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Pushpa Talwar Vs. A.N. Kapoor - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 59 of 1979
Judge
Reported in21(1982)DLT235; 1982RLR223
ActsDelhi Rent Control Act, 1958 - Sections 14(1) and 39
AppellantPushpa Talwar
RespondentA.N. Kapoor
Advocates: R.K. Makhija,; Mukul Rohatagi,; Alakh Kumar,;
Cases ReferredJangbir v. Mahavir Prasad Gupta
Excerpt:
.....control tribunal liable to be set aside - order of eviction passed in favor of appellant-landlady. - - the additional controller while fixing the said sum as standard rent observed, this would be quite reasonable standard rent of the premises in question) keeping in view the peculiar circumstances of the present case, as well ;as the premises in question had been let out to the respondent for running some sort of hostel for keeping foreign students'.(3) on 8th may, 1973 the appellant sent a notice (ex. 1 for the first time stated that she had been using the flat in question for her residence as well as for keeping foreign students as her paying guests from the very inception of the tenancy. her solitary statement is not reliable in view of her specific allegation in her reply..........next point is : whether appellant bona fide requires the premises. she has been in occupation of rented premises at d-114, defense colony, new delhi comprising two bed rooms, drawing-dining room and barsati (plan ex. aw. 1/1). the appellant has filed an affidavit that since the filing of eviction case in 1973 there has been a change in the family members. the family of the appellant now consists of herself, her husband, her mother-in- law, her two married sons aged 30 years and 26 years both having one child each. the two bed room accommodation in the rented premises at defense colony cannot be said to be reasonably suitable accommodation for the appellant and her said family members. the respondent has not denied the present family members of the appellant but has filed an affidavit.....
Judgment:

Sultan Singh, J.

(1) The appellant-landlady, in this second appeal under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') challenges the judgment and order of the Rent Control Tribunal, dated 18th November, 1978 confirming the order, dated 29th September, 1976 of the Additional Controller, dismissing her application for eviction of the respondent tenant on the ground of personal bona fide requirement mentioned in Section 14(1)(e)oftheAct. The question for decision is : Whether the premises in question were let for residential purposes?

(2) To determine the purpose of letting, it is necessary to narrate certain facts. Shri Ram Narain Virmani, father of the appellant, had constructed flats at 24, Mall Road, Delhi in 1960. He let out two flats in the said building on 1st October, 1961 to the respondent. In her letter dated 7th October, 1961, the respondent wrote, 'We agree to use house for residential purposes of myself and foreign students'. On 18th August, 1962 she surrendered one flat and retained flat No. 2 only under the tenancy. In her letter dated 18th August, 1962 to appellant's father, she stated,' I shall be keeping foreign students as guests in my house'. On 3rd February, 1964 Shri Virmani filed an application for her eviction on the grounds mentioned in clauses (a) and (b) of the proviso to Section 14(1) of the Act. The respondent raised the plea of fixation of standard rent. Mr. Virmani however on 27th June, 1964 sold the premises in suit i.e. flat No. 2 at 24 Mall Road, Delhi to the appellant in consideration of Rs. 35,000.00 . The appellant was substituted in place of Mr. Virmani. On 10th March, 1967 the eviction application was dismissed as per order (Ex. R. 2) and by another order dated 27th May, 1968 (Ex. R. 3) the Controller after determining, the total cost of the construction and value of land at Rs. 41,200.00 fixed the standard rent at Rs. 283.75 per month. The Additional Controller while fixing the said sum as standard rent observed, 'This would be quite reasonable standard rent of the premises in question) keeping in view the peculiar circumstances of the present case, as well ; as the premises in question had been let out to the respondent for running some sort of hostel for keeping foreign students'.

