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Ganga Sahai Rajinder Kumar Vs. Mauji Ram - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 138 of 1978
Judge
Reported in1981(2)DRJ245
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantGanga Sahai Rajinder Kumar
RespondentMauji Ram
Advocates: L.R. Gupta,; P.K. Agarwal and; Daya Kishan, Advs
Excerpt:
.....bona fide requirement--eviction order passed by the additional rent controllea against the tenant--tenant appeals to the high court under section 25-b(8) of the delhi rent control act on the ground that property was let out for residence-cum-commercial purpose.; the property let out to a commercial firm cannot be considered to have been let out for residence unless some cogent evidence or written statement is produced to the contrary--it is not normal to let out residential property to a commercial firm and if it is let out, it would be inferred that the property had been let out for residential purpose as a kind of guest house or residential cum-eommercial for use of that firm. - - in support of the revision petition it is submitted that there are legal errors and a failure..........delhi, at a yearly rent of rs. 1,400. the tenancy is a yearly tenancy and the shop is taken on rent for commercial purposes. my client has paid rent up to 28-1-1974 to you in respect of the shop in the tenancy of my client. my client is a tenant under you in respect of four rooms situated in shop no.2078, narela mandi, narela, delhi, at a yearly rent of rs.300. the tenancy is a year to year tenancy and the premises have been taken on rent for residential purposes. the rent for this portion has been paid up to 14-11-1978. my client will pay the rent to you as and when the same shall become due. (25) in these circumstances, you are requested to inloiin my dieiit the purpose for which you sent the blank papers in the envelope to my client'. (26) it was urged by the learned counsel that.....
Judgment:

D.K. Kapur, J.

(1) The Additional Rent Controller granted the respondent an ejectment decree on the ground of bona fide personal requirement under section 14(l)(e) of the Delhi Rent Control Act, 1958, hereinafter referred to as 'the Act'. As the case was decided under the procedure prescribed by section 25-B of the Act, the tenant has petitioned this court under the proviso to Section 25-B(8) of the Act. In support of the revision petition it is submitted that there are legal errors and a failure to properly apply the provisions of Section 14(l)(e) of the Act to the facts of the case.

(2) To understand the case of the petitioner, it is necessary to state some of the basis facts. The tenant is a partnership firm M/s Ganga Sahai Rajinder Kumar. The petitioner before this Court is this firm through Sadha Ram Gupta, one of its partners. Some objection was taken that the revision is not properly filed because Sadhu Ram Gupta was not a partner of this firm when the tenancy was originally created. This point was raised first in reply to the stay application whereby the petitioner had prayed for stay of the eviction decree. It was there stated that the partner of M/s Ganga Sahai Rajinder Kumar at the time the property was let out in 1961 were Rangi Lal, Mata Deen and Chiranji Lal. Sadhu Ram Gupta who had filed the revision petition was not a partner at that time. It was claimed that Sadhu Ram Gupta had become a partner after the eviction order had been passed and, thereforee, the revision was not competent as Sadhu Ram Gupta was not a tenant. It was urged in reply that the firm was a tenant and whoever becomes a partner in the firm would also become a tenant. I had heard the contentions of the parties on this point but left the same undecided as it requires assertainment of additional facts. The eviction petition filed before the Rent Controller showed that the tenant is M/s Ganga Sahai Rajinder Kumar and it was stated that Rangi Lal and Banwari Lal were the persons residing in the premises along with their families. This was stated against paragraph 5 of the printed form used for eviction petitions under the Rent Control Act. In reply to the eviction petition, the written statement was filed under the signature of Rangi Lal, who merely denied paragraph 5. There is no mention of Sadhu Ram Gupta in that paragraph. In fact, the pleading is that the premises were residential-cum-commercial and were used for residence-cum-commercial purposes from the very inception by the tenant. A replication was filed on behalf of the landlord stating that the pleas in the written statement were denied and it was reaffirmed that Shri Rangi Lal and Shri Banwari Lal, partners of the firm, were residing in the premises. A considerable number of documents wese fild in the case and I have not been able to find the name of Sadhu Ram Gupta mentioned anywhere.

(3) It appears that what is stated by the counsel for the respondent is correct and probably Sadhu Ram Gupta was not a partner in the firm when the tenancy was created. However, as the case relates to a partnership firm, I am not in a position to determine whether Shri Sadhu Ram Gupta has also acquired any title in the tenancy or is merely entitled to use the same after having become a partner. I do not over rule the preliminary objection, but I propose to deal with the merits of the case and in case I hold that the eviction petition has been wrongly allowed only then it will be necessary for having an enquiry as to the competency of the revision petition.

