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V.B. Raju Vs. R.L. Mahindroo - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 333 of 1982
Judge
Reported in1982RLR650
ActsDelhi Rent Control Act 1958 - Sections 14(1); Code of Civil Procedure (CPC), 1908 - Order 7, Rule 11
AppellantV.B. Raju
RespondentR.L. Mahindroo
Advocates: L.R. Gupta and; P.K. Agarwal, Advs
Cases ReferredS. Sanyal v. Gyan Chand
Excerpt:
.....is residing as well as carrying on his professional business of an advocate in the disputed premises with the full knowledge and consent of the petitioner'.(21) for one thing this averment was made by the tenant in relation to statutory prescribed form wherein the requirement is mentioned as 'in the case of residential premises, the number of persons occupying the same and in the case of non-residential premises, the purpose for which they are used and the number of the employees if any, working therein'.in relation to this column in the eviction application the landlord had stated that 'three persons are residing in the premises......could use the premises for any other purpose. even after the filing of the eviction petition the landlord stated in para 6 of his reply to my application for leave that the tenant mr, raju goes to the supreme court and high court daily. my averment in w.s. of consent of landlord is not traversed. evidence of tenant and his witness prove that even at the time of r-3 landlord told tenant that he can continue to use premises for his profession as office advocate. consent can be direct and can also be implied. landlord knows that i am an advocate and am using the premises as office of advocate and he never objected to the same. as laid down in : [1969]3scr603 that consent can be implied. 5. it is thereforee prayed that the order of eviction passed by the trial court be set aside and stay.....
Judgment:

Yogesnwar Dayal, J.

(1) This revision petition is directed against order of the learned Additional Rent Controller, dt. 6.1.82 whereby after permitting the tenant leave to appear and contest the eviction petition and after going through the trial thereof has accepted the ejectment application filed by the respondent-landlord on the ground of bona fide personal requirement against the petitioner.

(2) The respondent filed an application for ejectment of the tenant-petitioner on or about 30-1-1976 under Sub section 14(1)(e) of the Delhi Rent Control Act, 1958 (the Act) on the following averments : 18 (a) (i) That the premises were let out to the respondent for use as residence and the same is now required bonafide by the petitioner who is the owner thereof for use as residence for self and other members of his family dependent upon him. (ii) The petitioner was residing Along with his son Shri S.L. Mohindroo in premises No. 10. Under Hill Road, a requisitioned property by the Delhi Administration and orders for vacating the same have been passed by the Adj, Shri D.C. Agarwal whereby the time up to 31.3.76 has been granted to the petitioner and other members of his family to vacate the premises.'

(3) The tenant-petitioner took various pleas including the plea that the landlord has not pleaded that he has no other reasonably suitable accommodation available with him and also that the landlord ws not the owner. It was also pleaded in the leave application that the purpose of letting was not residential only. I, however, need not give the details of these pleas as in view of these pleas the tenant-petitioner was allowed leave to appear and contest the eviction petition and thereafter the landlord applied for amendment of the petition by an application dated 20-12-1976 to add in paragraph 18(a)(i) of the petition that 'he has no other reasonably suitable accommodation for himself and for the members of his family dependent upon him'. This application for amendment was filed soon after the leave was granted to the tenant to appear and contest the eviction petition.

(4) The learned Addl. R.C. held that the landlord was the owner of the premises, the premises were let for residential purposes only, the landlord-respondent has got no other reasonably suitable accommodation available to him and the premises in dispute were bonafide required by the landlord.

(5) The tenant has come up in revision under the proviso to Section 25B(8) of the Act.

(6) The petitioner, apart from oral submissions. has filed written argumentsfter I had issued a notice to show cause to the landlord as to why the petition for revision should not be admitted. The written arguments are reproduced hereunder :-

'1.As held by the Delhi High Court in : AIR1981Delhi305 that if eviction petition is defective it should be summarily rejected and it cannot be allowed to be amended. It is thereforee immaterial whether in the instant case petition had been amended or not. In the 4th additional ground in my petition of C.R.P. 333/82 I stated that it was wrongly allowed to be amended. 2. In column 14 of eviction petition it is stated that tenancy began in July, 1974 But the landlord relies on document Rule 3 which merely changed the terms of tenancy. It allows all uses except for office for trade or commerce. It does not say that all uses other than residence are prohibited. So, it is submitted that in view of : [1968]1SCR536 , the tenant cannot be evicted. 3. When the terms are reduced to the form of a document. Section 91 of the Evidence Act does not permit use of any other evidence to prove the terms of tenancy either documentary or oral. Landlord wants to rely on some counterfoils of the year 1977. No tenant studies counterfoils of rent receipt kept by landlord in his writing, for his use and kept in his custody. They are inadmissible because they are documents of landlord and cannot be used in his favor. They are also irrelevant because they pertain to 1977 which is long after the litigation began in 1976 and long after the beginning of tenancy which admittedly began in July, 1974. These objections were raised in the trial court in writing. It is thereforee submitted that the counterfoils cannot be looked at or taken into consideration. Without prejudice to this submission it is submitted that even otherwise the counterfoils do not show that the tenant could not use the premises in question for uses other than residential. The counterfoils in question cannot contradict the document of 23.9.74 signed by both parties. In the counterfoils in question the tenant has merely stated that he had received rent receipts and that rent was not in arrears. 4. According to : [1968]1SCR536 , even if in any case landlord discharges his burden of proving that all uses other than residence are prohibited, the tenant cannot be evicted if he proves that with the consent of the landlord he was or could use the premises for any other purpose. Even after the filing of the eviction petition the landlord stated in para 6 of his reply to my application for leave that the tenant Mr, Raju goes to the Supreme Court and High Court daily. My averment in W.S. of consent of landlord is not traversed. Evidence of tenant and his witness prove that even at the time of R-3 landlord told tenant that he can continue to use premises for his profession as office advocate. Consent can be direct and can also be implied. Landlord knows that I am an advocate and am using the premises as office of advocate and he never objected to the same. As laid down in : [1969]3SCR603 that consent can be implied. 5. It is thereforee prayed that the order of eviction passed by the trial court be set aside and stay of operation of the eviction order be granted till 6 months after the decision of this civil revifion application be rranted.'

