Rajindar Sachar, J.
(1) The petition was at first heard Ex parte Upon application of Respondent 3 that she was not served, ex parte order was set aside. These facts have been detailed in paras 1 to 3. Para 4 onwards, judgment is : -
(2) In the application filed by respondents it was alleged that the petitioner had three sons. In the application it was alleged that the petitioner had three sons one of whom is in England and is drawing about Rs. 7,000.00 p.m. and is sending Rs. 1,000.00 p.m. to the petitioner. The other son Romesh Kumar was said to be earning Rs. 600.00 p.m. and the third son Jit Kumar Rs. 300.00 p.m. The petitioner is said to have been working as Accountant in Delhi Cloth an General Mills and earning Rs. 450.00 p.m. Thus the landlady maintained that the petitioner had sufficient income and could find alternative accommodation, if evicted.
(3) The petitioner denied these allegations, and stated that he was not doing any job and was unemployed. He also denied that his son in England was sending any money to him. As for Romesh Kumar, the case of the petitioner was that he was earning Rs. 450.00 and has wife and child to look after and he did not give any money to him. His third son was said to be earning Rs 100.00. The Competent Authority found that the landlady had not been able to show that any money was being received by the petitioner from his son in England or from Romesh. It found that the landlady had failed to give any convincing proof about the means and status of the petitioner and as such refused to give permission to file eviction proceedings against the tenant. Aggrieved against that an appeal was filed by the landlady before the Financial Commissioner who allowed the appeal and has granted permission. The Financial Commissioner has not accepted the case of the landlady that Rs. 1,000.00 was being received by the tenant from his son in England. The Financial Commissioner has also accepted that the tenant was unemployed and that his income was nil. He, however, has held that Romesh Kumar was earning Rs. 600.00 and Jit Kumar was earning Rs. 300.00 and thus the family income is Rs. 900.00 which provides the petitioner with a status and the means to find alternative accommodation out side a slum area.
(4) Before the Financial Commissioner it was urged by the petitioner that Romesh Kumar had since been transferred out of Delhi and as such his income was no longer available to the petitioner. This submission it appears was made orally because after the Financial Commissioner had given his judgment on 2nd June, 1970, an application was filed under Order 47 Rule 1 on 10th June, 1970 by the petitioner in which it was pointed that Romesh Kumar who was employed in the Central Bank of India, at Delhi, had been transferred to Bombay and had left for that place on 19th May, 1970. But the Financial Commissioner did not take on record the said certificate and application of the tenant was rejected by the Financial Commissioner as he was of the view that no such application for review lay. The Financial Commissioner, however, took the view that as the petitioner constituted a Joint Hindu Family with his sons the income of Romesh Kumar would be available to him. He thus calculated the total income of Rs, 900.00 (Rs. 600.00 of Romesh Kumar and Rs. 300.00 of Jit Kumar) and came to the conclusion that this was sufficient to permit the petitioner to find an alternative accommodation and thus granted permission to the respondents.
(5) Mr. Duggal, appearing for the respondents 3 to 5 had sought to urge that the findings of the Financial Commissioner that the tenant was unemployed and that his income was nil were not correct as the petitioner had been paid some provident fund on his retirement. There is concurrent finding of the courts below that the tenant was unemployed and that his income was nil. I find no material to differ with that finding. The Financial Commissioner has also accepted the plea of the tenant that he was not receiving any amount from his son from England. Tfe said finding was not challenged before me and. thereforee, the same is also upheld. Some effort had been made in the courts below to show that the house which stood in the name of Romesh Kumar was really benami and the real owner was the petitioner. No proof however in support of that was led by the respondents and thereforee it could not be held that the petitioner owns any such property.