(4) The basic question in this case is whether the order of the Additional Rent Controller is vitiated by errors of law as submitted before me. There were four points raised by the tenant in reply to the eviction petition. The points arising were :-

(A)Whether the petitioner was the owner of the premises or whether some other person, namely, Shri Mansa Ram had to be added as landlord; (b) Whether the notice of termination of the petitioner was not valid and it was an yearly lease and not a monthly lease ; (c) Whether the premises were let out for commercial purpose and hence the landlord was disentitled to seek eviction on the ground of bona fide requirement ; and (d) Whether the present accommodation with the landlord at No. 388, Panna Uddayan, Delhi, was insufficient for the landlord.

(5) Particularly, reliance was placed on the circumstance that previously another premises bearing No. 152 had fallen vacant whose rooms were in possession of the petitioner. In this connection, it had been urged that those premises had been got vacated on the ground of bona fide requirement, but later let out for commercial purpose.

(6) Now, I turn to the decision recorded by the Additional Rent Controller on these points. It was held that there was no yearly lease and such a lease could only be created by registration. It was held that as the rent was Rs, 25 monthly the tenancy was monthly.

(7) On the question of ownership, it was held that the petitioner's ownership had not been seriously challenged. It was observed that previously the property belonged to two brothers, namely, Mauji Ram and Mansa Ram but there had been a partition between them and thus, the partitioning landlord became the sole owner. The rent receipts were previously issued by both brothers but subsequently, the receipts were issued by the petitioner alone.

(8) Regarding the letting purpose, it was claimed that the premises had been let for residential-cum-commercial purpose. There is a .shop on the ground floor and a residential portion above. Both these portions were with the partnership firm. As there was a separate rent for the shop and a separate rent for the residential portion, it was held that the portion involved in the eviction petition was let for residential purpose and not for commercial purpose. Moreover, it also appears that previously the rent of the shop was Rs. 1,000 yearly and of the residential portion Rs. 300 annually but later the rent of the shop was increased on two occasions to eventually become Rs. 1700 annually but the rent of the residential portion remained static.

(9) The main question dealt with by the judgment was the question whether there was insufficiency of accommodation in the possession of the landlord. It was held on this account that the landlord had four rooms in his possession. The family of the landlord was nine. It was observed that one room was required as drawing-cum-dining room, one room for the married son and one room for the petitioner and his wife and another room for his two other sons. The landlord had four married daughters, who visited him but there was paucity of accommodation. No doubt, one of the factors which was taken into consideration by the learned Additional Rent Controller was the fact that the rooms were quite small i.e. measuring 10'x 8'.

(10) The main question that came for consideration was the fact that previously Shri Mauji Ram, the landlord, had filed an eviction case relating to premises No. 152, which was got vacated, but then let out. It was found by the learned Additional Rent Controller that two of these rooms had fallen down due to rains and not constructed again, and so the remaining room had been let out for commercial purpose. The Additional Rent Controller observed that the two rooms were in a dilapidated condition and it was claimed that these rooms had been got demolished by the landlord in order to make a ground for eviction. This plea was rejected as being contrary to common sense. Another point raised was that some rooms shown in the possession of Gopi Ram in the plan Ex. A2 were actually with the landlord. This plea was held to be baseless as the son of Gopi Ram has stated that the rooms A and B were owned by them. Some house tax entries were referred to for ascertaining the true state of affairs.

(11) In support of this petition it was urged by the learned counsel that the judgment of the Additional Rent Controller was vitiated by numerous defects, particularly on the question as to whether suitable premises were available with the landlord. It was pointed out that the house tax record regarding house No. 387 shows as many as seven rooms available with the landlord. On the other hand, I have been referred to certain plans relating to house Nos. 387 and 388 which show that the landlord has not got more accommodation than what has been found. The plan Ex. 42 filed in the case shows the possession of Mauji Ram of very small accommodation indeed. There are two rooms 8' x 8' each and the two rooms 10' x 8' each and a small kitchen and a verandah on the ground floor and a common courtyard ll'-6'x 1l'-6' and there is an open terrace on the top. It can by no means be described as 'sufficient accommodation' in any reasonable manner. The learned Additional Rent Controller referred to drawing room-cum-dining room, but I doubt if any of these rooms can be used for any such purpose. These are all questions of fact which I have examined for the purpose of understanding the argument, but I am unable to hold that the Additional Rent Controller was wrong in coming to the conclusion that the landlord was short of accommodation. If I were to give a finding, I would hold that the accommodation is totally inadequate. But, I assume that the accommodation was found convenient by the landlord at some earlier date ; otherwise he would not have let out other property on rent. It is most probable that the three sons of the landlord were quite young earlier and he was also not so well of financially and had to rely on some rental income. Now that the sons are grown up and one of them is married, there is a real necessity for more accommodation.