(7) I would deal with the submission in the order that have been noticed in the written arguments.

(8) It is true that under Order 7 Rule 11 of the C.P.C. which is applicable to proceedings before the Controllers under the Act, if a plaint does not disclose cause of action it is liable to be rejected. But Rule 13 of Order 7 of the Cpc provides that the rejection of the plaint on the grounds contained in Rule 11 of Order 7 shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. At the same time Order 6 Rule 17 of the C.P.C. are also applicable to the Controllers.

(9) Since the objection was taken in the application for leave to defend the ejection application that one of the essential ingredients for obtaining the orders for eviction u/s 14(l)(e)of theActhas not been pleaded, the respondent-landlord applied for amendment of petition and the petition was rightly allowed to be amended. No prejudice has been caused to petitioner from the order following the amendment at such an early stage of trial. In the authority Dr. (Mrs.) N. D. Khanna v. M/s. Hindustan Industrial Corp. : AIR1981Delhi305 relied upon by the petitioner. Sultan Singh, J. did not hold that the Controllers have no powers to permit amendment of the pleadings. In that judgment Sultan Singh, J. held that in the facts of that case the amendment ought nut to have been allowed. But that is no precedent saying that the Controllers have no pewor to permit amendment of the pleadings if they are bona fide applied for. In fact the allegation by the landlord in paragraph 18(a)(ii) that he was residing with his son in the requisitioned property and orders for vacating the same have been passed whereby the time up to 31st March, 1976 has been granted to the other petitioner and other family members to vaca'te the premises in substance contained the plea that he has no other reasonably suitable accomodation as the accomodation in which the petitioner was living when the petition was filed was such that his son was supposed to vacate the same by 31st March, 1976. However, out of abundant caution he was allowed to amend the petition to say specifically 'that he has no other reasonably suitable accomodation for himself and for the members of his family dependent upon him'.

(10) The second, third aid fourth submissions really relate to the question as to the purpose of letting.

(11) Before I deal with these submission it may be stated at the outset that during the hearing of the petition, the fact that the landlord has got no other reasonably suitable accomodation and that the bona fide requires premises in dispute were not even challenged.

(12) It is one of the essential requisites of the aforesaid clause to the proviso that when the landlord applies for ejectment on the ground of bona fide personal requirement that the premises in dispute should have been let for residential purposes only. They should not have been let out for non-residential purposes or residential-cum-commercial purpose. The premises should have been let out only for residential purposes. The terms and conditions of Jetting were initially settled by letters exchanged between the parties fixts. R-l and R-2. Ext. R-l is a letter dated 5.7.74 sent by the tenant to the landlord wherein in paragraph (4) it was stated that 'I shall not use the house for any other purpose than for residence cum an Advocate's office, for which I have taken'. In the letter Ext. R-2 dated 10.7.74 which was sent by the landlord to the tenant wherein it was stated that the landlord agreed to the terms and conditions of the aforesaid letter of 8 7.74. If the matter rested with these two letters only, then there would have been no difficulty for the tenant as the letting was clearly for both residence and use of the premises as an advocate's office but we find that there is an another admitted letter of dated 219.73 sent by the landlord to the tenant which is marked as Ext. R-3. By this letter the rent of the premises, which was initially Rs. 750.00 per month was reduced to Rg. 650.00 per month as standard rent and the previous terms on which the premises were let out stood expressly cancelled and fresh terms were settled. In this letter in paragraph (3) the cancellation of previous terms is specifically mentioned. Further in paragraph (3) of this letter it is stated 'the premises shall not be used as an office for trade or commercial purpose'.

