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Parkash Chand JaIn Vs. Madan Mohan Lal Shri Ram (P) Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 360 of 1983
Judge
Reported in25(1984)DLT444; 1984(6)DRJ301
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantParkash Chand Jain
RespondentMadan Mohan Lal Shri Ram (P) Ltd. and anr.
Advocates: L.R. Gupta,; S.P. Pandey,; Ravinder Sethi and;
Cases Referred and Jai Jai Ram Manohar v. National Building Material Supply
Excerpt:
delhi rent control act, 1958--if a tenant acquires vacant possession of another premises, and shifts his residence, it is immaterial whether the newly acquired premises are sufficient or not.; waiver & laches : unless there is definite allegation about the knowledge of the landlord regarding the acquisition of the new premises, it cannot be said that the landlord's right for eviction would be defeated by principle of waiver or laches.; delhi rent control act, 1958 section 14(1)--the word 'may' in expression 'the court may pass a decree for eviction' has a mandatory content. - - the delhi rent control act, 1958 came into force on 9th february, 1959. the ground of eviction on the basis of alternative accommodation with the tenant was introduced for the first time in the rent.....sultan singh, j.(1) this second appeal by the heirs and legal representatives of parkash chand jain, tenant under section 39 of the delhi rent control act, 1958 (for short 'the act') challenges the judgment and order dated 3rd september, 1983 of the rent control tribunal confirming the order dated 10th may. 1982 of the additional controller passing an order of eviction in favor of m/s. madan mohan lal shri ram pvt. ltd. (respondent no. 1) against the appellants and shri naresh chander jain, (respondent no. 2) on the grounds covered by clauses (b), (d) & (h) of the proviso to sub-section (1) of section 14 of the act. naresh chander jain (respondent no. 2) has also filed another appeal (s.a.o. no. 361 of 1983) challenging the order of eviction against him. this judgment will dispose of both.....
Judgment:

Sultan Singh, J.

(1) This second appeal by the heirs and legal representatives of Parkash Chand Jain, tenant under Section 39 of the Delhi Rent Control Act, 1958 (for short 'The Act') challenges the judgment and order dated 3rd September, 1983 of the Rent Control Tribunal confirming the order dated 10th May. 1982 of the Additional Controller passing an order of eviction in favor of M/s. Madan Mohan Lal Shri Ram Pvt. Ltd. (Respondent No. 1) against the appellants and Shri Naresh Chander Jain, (Respondent No. 2) on the grounds covered by Clauses (b), (d) & (h) of the proviso to Sub-section (1) of Section 14 of the Act. Naresh Chander Jain (Respondent No. 2) has also filed another appeal (S.A.O. No. 361 of 1983) challenging the order of eviction against him. This judgment will dispose of both the appeals.

(2) Briefly the facts are that on 12th October, 1976 the Respondent No. I filed a petition for eviction against Parkash Chand Jain, predecessor of the appellants and Respondent No. 2 alleging that Parkash Chand Jain was inducted as a tenant in a flat on the ground floor of 6, Pusa Road, New Delhi shown red in the plan on a monthly rent of Rs. 124.09 paise in terms of the lease deed dated 1st February, 1952; that he had sublet, assigned or otherwise parted with the possession of the entire premises to Respondent No. 2 in 1970 without the consent of the landlord; that the tenant had acquired residence at 25 Pusa Road, New Delhi where he and members of his family were residing; and t

(3) In the written statement filed by the tenant Prakash Chand Jain, predecessor of the appellants it was pleaded that he was not tenant of the entire portion i.e. three rooms, kitchen, two baths, pantry, verandah and open lawn at ground floor, that he was tenant with respect to one room, latrine and bath at ground floor; that he had not sublet, assigned or parted with the possession of the premises under his tenancy to any person, that Respondent No. 2 was in occupation of the premises which were not included in the tenanted premises. As regards ground of eviction covered by Clause (h) of the proviso to Section 14(1) of the Act it was pleaded that some members of his family were residing in the tenancy premises. it was denied that no member of his family was residing in the premises for six months prior to the institution of the eviction case.

(4) In his separate written statement Naresh Chander Jain, Respondent No. 2 pleaded that he was neither tenant nor sub-tenant in the premises that he was independently in' possession of the premises and had become owner of the same by adverse possession. He submitted that he had been in continuous possession since 1955 and had always been claiming himself to be the owner there.