(3) On 8th May, 1973 the appellant sent a notice (Ex. A. 3) alleging para 3(b),' that the premises let to you for residential purposes are being used by you for commercial purposes in so far as they were let to you for your residence and for the residence of foreign students but you are using the . premises for purposes other than that for which they were let, by letting out various portions to several students on commercial lines and are charging hostel fees and are thus making it more as a commercial concern'. The respondent in her reply dated 23rd May, 1973 (Ex. R. 1) stated, 'Clause(b) is not admitted. The premises are used for my residence and also for keeping foreign students. The premises are used for the purpose for which they were let. No portion of premises is let to any person by me'. On 12th July, 1973 the appellant filed the eviction petition under Section 14(1)(e) of the Act, out of which this second appeal has arisen. She alleged that the premises were let for residential purposes and the same were required bona fide by her who was the owner/perpetual lessee for occupation as residence for herself and for members of her family, that she had no other reasonably suitable residential accommodation, that she was living in a rented house paying rent at Rs. 850.00 per month for the accommodation lesser than the premises in dispute. The respondent in her Written statement dated 15th August, 1973 denied the ground of eviction. She pleaded that the premises were not let for residence only, that the premises were let for the purpose of her residence and for boarding and lodging of foreign students and that the premises had been used for residence and for keeping foreign students as paying guests The alleged requirement of the petitioner was also denied. The respondent further pleaded that the appellant was estopped from alleging that the premises were residential or were let for residential purposes. She also pleaded that the previous order fixing the standard rent operated as rest judiciala. In replication the appellant submitted that the premises were let only for residential purposes and not for commercial purposes and that the previous order fixing the standard rent had been misinterpreted by the respondent that the premises were never let out for running a hostel, that letting of the premises for residence.of the respondent and foreign students did not mean that the premises were let for commercial purposes. The Additional Controller and the Tribunal held that the lettting purpose was not residence but it was residential-cum-commercial and thereforee dismissed the eviction application.

(4) Learned counsel for the appellant submits that the finding of the Additional Controller and the Tribunal that the premises were not let for residential purposes but were let for residential-cum-commercial purposes is without any evidence on record and is perverse. Learned counsel lor the respondent on the other hand submits that there is concurrent finding of fact by the Controller and the Tribunal that the letting purpose was residential- cum-commercial and Hot residential only and that this court in second appeal would not interfere with the said finding. In the alternative, he submits that the respondent had been using the premises for commercial purposes since the inception of the tenancy and thereforee the purpose of letting should be deemed to be non-residential. He also relies upon the Explanationn in clause (e) of the proviso to Section 14(1) of the Act. Section 14(1)(e) of the Act reads as under :

'14(1)Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favor of the landlord against a tenant : Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:- x x x x x x (e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation: Explanationn: For the purposes of this clauses, 'premises let for residential purposes', include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes;'

(5) For obtaining an order of eviction under this clause a landlord has to prove that the premises were let for residential purposes. The premises may be used by the tenant himself or any other person on his behalf. It is not necessary that the premises can be used for residential purposes only by the tenant and not by any other person. As long as the premises are used for residential purposes by the tenant or any third person on his behalf the purpose of letting would remain residential and it would not change even if the tenant permits any other person to use as residence. This will however not cover a case where the landlord lets out the property to a tenant for the specific purpose of running a boarding and lodging house as in that case it would amount to letting of the premises for commercial purposes. It has been held by this court in Smt. Savitri Devi Amar v. A. M. Bose, 1972 R C J 815 that if the tenant takes the premises on lease for hotel or a lodging house then he takes it for a commercial purpose and not .for a residential purpose. The words 'let for residential purposes' in clause (e) mean that the premises can be used by the tenant for his residence or for the residence of any other person on his behalf. Thus in the present case it has to be seen whether the premises were let for residential purposes or not. The original letter dated 7th October, 1961 specifically mentions that the respondents had taken the premisrs in question for residential purposes for herself and foreign students. There was no mention that she would be running any boarding and lodging house. There was no mention that she would be keeping paying guests. Again the letter dated 18th August, 1962 (Ex. R. 5) the respondent while surrendering one flat had stated that she would be keeping foreign students as guests in her house. There was no allegation that she would be keeping them as paying guests. From these two letters dated 7th October, 1961 and 18th August, 1962 the irresistible conclusion is that the premises were let to the respondent for her residence and for the residence of foreign, students. She never took the premises for running lodging and boarding house. The premises were initially let by Ram Narain Virmani. He appeared as a witness of the appellant and stated that the premises were let to the respondent for residential purposes. Similar are the statements of the appellant and her husband. The respondent appearing as R.W. 1 for the first time stated that she had been using the flat in question for her residence as well as for keeping foreign students as her paying guests from the very inception of the tenancy. This was not a correct statement. I have reproduced above the appellant's allegation in her notice dated 8th May, 197 3 and the respondent's reply dated 23rd May, 1973. The respondent did not say that the premises were let to her for boarding and lodging house or that she was keeping paying guests. On the contrary she asserted that the premises were used for her residence and also for keeping foreign guests and no portion of it was let to any person by her. In other words, she meant that the premises were being used for residential purposes by her and by foreign students. Residence of the foreign students and the respondent in the suit premises does not mean that the letting purpose was changed. It is admitted that respondent has always been residing in the premises. According to her pleas she for the first time stated in her written statement that the premises were let for residential-cum-commercial purposes, that she had been using the premises for boarding and lodging of the foreign students. She had denied these allegations in her reply dated 23rd May, 1973. The respondent appeared as her own witness and did not examine any other witnesses. No documentary evidence has been brought on record to hold that the premises were ever used for boarding and lodging of foreign students. It is admitted by her that she never obtained any license from the Municipal Corporation of Delhi for the keeping of a lodging house. Under Section 417 read with item 15 of the Eleventh Schedule of the Delhi Municipal Corporation Act, 1957 it is clear that the premises cannot be used without a license for keeping of a lodging house. Further under Section 2 of The Sarais Act, 1867 'Sarai' means any building used for the shelter and accommodation of travellers. Section 4 of the said Act requires the District Magistrate to keep a register showing the names and residences of the keepers of all 'Sarais' within his jurisdiction. Section 5 of the said Act further prohibits the keepers of any 'Sarai' not to receive any lodger or allow any person in such sarai until the name and residence of the keepers has been registered as provided by the said Act. There is nothing on the record to show that the premises alleged to have been used by the respondent for boarding and lodging were ever got registered either under the Sarais Act, 1867 or a license was obtained by her under Section 417 of the Delhi Municipal Corporation Act. Thus there is no evidence on record to hold that the premises were used for boarding and lodging of the foreign students or that the premises were let to the respondent for commercial purposes. Thus I am of the view that the premises were let to the respondent for use as residence and the findings to contrary by the Controller and the Tribunal are without any evidence on record and are perverse.

