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Sita Ram Talwar Vs. Jai Dev Sharma - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 71 of 1979
Judge
Reported in16(1979)DLT225
ActsDelhi Rent Control Act, 1958 - Sections 14(1); Code of Civil Procedure (CPC), 1908 - 0rder 41, Rule 27; Transfer of Property Act, 1882 - Sections 105
AppellantSita Ram Talwar
RespondentJai Dev Sharma
Advocates: R.S. Oberoi,; Talwai and; G.L. Seth, Advs
Cases ReferredBimalendu Bhusan Das v. Firm Ultra and Ghosh
Excerpt:
.....the premises due to illness in the family or his own reasons which had kept him out of the house, it must be said that he was residing there. in the present case there was no such suggestion by the appellant that for some good and sound reasons though he had not occupied the premises, but he was residing there. 532 .the argument then raised was that the requirement of notice terminating the tenancy should expire with the end of month of tenancy mentioned in section 106 of the transfer of property act should be made applicable on the principle of justice, equity and good conscience. firm ultra and ghosh air1973cal515 .in my view that authority is clearly distinguishable, ln that case after the property was transferred by the landlord a portion of the said tenancy was taken possession of..........circumstance on which the courts below have relied to come to the conclusion of fact was that no ration card was produced to show that the appellant has drawn ration at the disputed premises which would have been the case if he was residing in the premises. the explanationn sought to be given by the counsel for the appellant is that it had not been alleged in the petition that ration has not been drawn and thereforee this evidence was not given before the rent controller. frankly l.do not. appreciate the argument. .the respondent had alleged that the appellant had not resided in the premises. any evidence which would show that the appellant had resided within 6 months was an , necessity for the appellant to give. if the appellant was drawing his ration on the ration card, it would have.....
Judgment:

(1) This is tenant's second.appeal against the order of the Rent controller as affirmed by the Rent Control Tribunal ordering the eviction of the appellant.

(2) An eviction application was brought on the ground of clause (d) of proviso to Section 14(1) namely that the tenant had not resided in the premises for a period of six months immediately before the day of filing of the eviction petition. The appellant is a, tenant in the premises since 1942. It appears that some time in 1969 an eviction petition had been brought .against the appellant, which I am told is still pending We are however not c.oncerned with that in these proceedings. This application was filed on 17.7.1973, on the allegation that for the last six months neither the appellant nor-his members of the family resized in the. premisesin dispute. Both the Rent Control and the Rent Control Tribunal have found in favor of the respondent landlord and have passed an order for eviction. The appellant being aggrieved has filed this appeal.

(3) It is a common case that the appellant along with his wife are the only members of the family who are residing in the premises in dispute. Though the appellant has three sons in Delhi they are living independently Agra. In separate premuses One of the sons.of the appellant is residing in Agra. Though various objections, were taken in the reply the main question argued before the Rent Controller was with regard to the ground (d) namely that the appellant-has; not resided in the premises six months prior to the day of the filing of the eviction application. Another objection taken was that no notice has been served before the filing of the eviction petition in 1973 and thereforee the proceedings were not maintainable. The courts below in arriving at a conclusion that the premises have not been occupied by the appellant have relied on the fact that the meter 'reading of the electricity consumed from November, 1972 to July, 1973, remained constant at a figure of 150. Evidence was produced from Desu which is also supported by the documents Ex Aw 5/3 to 8 which show that the consumption of the electricity is constant at9150 from 14.11.1972 to 23.7.1973. A W 5 and A W 6 whoare employed in the Desu have brought these documents and stated that, the consumption figures are also the same as per the meter register and ledger. The case of the appellant was that sometime in March 1973, he received a bill for consumption of electricity for over 1000 units and he had also taken up the matter with the Desu for correcting the same. Suggestion obviously was that this would show that the appellant was in occupation of the premises in dispute. In support of that Public Witness Public Witness 5/2, afetter from Desu addressed to the respondent dated 15.5.1974 was referred by the counsel for the appellant. Mr. Seth has made much of the fact that the letter was written by the Sons and not by the appellant. I do not find that of any consequence. But a reference to that letter Ex. Aw 5/2 does not advance the case of the appellant. All that this shows is that a provisional bill of 1000 unit was issued and the same was latter on revised on the basis of the report received from the area meter inspector as the meter was said to be working alright. The provisional was thus corrected, and the meter remained constant. Counsel for the appellant has urged that this constant reading was a result of the manipulation at the instance of the respondent with DESU. Now it is a serious matter to hold any manipulation against a public official in the discharge of his duty. Unless there was unimpeachable evidence this bald allegation cannot be accepted. In the present case I find that the accusition of the manipulation by Desu was not even alleged in the pleading. Not only that when the witnesses from Desu appeared in support of the bill which showed the constant reading at 91 So no suggestion was put to them that there were also bills. The argument which seeks to discredit the testimony thus cannot be accepted. The consequence of the constant reading at 9150 is apparent from the fact that the consumption of 10 units monthly at the minimum is admitted by the appellant. As a matter of fact Aw 3/1 after July 1973 shows that there was a consumption of 14 units in that month. This was a very strong circumstance on which the courts below have come to the conclusion of fact that the appellant was not residing in the premises prior to 6 months of eviction application.