(12) This brings me to the basic point urged in support of the petition which is that previously the landlord had applied for eviction of the tenant from premises No. 152. This eviction petition was filed on the ground of bona fide personal requirement It was the case of the tenant that an eviction decree had been obtained which meant that more accommodation was there with the landlord. However, there was no real decree in this case because the tenant appears to have left the premises without any decree being passed. It has somehow been held by the Additional Rent Controller that there was four rooms in house No. 152 which came to the landlord by means of this vacation of premises. The real point in the case is that it was nowhere pleaded that these rooms had fallen down. It was not even the case of the landlord that there were four rooms of which three had fallen down. It is quite surprising that the Additional Rent Controller reached the conclusion that these rooms had fallen down and, thereforee, the premises had been let for commercial purpose. There is a local commissioner's report at page 107 of the file accompanied by a map of property No. 152. This map which was made by Shri M.S. Tomar, Archittect, shows one room 16'-6' x 9'-6' and also shows an open terrace, but there is nothing in the report that any room bad fallen down. One would have thought that a room measuring 16'-6' X 9-6 would also be a useful room to have for a family which lives in four small rooms measuring 10' x 9' or less. There is also another plan on record showing that previously the first floor of No. 152-A, Main Bazar, Narela, owned by Mauji Ram had three rooms but the surprising thing is that there is no plea about the falling down of two of these rooms. The eviction petition was filed on May 22, 1976; the written statement was filed on October 21, 1976. It was distinctly pleaded in the written statement as follows;-

'the petitioner has got three rooms, one delan on the 1st Floor of shop No. 152. Nerala Bazar, Delhi. This premises is very near to the aforesaid premises and the premises in suit is very far away From H. No. 388. The aforesaid accommodation of 1st floor of shop No. 152 is lying vacant for the last several years. However, the shop No. 152 is in the commercial use of the petitioner'.

(13) This plea, thereforee, was raised in the written statement to show that the landlord had more accommodation than he was claiming in the application for eviction. A replication was filed in which it was stated as follows on this point:-

'PROPERTYbearing No. 152 situate in Narela is commercial and not residential. No premises in the said property No, 152 are vacant. The said property was let out to Shri Anand Swaroop for commercial purpose who is still in occupation of the same. The said property No. 152, being commercial, cannot be used for residential purposes'.

(14) No plea is raised in this replication to the effect that any rooms had fallen down in shop No. 152. It is, thereforee, somewhat surprising to find a conclusion in the judgment sought to be revised to the effect that two rooms had fallen down. The replication was filed on November 8, 1976. Shri Mauji Ram, petitioning landlord, made his statement in court in December 1976, in which he has stated that the upper portion of the property No. 152 had been let out to Anand Swaroop for commercia! purpose. He stated that there was only one room and one verandah. There is no mention in the examination in chief or the cross-examination that any portion had fallen down. But, in the crossexamination it was stated as follows :

'IT is wrong to suggest there are three rooms there. I have let out the suit accommodation above the shop about one year back. It is incorrect that it is still in my possession.'

(15) I do not understand why the Additional Rent Controller came to the conclusion that there were three rooms of which two had fallen down. either there were three rooms originally or there was only one room. The statement of Shri Anand Swaroop (AW-5) was to the effect that he had taken on rent the upper portion of building No. 152 at a monthly rent of Rs. 40. The premises consist of only one room and a Varandah and the properly was being used for storing goods. Obviously, there is some error in the Additional Rent Controller's. judgment regarding why there is only one room now and there were three rooms earlier. However, this question was never put to the landlord when he came to be examined as AW-1, nor was in put to him that the two extra rooms had been deliberately knocked down.

(16) This brings me to the difficult question a. to whether the finding is vitiated or whether it is based on some error which I should overlook. Basically, the question is whether the landlord had this premises available to him. . As presently, the accommodation bearing No. 152 was let out for commercial purpose about an year earlier, which would be in December, 1975. It is, thereforee, not available with the landlord. If thi property had been got vacated on the ground of bona fide personal requirement,no doubt, I would have no option but to accept the tenant's plea However, it appears that no actual eviction decree was passed.