(6) Then there is the question of income which one of the sons, Jit Kumar was said to be earning. The landlords had alleged that Jit Kumar was drawing Rs. 300.00. Apart from the bald allegation no proof was furnished by the landlord. The petitioner filed his affidavit in which he denied that Jit Kumar was getting Rs. 300.00. It was stated by him that he was working as Radio Apprentice on a petty salary of Rs. 100.00 with Para Engineering Works. A certificate from Jit Kumar's employer was also enclosed. The Competent Authority had accepted this certificate. The Financial Commissioner, however, refused to accept such certificate because the certificate mentioned the income of the Jit Kumar as approximately Rs. 100.00 and observed that the sa'ary of a person must be of definite amount. He also took the view if the certificate had been supported by an affidavit of Shri Jit Kumar it would have had some value in evidence. I fail to see on what grounds the Financial Commissioner has refused to accept the certificate There is an affidavit of the petitioner stating that the salary of Jit Kumar was Rs. 100.00 and he was working as Radio Apprentice; along with that the, certificate of the employer is produced. I do not see how it would have made any difference if the affidavit had been given by Jit Kumar considering that the petitioner who is the father had filed the affidavit. In the absence of any contrary proof by the landlord, that Jit. Kumar was in any employment at a salary higher than one given in the certificate, the finding of the Financial Commissioner that Jit Kumar roust be taken to be earning Rs. 300.00 is without any evidence and is manifestly unsustainable. It has, thereforee, to be held that Jit Kumar was earring not moie than Rs. 100.00 p. m.
(7) That brings me to the question of income of Romesh Kumar and whether that income is available to the petitioner. The Financial Commissioner has held that he was in receipt of Rs. 600.00 - p.m. as salary. I do not see any infirmity in that finding. The question, however still remains whether the said salary of Romesh Kumar is available to the petitioner, because it is only then that it could be considered for determining the status of the petitioner. One of the reasons why the Financial Commissioner seemed to include the Income of Romesh Kumar in the income of the petitioner was that as petitioner and his sons constitute a Joint Hindu Family, the income of the sons would automatically be available to the petitioner and the income of the petitioner would be the total of the salaries earned by all the sons. In my opinion that is not a sound position in law at all. The mere fact that the petitioner and his sons constitute a Joint Hindu Family does not straightaway mean that the income of all the sons is automatically available to him. The existence of a Joint Hindu Family does not raise a presumption that there is a joint Hindu Family property. In each case it will have to be shown whether the income of any son is available to the tenant-father. Before it can be held that the income of Romesh Kumar is available to the petitioner it must be established on record as a matter of fact that the said income is available and not on any abstract presumption of law. One of the reasons why I found in favor of the petitioner was though at the time of passing the order by Competent Authority Romesh Kumar was posted in Delhi, he had been transferred to Bombay at the time when the Financial Commissioner was hearing the appeal in June, 1970 not only that, but I was told at the lime of hearing the writ petition, that Romesh Kumar was still at Bombay. As there was no proof that any money was being sent from Bombay to the petitioner, I took the view that income of (Romesh Kumar had to be excluded for the purpose of calculating the means of the petitioner. Mr. Duggal says that in fact Romesh Kumar was in Delhi when I heard the petition. Mr. Sabharwal, counsel for the petitioner, accepts this position and explains that this wrong information was given because the petitioner who is hard of bearing, had not followed the question and had in fact meant to say that though Romesh Kumar had been transferred back from Bombay to Delhi, he was not living with the petitioner. Mr, Sabharwal, however, maintains that the fact: that Romesh Kumar has been transferred back from Bombay to Delhi does not make any difference in the position as he is living in Delhi separately from the petitioner, in an separate house and further Romesh Kumar is not contributing any thing to the petitioner and thereforee his income is not available to the tenant. Mr. Duggal joins issue and contends that according to his instructions Romesh Kumar is still living with the petitioner in the same bouse and, thereforee, his income is available to the tenant. At the time when the application was filed before the Competent Authority the position undoubtedly was that Romesh Kumar was living with the petitioner and this had been so stated by the tenant. Subsequently though at the time of bearing the appeal by the Financial Commissioner, Romesh Kumar was at Bombay, he had been transferred back to Delhi after 6 to 8 months. The present position about Romesh Kumar is being: seriously disputed by the parties. The said matter can only be examined by the Competent Authority and it would not be proper, nor is it possible to give any finding on this point in these proceedings. I, thereforee, feel that it is in the interest of justice that the matter be remanded back to the Competent Authority with a direction to first record a finding on the point whether Romesh Kumar is living with the petitioner or independently whether and what if any, amount he is contributing to the petitioner, and then to pass the final order on merits. I may make it clear that so far as the other findings, namely, of the petitioner being without any income of his own and having no interest in property that stands in the name of Romesh Kumar and also Jit Kumar having an income of about Rs. 100.00 p.m. will not be reopened, The Competent Authority will only redetermine this matter of Romesh Kumar. It will for this purpose give an opportunity to the parties to lead evidence but on this point only. Thereafter the Competent Authority will pass a fresh order in accordance with flaw and on merits keeping in view the observations made in this judgment.