(4) Another circumstance on which the courts below have relied to come to the conclusion of fact was that no ration card was produced to show that the appellant has drawn ration at the disputed premises which would have been the case if he was residing in the premises. The Explanationn sought to be given by the counsel for the appellant is that it had not been alleged in the petition that ration has not been drawn and thereforee this evidence was not given before the Rent controller. Frankly l.do not. appreciate the argument. .The respondent had alleged that the appellant had not resided in the premises. Any evidence which would show that the appellant had resided within 6 months was an , necessity for the appellant to give. If the appellant was drawing his ration on the ration card, it would have been proper evidence and he should have produced it himself. As a matter of fact we find that when the appellant was examined on 15.11.1976 and he was asked whether he had ration card and when the appellant replied that he had but he had not brought with him in Court; the respondent thereupon requested the court to direct the appellant to produce the ration card but the Rent Controller refused 'this request on the ground that no notice .had been given to the appellant for this purpose. It is not very clear from the order whether the appellant had objected fo .produce the ration card on his own at that stage. Mr. Seth learned counsel turn the respondent who argued it before the Rent Controller has stated at the bar that the order was passed because the appellant had objected to being asked to produce the ration card at this late stage. I also find that the appellant was not keen or desirous to produce the ration card even though when he had been specifically asked about it in cross-examination. Then I, find .that the appellant was cross-examined on 15.9.1976 and the judgment of the Rent Controller was not announced till 29.10.1976 but no effort was made by the appellant to seek to produce the ration card even when he had known that this plea that be had resided in the premises in dispute within months was being challenged. Not only that when the appeal was filed on , no application seeking to produce the ration card was made. An application however was filed on 23.11.1977 for permission to produce and prove the ration card. The reason given was that the ration card could not be produced earlier because the ration cards are destroyed after 2/3 years and that it was only now after a search that the earlier ration card has been found. The Rent Controller however did not deem that as sufficient evidence for allowing the appellant to produce the ration card at the appellate stags. Grievance now is made by the counsel for the appellant to, the action of the Tribunal in not permitting the Ration Card to be produced. Counsel has also referred me to Jai Narain Pandey v., Lallan Tiwari and others : AIR1973All509 , State of U. P. v. Manbodhan Lal Srivastava : (1958)IILLJ273SC and K. Venkataramiah v. A. Seetharana Reddy and others : [1964]2SCR35 . The Supreme Court has held in K. Venkataramiah's case as under:

'THEREmay well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly, say that it requires additional evidence 'to enable it to pronounce judgment' it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence 'for any other substantial cause' under R. 27 (1) of the Code.'

(5) In the present case it cannot be said that the Rent Control Tribunal was not in a position to give judgment .and thereforee required the Additional evidence. The effort of the appellant to give additional evidence as only to fill the lacuna and prove that the ration has been drawn from November, 1972, onward. It cannot however be forgotten that this application was moved a year after the appeal has been filed and almost four years after the eviction petition has been filed. I cannot understand why if it was a genuine peace of evidence, cation card was not sought to be produped earlier. There's no Explanationn as to how it is that after a lapse of four years the ration card has now been suddenly discovered. The appellant himself had mentioned in his application that the earlier ration card was destroyed on the expiry of the two or three years and that the record is also not available, obviously such a document and from doubtful origin can hardly inspire confidence. It is only if a public document of unimpeachable integrity is available, that time factor is ignored in considering whether it should be allowed to be produced in evidence, but in the present case the appellant made no effort , produce, the same before the Rent Controller when specifically asked to do so. Thus it is not a case where it can be held that the discretion exercised by the tribunal in not allowing the documents to be produced was erroneous in law.

(6) The appellant's own case has also been that he has been going away from the house though for a shorter period to live with his sons. He had gone to Agra to live with his son. Be that as it may the courts below have on the basis of oral as well as documentary evidence produced on record come to a conclusion of fact that the appellant was not residing in the premises for a period of six months prior to the filing of eviction petition. That finding being one of fact is binding on me in second appeal.

(7) Counsel for the appellant sought to urge that even if it is proved that the appellant has not occupied the premises for a required requisite period of six months, the respondent should have given further evidence to show that the appellant had no intention to live in the premises and unless that is done it cannot be said that the occupant has not resided in the premises for the last six months. In my view this argument is based on misapprehension of position in law. The respondent landlord could only prove that the tenant has not occupied the premises for the last six months. Once he has been able to prove that the onus must be on the tenant to show that though he had not occupied the premises for the six months there were good and sound reason for not occupying the premises like illness or trip abroad on duty, but that in law his residence was in the premises, and if he had shown that the courts may corns to the conclusion that in such a case it cannot be held that the tenant had not resided for more than six months. This is because, if there are good reasons for not occupying the premises due to illness in the family or his own reasons which had kept him out of the house, it must be said that he was residing there. But this is a matter which being in the special knowledge of the tenant has necessarily to be shown by him. In the present case there was no such suggestion by the appellant that for some good and sound reasons though he had not occupied the premises, but he was residing there. His only case was that he was in fact residing there. Once it is found that it is not so, the respondent is entitled to obtain a decree of eviction against the tenant.

