anything to the contrary.

(11) The fact that the husband of the landlady has accommodation in Lucknow, is also unhelpful to the appellant because if the family wants to live in Delhi, it can on no reasonable stretch be urged that the accommodation with the husband at Lucknow would be reasonable suitable residential accommodation excluding applicability of clause (e) proviso to section 14(1). This provision is nto intended to compel landlords nto to shift to the town in which they have a residential accommodation which is leased out to tenants merely because they may have some residential accommodation in some toher town in which they do nto want to live any longer. The tenant cannto, in my opinion, decline to vacate the premises bona fide required by the landlord for his residence merely because it is possible for him to live in some toher town where he may have a residential accommodation available. Such does nto seem to me to be the purpose and object of the Act and the statutory scheme does nto lend support to such intendment. The legislative history to which apassing reference has been made by Shri Kapur has also nto induced me to hold to the contrary.

(12) The last challenge based on mala fides has nto been seriously pressed independently of the challenge based on the pleas discussed above.

(13) There is one point which still remains to be considered, though it was nto fully developed at the bar because of the consistent view taken in this Court against Shri Kapur's submission. In November, 1967, an application was presented in this Court on behalf of the appellant praying for amendment of the written statement so as to plead absence of ntoice under section 106 of the Transfer of Property Act, which, according to the averments in the application, rendered the petition for eviction liable to dismissal. It was pleaded that the landlady had admitted in her application that no ntoice whatsoever had been given to the appellant. This plea was inspired by a decision of the Supreme Court in Monjuendra Dutt vs. Purnedu Prosad Roy Chowdhury. In reply to this application, it was pointed out that the lease in question started on 1-3-1951 when the Transfer of Property Act was nto in force in Delhi. This lease was accordingly nto governed by section 106 of the Transfer of Property Act. It was added that no objection on the score of section 106, Transfer of Property Act having been raised before the Rent Controller or before the Tribunal or even in the grounds of appeal in this Court, it must be deemed to have been waived. Lastly, it was pleaded that the amendment raised a mixed question of law and fact and mere award of costs would nto be adequate compensation. Amendment, at such late stage, it was emphasised, should nto be allowed. Reliance for opposition to the appellant's prayer was placed on a decision -of this Court in Pritam Singh v. Sura Pershad.

(14) In Pritam Singh's case, it was doubted whether the Supreme Court in the case of Manjuendra Dutt intended to lay down a rule of law of universal application which would equally apply to cases arising under the Act. Section 4 of the Calcutta Thika Tenancy (West Bengal Act No. 2 of 1949), which was the subject- matter of construction in Manjuendra Dutt case, expressly prohibited landlords from ejecting any Thika tenants from their holidings unless a ntoice was given to the Thika tenant in the manner provided in section 106 of the Transfer of Property Act. There is no such provision in the Act. But apart from this distinguishing feature, in Pritam Singh's case, this Court, in the exercise of its discretion declined to allow amendment in circurpstances very much similar to those in the case in hand. Ntohing has been urged at the bar before me either distinguishing the present case from Pritam Singh's case or in attempting to question the correctness of the discretion exercised in that case. Section 106 of the Transfer of Property Act, providing for duration of certain leases in absence of written contract or legal usage, enacts a deeming provision in regard to terms of certain leases. Such a provision is obviously capable of being met by factual pleas. It is, thereforee, somewhat difficult for me to permit, in my discretion, the amendment sought at this late stage. The ejectment application, which consisted of a printed form, generally sold in the market, to be filled in by the landlords, contained in paragrah 18(b) a question whether ntoice required had been given and if so. particulars thereof. Against this entry, it was stated that no ntoice was required to be given. In the written statement, against paragraph 18(b), all that was pleaded was that this paragraph needed no reply. Obviously, thereforee, the assertion that no ntoice was needed was nto controverter. On this state of the record, I have nto the least hesitation in holding that it would be highly prejudicial to the respondent to permit the appellant to amend the written statement at this late stage.

(15) For all the foregoing reasons, this appeal fails and is dismissed with costs.


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