(8) Before parting with the case I must express my disapproval with the observations of the Financial Commissioner wherein he has stated that onus of establishing the status of the tenant is on him and it is the tenant who has to establish his case for protection in terms of the provisions of the Act and as such the onus squarely rests on him to satisfy the Competent Authority that he is a man deserving the protection enjoined by the Slum Act. In my view such a view is totally perverse and opposed to settled law on the question of placing of onus on parties. Section 19 clearly provides that no person shall except with the previous permission in writing of the Competent Authority institute proceedings for obtaining an order of eviction. Sub-Section (2) of Section 19 requires a person desiring to obtain the permission referred to in Sub-Section (1) to apply to the Competent Authority. Section 19(3) lays down that the Competent Authority shall after hearing the parties either grant or refuse permission. Sub-Section (4) of Section 19 further provides that in granting or refusing to grant permission the Competent Authority shall take into account as one of the factors, namely, whether the alternative accommodation within the means of the tenant would be available to him if evicted. It is the landlady who is seeking permission and thus involving the jurisdiction of the Competent Authority to pass an order in her favor. It was, thereforee, for the landlady to satisfy the competent Authority that the conditions provided in the Statute exist, and that the permission should be given by the Competent Authority. If the view of the Financial Commissioner was to be upheld it would amount to making the provisions to psy turvy and amount to holding that the landlord has only to file an application under Section 19 of the Act to get permission, unless the tenant showed otherwise. That is not what is Contemplated by Section 19 of the Act. As the landlord moves the court it is for him to establish his case and if he does not lead any evidence in support of his case he would fail for it is axiomatic that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist and the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Mr. Golani also appeared and referred to Mandir Dass Jain v. P. R. Varshneya : AIR1973Delhi71 . I do not find that case lays down any different proposition. In that case it was held that as it was the landlord who comes to the court with an application for permission under Section 19 against the tenant, he has to allege and adduce such evidence what according to his knowledge and information is the income of the tenant and adduce such evidence as is possible before the Competent Authority. The burden then shifts to the tenant and it is for him to adduce positive and satisfactory evidence regarding his income which is especially within his knowledge. It will be seen that all that case lays down is that if there are special facts which are within the knowledge of the tenant he must prove those. But it was no where held that the initial onus under the Act is on the tenant. The fallacy in the observation of the Financial Commissioner that onus is on the tenant' lies in a failure to distinguish between a legal burden of proof laid down by law and a provisional burden raised by state of evidence. Burden of proof has two distinct meanings viz. (i) the burden of proof as a matter of law and pleadings, and (ii) the burden of proof as a matter of adducing evidence. Section 101 deals with the former and Section 102 with the latter. The first remains constant and second shifts.
(9) In the cases under the Act, the burden of proof as a matter of law is on the landlord to show by evidence that the alternative accommodation within the means of the tenant would be available to him if he were evicted. It is only if the court accepts that evidence that the onus shifts to the tenant to prove the circumstances rebutting the case of the land lord. It would be perversity of law to put the initial burden of proof on the tenant in the application filed by the landlord under the Act. There is no warrant either in principle or in any precedent for such view expressed by the Financial Commissioner, which as mentioned above do not lay down the correct position in law. Mr. Duggal makes a grievance that the petitioner has not paid any rent for the last five or six years and urges that the tenant was not thus entitled to claim any relief under the equitable jurisdiction of this court who had not paid rent for all these years, Mr. Sabharwal, however, contests and says that the petitioner has deposited the rent from August, 1969 to September, 1974 in the court of the Rent Controller because, according to the petitioner the respondent was refusing to accept the rent. I have been shown the receipts for the rent having been deposited by the petitioner for the period from 1st August, 1969 to 30th September, 1974. Mr. Sabharwal has also stated that the rent which has been deposited can be withdrawn by the respondents, which Mr. Duggal says he will do. Of course the withdrawal of that will be without prejudice to the rights of the parties. Case remanded.