(17) I now refer to the documents on record, relating to property No. 152. A copy of the eviction application is Ex Rx 1. It shows that an application for eviction was filed in respect of this property on the ground of bona fide personal requirement. The property is shown as three rooms and one Varandah, shown red in the plan attached. So, this would show that in March, 1974 there were three rooms. This is also shown in. the plan Ex. RX-2. Then, we have Ex. RX-3 which is the order of Shri R. P. Gupta, Additional Rent Controller. This merely states that the petition has been dismissed as withdrawn with no costs, in addition, there is Ex. RX-5 which describes the accommodation available in property No. 152, as per the house tax record. This shows the existence of four rooms on the first floor and describes it as residential, It also shows that the property is self-occupied. There is no reference to these documents in the judgment, though the same were filed on May 30,1977.

(18) I am unable to understand why no statement was made regarding all these exhibits.

(19) Examination of record shows that there were severi witnesses examined by the landlord. Only one witness appeared on behall of the tenant. He is RW-1. He did not say anything about any room having fallen down. In fact, he stated that there were three rooms in possession of the landlord in house No. 152. He aslo stated that these three rooms were capable of being used by the landlord for his residence and the petition for eviction had been filed only to increase the rent. This wittiess was cross-examined. and stated that he had seen the rooms above house No. 152 and it was wrong that there was only one room and one Varandah. He does add that he had seen these rooms three years earlier.

(20) From this evidence it is obvious that no witness on either side stated that any room had fallen down but the case of the landlord throughout was that there was only one room. It may be that he had knocked down the other rooms himself. Actually, the question whether there were three rooms or one room is resolved by the local Commissioner's report which is on record. It is not clear from the record as to how the local Commissioner was appointed and what evidence he recorded, but no objections to the report can be found. If the tenant wanted to take advantage of the claim that there were three rooms available, some more evidence on this question should have been examined or at least a fresh local Commissioner should have been applied to'.

(21) As the record stands, the case of the landlord that there was only one room and one varandah in house No. 152, was confirmed by Shri M. S. Tomar as local Commissioner. It was also confirmed by the statement of Shri Anand Swaroop who slated, that the room was with him and was let out for commercial purpose.

(22) I would have remanded this case for further enquiry on this question, but I have come to the conclusion that the tenant was at fault in tailing to make reference to the house record and other documents which showed these rooms to be in the possession of the landlord. The conclusion of the Additional Rent Contreler that this property had been let out to Anand Swaroop was a possible conclusion and, thereforee, I find I cannot interfere with the sane. However, I would like to quote what was held. The Additional Rent Controller stated :-

'the petitioner has admitted that one room has been let out for commercial purposes but according to him, the remaining two rooms had fallen down due to rains and could not be constructed and thus. the premises which were vacated on the ground of bona fide requirement were left with one room only and since this one room could not be used for their residence, so this was let out for commercial purposes'.

(23) This sentence is entirely wrong. The landlord never stated that he had got this property vacant for bona fide personal use, nor did he state that two rooms had fallen down due to rains, nor did he say that these rooms could not be used for residence. He stated that there was only one room. I find it difficult to justify the conclusion of the Additional Rent Controller, but I am compelled to this position due to the state of the record. On the evidence, as it stands, the conclusion has to be that the property No 152 has been let out to Anand Swaroop and is not available to the landlord. Even if that room was available, it would not resolve the difficulty of the landlord to any material extent except that perhaps one of his sons could have shifted to that room. I am, thereforee, of the view that the landlord is in need of further accommodation.

(24) Now, it is necessary to decide the further question whether the premises in suit were let for residence or for residence-cum-commercial purposes. Normally, one would have thought that this property bad been let out for residential-cum-commercial purpose, this inference follows from the fact that the ground floor is let out to a firm for commercial purpose and the upper floor is also let out to the same commercial firm. When a property like this is let out to a commercial firm, it would be very difficult to hold that it has been let out for residence in the absence of some cogent evidence or written document. It is not normal to let out residential property to a commercial firm and if it is let out, it would be inferred that the property had been let out for residential purpose as a kind of guest house or residential-cum-commercial house for use of that firm. The Additional Rent Controller has inferred that the property was let out for residence on the basis of some documents on record. The contention of learned counsel for the petitioner is that the document which has been relied upon by the Additional Rent Controller is not a genuine document. This document, which is challenged, is the notice Ex. A 19. It is a letter written by Satya Parkash Gupta, Advocate, and is dated 16-3-1974. The letter reads that a registered envelope had been handed over by his clients M/s. Ganga Sahai Rajinder Kumar, which, when opened, was found to be blank, and it appeared that some intentional mischief was being played on bids clients The letter then continued 'My client is a tenant under you in respect of shop No. 2078, situated in Nerala Mandi, Nerala, Delhi, at a yearly rent of Rs. 1,400. The tenancy is a yearly tenancy and the shop is taken on rent for commercial purposes. My client has paid rent up to 28-1-1974 to you in respect of the shop in the tenancy of my client. My client is a tenant under you in respect of four rooms situated in shop No.2078, Narela Mandi, Narela, Delhi, at a yearly rent of Rs.300. The tenancy is a year to year tenancy and the premises have been taken on rent for residential purposes. The rent for this portion has been paid up to 14-11-1978. My client will pay the rent to you as and when the same shall become due.