(6) The Tribunal relying upon the case of Smt. Savitri Devi Amar (Supra) has held that the letting of residential premises to the tenant means that the residence is to be of tenant himself. This was not a correct approach. There the premises according to the original lease were let for lodging and boarding house, i.e. for residential-cum-commercial purposes. In the instant case before me, there is nothing on record to show that the premises were ever let to the respondent for lodging and boarding house. On the contrary the premises were let for the residence of the respondent and foreign students.

(7) Learned counsel for the respondent submits that keeping paying guests is a business. He relies upon Tendler v. Sproule, 1947(1) All Er 193. There in the facts and circumstances of that case it was held that there was violation of the covenant. In the case before me, as already observed, there is no evidence that the respondent was keeping paying guests. No record has been produced by her to show that the premises were ever used for boarding and lodging or as paying guest. Her solitary statement is not reliable in view of her specific allegation in her reply dated 23rd May, 1973 that the premises were used for her residence and for keeping her foreign students.

(8) Learned counsel next submits that foreign students have been residing in the premises and that would amount to consent on the part of the appellant, and for this purpose he relics upon the Explanationn to clause(e) of the proviso to Section 14(1) of the Act. Under the Explanationn tenant has to plead that the premises were used for commercial purposes with the consent of the landlady. There is no such plea in the written statement. The respondent cannot be allowed to argue at this stage that she has been keeping paying guests with the consent of the appellant. In fact, there is no evidence on record in support of this plea also besides her failure to raise such a plea in the written statement. Her solitary statement, as already observed, cannot be relied upon. If she was keeping paying guests she must be possessing accounts which have not been produced. Learned counsel for the respondent next relies upon Messrs. New Oarage Ltd. v. Sardar Kushwant Singh and another (1951) 53 P.L.R. 136 to say that by acceptance of rent the landlord waives the breach of the terms of the covenant and is not entitled to eject the tenant and such acceptence of rent is not only condensation of breaches in the past but is a license for breaches in future. This plea should be rejected on the ground that there is no plea of consent by acceptance of rent on the part of the appellant. Moreover, such pleas is not open to the tenant if the ground of eviction is covered by any of the grounds mentioned under the Rent Control Act. Section 112 of the Transfer of Property Act provides that a forfeiture is waived by acceptance of rent which has become due since forfeiture. The Supreme Court, however, in K. K. Krishnan v. M.K. Vijaya Raghavan, : [1981]1SCR139 after referring to Seven Judges judgment in V. Dhanapal Chettiar v. Yesodai Ammal, : [1980]1SCR334 held that if a State Rent Act makes provisions for eviction on certain specified grounds, eviction cannot be resisted on the basis of rights conferred by the Transfer of Property Act. Further there is no plea of waiver in the written statement and in the absence of specific plea there was no question of going into the plea of waiver (See Mangal Sen v. Shri Kanchhid Mal 1981 (2) R L R 475