(8) Another objection sought to be raised was that the notice of 24.3.19.8 was invalid because it demanded possession from the appellant on or before 30.4.1968. This argument was based on the fact that while in the eviction petition the tenancy was said to have commenced on 22.6.1942 now it appears that in the notice dated 24.3.1968 it was mentioned that the tenancy starts from 1st of each calendar month and ends on 30th of each month and apparently notice which was given on 24.3.1968 is not valid. Mr. Oberoi says that as the eviction petition says that the tenancy starts from 22.6.1972 the notice must and with the end of month of tenancy with the result the notice which is asking for possession from 30.4.1968 does not obviously expire with the end of the month of tenancy. It is apparent that if the month of tenancy ends on 21st of each month the notice of 24.3.68 does not terminate the tenancy on a date of expiring with the end of the month of tenancy as required by Section 105 of the Transfer of Property Act it has to be held that the lease will be covered by the provisions of Section 106 of the Transfer of Property Act. It is a common case that the Transfer of Property Act was extended to Delhi with effect from 1.12.1962. The tenancy in the present case was started in 1942 and assuch the provision of Sect ion 106 of the Transfer of Property Act became applicable only from 1.12.1962 and the premises of which lease was taken prior to 1962 would not be strictly governed by the provision of Section 106 of the Transfer of Property Act (see Batto Mal v. Rameshwar Nath 1970 R. C. R. 532 . The argument then raised was that the requirement of notice terminating the tenancy should expire with the end of month of tenancy mentioned in Section 106 of the Transfer of Property Act should be made applicable on the principle of justice, equity and good conscience. This very precise argument was rejected in Sahib Dayal v. Joti Pershad 1968 D.L.T. 182 where it was specifically held that the rule embodied in Section 106 of the.Transfer of Property.Act that the notice of termination of tenancy should expire with. the, end of the month of tenancy is a rule of technical nature and it cannot be enforced to the premises where the provision of the Act have not been made applicable. As the lease in the present case started from 1942 the technical rule of Section 106 of the Transfer of Property Act is not applicable. In that case also the notice of termination of tenancy did not expire with the end of the month of tenancy though the notice given to vacate the premises was 48 days notice, the court noticed that even 15 days was reasonable notice and no objection would be taken to the notice on the ground that more time was given than the prescribed period, ln the present case the notice dated 24.3.1968 required the tenant to vacate the premises by 30.4.1968; the mere fact that notice of termination of tenancy did not expire with the end of month of tenancy (even assuming the start of the tenancy from 22nd of the month) would not make any difference because the requirement is to give reasonable notice.

(9) The other objection was that the premises were taken in 1942 from the father of the present respon-lent. Father of the respondent is said to have died in 1965 and hence new tenancy started Id 1965 and as by then the Transfer of Property Act had become applicable to Delhi, the technical rule of 106 of Transfer of Property became applicable and thereforee the notice of 24.3.1968 is invalid. Reliance was sought to be placed on Bimalendu Bhusan Das v. Firm Ultra and Ghosh : AIR1973Cal515 . In my view that authority is clearly distinguishable, ln that case after the property was transferred by the landlord a portion of the said tenancy was taken possession of by the landlord and new bath room was constructed and it was on these facts that it was held that a new tenancy had come into existence and hence the provision of transfer of Property Act must be applied. As a matter of fact in this very case observations were made which go against the contention of the appellant :

'INthe event of succession by inheritance of the interest of either landlord or tenant, the successor inheritsthe property with the rights and liabilities under the contract of tenancy and the privity of the contract continues though there may not be any act of parties.'

In the present proceedings nowhere even this plea that a new tenancy had come into existence on the death of the father of present respondent has been taken. Even then I have permitted arguments on this matter. It seems to me to be an extraordinary new tenancy comes into existence; with the successor. A tenancy could only come into existence by voluntary agreement between the parties excepting of course in the case of succession by inheritance when the old tenancy would continue on the existing terms and conditions. The argument of the appellant if accepted would result in greater damage to the tenancy because this would mean that whenever a tenant died his heirs would not automatically succeed to tenancy as at present but would have to persuade the landlord to agree for a new tenancy, a situation by no means favorable to the heir. Sa far as the heir is concerned, I am sure he would want the present law to continue so that the succession by way of inheritance or by sale of premises to a transferee would make no difference to the rights of the tenant because he would continue to hold his tenancy on the old terms and conditions The tenancy in the present case continued from 1942 onward and the death of father of landlord made no difference to the rights of the old tenants, and in that context the technical rule of 105 of Transfer of Property cannot be made applicable. This plea fails.

(10) In that view there is no merits in the appeal. The same is dis- missed but with no order as to costs. The appellant however is given six months time to vacate the premises.

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