(25) In these circumstances, you are requested to inloiin my dieiit the purpose for which you sent the blank papers in the envelope to my client'.

(26) It was urged by the learned counsel that the admission contained in this notice has been relief hj'on by the Additional Rent Controller wrongly. In fact, this letter was not written under the instructions of the tenant. I have considered this plan very carefully. The suggesstion is : That the landlord himself got this letter prepared on a lawyer's letter head so as to bring about the admission that the upper floor of the property was let for residence. Though this is possible, I feel it is unlikely. The name of the lawyer is mentioned and no such person has been examined or even summoned for examination. Moreover, if the letter was correct and there was a blank paper enclosed in the registered envelope sent by Shri S. K. Suri, Advocate, then one fails to understand why reply should have been sent to Shri Mauji Ram. The identity of the client of Shri S. K. Suri, Advocate, could only be known from the contents of document. I am, thereforee, of the view that the registered envelope was not blank. Moreover, the registered envelope had not been produced.

(27) In contradistinction to the contention of the tenant, I have found that the petitioner has filed a very large number of notices which were sent to the tenant firm. These are all on record. There is a notice of Shri Babu Lal Gupta, Advocate, dated 29-4-1976, another notice of Shri S. K. Suri, Advocate, dated 4-2-1976, yet another notice from Shri S. K. Suri, Advocate, dated 19-9-1970; and one from Shri Krishan Kumar Arora, Advocate, dated 31-3-1971 and yet another from Shri K. L. Malhotra, Advocate, dated 24-1-1970. These notices do refer generally to the tenancy and most of them show that it was always the case of Mauji Ram, the landlord, that the property was let for residential purpose. The notice of Shri Babu Lal Gupta. Advocate, which is not exhibited, states this. The notice dated 4-2-1976 from Shri S. K. Suri, Advocate, states this. The notice dated 19-9-1970 (Ex RW1/1) from Shri S. K. Suri, Advocate, states in the first para that M/s Ganga Sahai Rajinder Kumar was a licensee in the ground floor at Rs. 1,000 per annum, and a licensee on the first floor for residential purpose at Rs. 300 per annum. The notice dated 31-3-1971 (Ex. RW1/2) from Shri Krishan Kumar Arora, Advocate, states that the firm was a tenant in the ground floor at Rs. 1,000 payable six monthly, and a tenant on the first floor at Rs. 300 payable also six monthly. It is, thereforee, plain that it was all along the case of the landlord that the two portions were separate and one had been let for residence. As these documents are all written by advocates on behalf of the landlord, it may well be said that they contain a statement beneficial to the landlord. But one would have expected a contrary statement in some document sent by the tenant, but none is forthcoming. It appears to me that it was the accepted position of both the parties that the ground floor was let for commercial purpose at Rs. 1,000 per annum initially which was raised later and. the first floor was let out at Rs. 300 annually for residential purpose. This means that I do not accept the case of the tenant that the property was let out for residential-cum-commercial purpose as there is no writing to suggest this. Probably the lower rate of rent was being charged because the property was let only for residence.

(28) In view of this discussion, I would come to the conclusion that the property was let out for residence and the landlord did make out a case for eviction on the ground of bona fide personal requirement. It also appears to me that the tenant did not seriously try to show that the property No. 152 was lying vacant nor was it shown that there were in fact three rooms or four rooms available in that property. Rather, the local Commissioner's report with the plan attached shows that there is only one room. I do not know how the Additional Rent Controller found that the two additional rooms had fallen down due to rains as there is no material on the record in this respect. However, it is possible that the parties might have accepted this position during arguments. In any event, I dismiss the revision petition, leaving the parties to bear their own costs.


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