(9) Now the next question is whether the court in second appeal can reverse the finding as regards letting purpose. In Messrs Hooghly Jute Mills v. Their Employees, Air 1957 S.G. 376 it has been held that the finding of fact reached by the Tribunal could only be set aside if either there was no evidence at all on which such a finding could be based or the finding reached by it was perverse or such as no reasonable body of men could have arrived at. Similar are the observations made by the Supreme Court in Mattulal v. Radhe Lal, : [1975]1SCR127 . As already observed, the two letters dated 7th October, 1961 and 18th August, 1962 written by her to the landlord conclusively prove that the premises were let for her residence and for the residence of foreign students. There is no evidence to the contrary. Thus the finding arrived at by the Controller and the Tribunal to the effect that the premises were let for residence-curn-coinmercial purposes is without any evidence on record. Learned counsel for the respondent refers to Jangbir v. Mahavir Prasad Gupta, Air 1977 S C. 27 in support of his plea that interpretation of a document is not a substantial question of law to beinterfered by the High Court in second appeal. In that case the lower courts arrived at a pure finding of fact as to whether a particular khasra number containing the house in dispute was included within a Mouza to the whole of which the provisions of the Delhi Municipal Corporation had been extended. It was held by the Supreme Court that such a finding was a pure finding of fact and the High Court committed illegality in interfering with the finding of fact. In the instant case, the question is : Whether there was any evidence on record in support of the finding that the premises were let for residence-cum- commercial purposes. I find there is no evidence.

(10) Lastly, the learned counsel submits that the standard rent was fixed by order dated 27th May, 1968 (Ex. R. 2) where the observations were made that the standard rent was fixed in view of the premises being let out for running some sort of hostel for keeping foreign students. There has never been any evidence on record that the premises were let for running some sort of hostel. On the contrary, the Controller in the earlier case determined the cost of construction at Rs. 41,200.00 and fixed the standard rent at Rs. 3399.00 per annum. In other words, it would mean that the Controller determined the standard rent calculating on the basis of 8% of the aggregate amount of the reasonable cost of construction and the market price of the land. If the standard rent was calculated at the said rate it would mean that the premises were residential and not non-residential for purposes of Section 6 of the Act. Had the Controller treated the premises as non residential or let for commercial purposes he would have calculated the standard rent on the basis of eight and five-eight per cent of the aggregate amount of the cost of construct on and the price of land. The Controller determined the standard rent under Section 6(1)(A)(2)(b) and not under Section 6(1)(B)(2)(b) of the Act. Thus the responpent having got determined standard rent on the basis of residential premises, cannot be allowed to say that the premises were let for commercial purposes. It appears that at the time of determination of standard rent she got the standard rent determined on the basis that the premises were let to her for residential purposes in terms of the said two letters dated 7th October, 1961 and 18th August, 1962.

(11) Next point is : Whether appellant bona fide requires the premises. She has been in occupation of rented premises at D-114, defense Colony, New Delhi comprising two bed rooms, drawing-dining room and Barsati (plan Ex. AW. 1/1). The appellant has filed an affidavit that since the filing of eviction case in 1973 there has been a change in the family members. The family of the appellant now consists of herself, her husband, her mother-in- law, her two married sons aged 30 years and 26 years both having one child each. The two bed room accommodation in the rented premises at defense Colony cannot be said to be reasonably suitable accommodation for the appellant and her said family members. The respondent has not denied the present family members of the appellant but has filed an affidavit that the appellant or her sons under agreements of sale have acquired plot of land bearing No. D-1098 in New Friends Colony, New Delhi from Smt. Sita Wanti Bhasin and another plot No. B-370, New Friends Colony, New Delhi from Smt. Kaushalya Devi Sabhiok. The appellant has filed a counter affidavit deposing that her husband or her two sons Rakesh Talwar and Rohit Talwar have not built their own houses and that they have no right in the two plots of land referred to by the respondent. She has denied that there was any agreement of sale relating to the said plots in favor of the appellant or her sons. In view of these facts, I hold that no other reasonably suitable residential accommodation is available to the appellant for herself and her family members. Assuming that there are agreements to sell with respect to the said two plots as alleged by the respondent it does not mean that any right or interest was created in the said plots in favor of the appellant or her sons. The appellant or her sons have no right, title or interest in the plots even on the allegations made by the respondent-tenant.

(12) I, thereforee, accept the appeal and set aside the judgment and order of the Rent Controller and the Rent Control Tribunal. An order of eviction is passed in favor of the appellant-landlady against the respondent- tenant from the premises in suit i.e. Flat No. 2 situate at 24, Mall Road, Delhi under Section 14(1)(e) of the Act. The respondent is however granted six months time to vacate the premises. No order as to costs. .


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