(13) The learned Additional Rent Controller while reading Exts. R-1, R-2 and R-3 Along with counter-foils of rent receipts Exts. P-7, P-8. P-9 and P-10 which relate to payment of rent from 1.3.77 to 30.6.77 and wherein the property is decsribed as residential and which counter-foils also bore the signatures of the tenant, came to the conclusion that the premises could be used only for residential purposes and its use for non-regidentia' purposes was specifically barred as user for trade or commerce was barred expressly in view of Ext. R-3. This conclusion is also reached in view of the fact that initially by letters R-l and R-2 the premises were let out for the purpose of residence-cum-advocate's office but the letter Ext. R-3 expressly shows that the previous terms and conditions on which the premises were let stood cancelled and the fresh terms were settled.

(14) A premises can be let either (i) residential purposes, (ii) non-residential purposes and (iii) residential-cum non-residential purpose.

(15) A combined reading of letters Exts. R-l, R-2 and R-3 show that what was residential purposes only. The fact that user for advocate's office is a business purpose or commercial purpose admits of no doubt. Reference in this connection may be usefully made to the decisions reported as P.K. Kesavan Nair v. C. B. Babu Naidu : AIR1954Mad892 and S. Mohanlalv. Kondalah A.I.R. 1970 A.P. 984. Thus the user of the premises for an advocate's office is user for trade and business which was prohibited as per terms of the letter Ext. R-3. The fact that they did not continue to be so used is corroborated by the counterfoils Exts. P-7 to P-10 which mention the premises in dispute as residential property.

(16) The petitioner has, however, relied upon the decision of the Supreme Court in the matter reported as Dr. Devendra M. Surti v. State 1969 (1) S.C.R. 235 and has submitted that the professional user is different from the commercial establishment. This is a decision which is not relevant for the purpose of decision under the Rent Control Act. It was a decision which was interpreting Section 2(4) and rule 23(1) of the Bombay Shops and Establishments Act, 1948 and the rules and made there under,

(17) The Supreme Court in the case of Dr. Gopal Dass Verma v. S. K. Bhardwaj : [1962]2SCR678 took the view that user by a doctor of a premises for the purpose of profession amounted to user for commercial purposes for the purpose of Delhi and Ajmer Rent Control Act, 1952.

(18) It is, however, argued on behalf of the tenant that the letters Exts. R-l, R-2 and R-3do not show that all users other than residential are prohibited. To my mind the learned Additional Rent Controller was right in assunung that an other users are promoneb if the letters Exts. H-1, H.-2 ano R-3 are read together.

(19) It was then submitted that according to the decision of the Supreme Court in the case of S. Sanyal v. Gyan Chand : [1968]1SCR536 even if in case landlord discharges his burden of proving that all uses other than residence are prohibited, the tenant cannot be evicted if he proves that with the consent of of the landlord he could use the premises for any other purpose. It was also urged that even after the filing of the eviction petition the landlord stated in paragraph 6 of his reply to tenant's application for leave to defend that the tenant goes to the Supreme Court and High Court daily. It was further submitted that the averment of the tenant in the written statement of consent of landlord is not traversed. The consent could be direct or can be implied. The landlord knew that the tenant was an advocate and he was using the premises as an advocate's office and he never objected to the same.

(20) It will be noticed that in paragraph 5 of the written statement the tenant pleaded 'the respondent is residing as well as carrying on his professional business of an advocate in the disputed premises with the full knowledge and consent of the petitioner'.

(21) For one thing this averment was made by the tenant in relation to statutory prescribed form wherein the requirement is mentioned as 'in the case of residential premises, the number of persons occupying the same and in the case of non-residential premises, the purpose for which they are used and the number of the employees if any, working therein'. In relation to this column in the eviction application the landlord had stated that 'three persons are residing in the premises. (Respondent, his servant and his wife)'. In reply to this averment the aforesaid avermennt was made by the tenant in paragraph 5 of the written statement. However, in paragraph 18 (1) which deals with the ground on which the eviction of the tenant was sought, the plea of the tenant was that 'the premises were let for residential-cum- office of an advocate by the petitioner to the respondent and the petition for ejectment on the ground of bona fide necessty is not maintainable'. Again in the replication in reply to paragraph 5 of the written statement it was stated that the allegation of the tenant is not admitted and is denied and it was further stated that 'it is denied that the premises are being used for any other purpose other than residence'. During his statement in Court the tenant made no statement that the premises has been used as an office of the advocate with knowledge and consent to the landlord and the landlord never objected to it. This is a very material lapse on the part of the tenant. The tenant-petitioner, however, argued that he had stated that before signing Ext. R-3 he had told the landlord that he shall continue using the premises for his office as senior advocate. This is very much different from saying that the premises were used as office by the petitioner with knowledge and consent of the landlord. It will be noticed that Ext. R-3 specifically prohibits user of the premises for trade or commerce. Once the terms were settled by Ext. R-3 on 23.9.74 the tenant was prohibited from using it as an advocate's office also. In the absence of any evidence that after Ext. R-3 the tenant-petitioner used the premises as an advocate's office with knowledge and consent of the landlord no question arises of giving any weight to the averment made by the tenant in paragraph 5 of the written statement.

(22) On the facts of the case the learned Controller rightly held that no consent can be implied. Merely by going from a house to the Court does not mean that the house is being used as an office of the advocate with the consent and knowledge of the landlord.


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