(5) The Additional Controller by judgment dated 10th May, 1982 held that Prakash Chand Jain, predecessor of the appellants was tenant with respect to the entire premises in suit on ground floor, that he had sublet, assigned or otherwise parted with the possession of a portion of the premises to Respondent No. 2 and that neither the tenant nor any member or his family was residing in the premises during six months prior to the institution of the eviction case; and that the tenant Parkash Chand Jain had acquired vacant possession of the premises at 25, Pusa Road, New Delhi. He passed an order of eviction on the grounds covered by Clauses (b), (d) & (h) of the proviso to Section 14(1) of the Act. On appeal the Rent Control Tribunal by the impugned judgment dated 3rd September, 1983 confirmed the order of eviction with respect to the premises on ground floor of the suit house.

(6) Learned counsel turn the appellants submits that the findings of the Tribunal and the Rent Controller are based on no evidence, that the landlord waived its right of eviction, that the alternative accommodation acquired by the tenant was not suitable for his requirement, that the portion of the premises in possession of Respondent No. 2 was not included in the tenanted premises, that the eviction case was filed in 1976 while the property 25, Pusa Road, New Delhi was purchased by Parkash Chand Jain and others in 1955 and as Such the Rent Control authorities ought not to have passed the order of eviction and that the eviction application does not disclose any cause of action. It is also submitted that the application for leave to amend the written statement was wrongly dismissed by the Rent Control Tribunal. Learned counsel for Respondent No. 2 in support of S.A.O. No. 361 of 1983 submits that the premises under his occupation were never a part of the tenancy premises, that he had been in occupation of one room, kitchen, pantry since 1955 in his own right and has become owner by adverse possession and that the findings are based on no evidence.

(7) Clauses (b), (d) & (h) of the proviso to Sub-section (1) of Section 14 of the Act read as under :--

'14(1)Notwithstanding anything to the contrary contained in any other law or contract) no order or decree for the recovery of pos- session 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 :-

A)x x x xx

B)that the tenant has) on of after the 9th day of June) 1952, sublet) assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord;

C)x x x xx

D)that the premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application for the recovery of possession thereof;

E)x x x x x

F)x x x x x

G)x x x x x

H)that the tenant has) whether before or after the commencement of this Act, built) acquired vacant possession of, or been allotted) a residence;'

(8) Learned counsel for the appellants submits that the application for eviction on the ground covered by Clause (h) does not allege all the ingredients required to be pleaded under that clause. His submission is that the landlord-respondent No. I did not allege (i) whether 'Vacant' possession of any premises was acquired by the tenant; (ii) whether the alleged acquisition was before or after the commencement of the Act and (iii) whether the acquisition was before or after the commencement of the tenancy in suit. To appreciate the plea it is necessary to reproduce the pleadings regarding this ground of eviction. Para 18(a)(ii) of the eviction petition reads as under:-

'THAT the Respondent No. I has acquired a residence at 25, Pusa Road, New Delhi where he and .the members of his family are residing'.

In reply the tenant in his written statement pleaded as under :-

'IN reply to para 18(a)(ii) of the petition it is submitted that some of the member of the family of the respondent are residing in the tenanted premises'.

A bare reading of the allegations contained in eviction petition mean that the tenant has acquired residence where he and members of his family are residing. In other words it means that the tenant acquired vacant possession of 25, Pusa Road, New Delhi. When there is allegation that the tenant and the members of his family were residing at 25 Pusa Road, it implies that there is an allegation that the tenant acquired vacant possession and he with his family members shifted to the acquired premises. A person cannot shift to the acquired premises unless the premises were vacant.

(9) Next it is submitted that there is no allegation as to when the premises at 25, Pusa Road, New Delhi were acquired by the tenant. This is a fact within the knowledge of the tenant who ought to have pleaded in the written statement. The ground of eviction under clause (h) is wide enough to cover the case of acquisition before or after the commencement of the Act. The Delhi Rent Control Act, 1958 came into force on 9th February, 1959. The ground of eviction on the basis of alternative accommodation with the tenant was introduced for the first time in the Rent Control Act of 1947. In the Act of 1952 similar ground was incorporated when it was provided that the tenant was liable to be evicted if he bad acquired before or after the commencement of 1952 Act a suitable residence. Under the present Act of 1958, the question whether the acquired premises were suitable or not is immaterial. Clause (h) simply means that if a tenant has built, acquired vacant possession or allotted a residence whether before 9th February. 1959 or thereafter he would be liable to eviction irrespective of the fact whether acquired premises were suitable or not. It has however been held in a number of cases that the acquisition, allotment or building of the residence by the tenant must be after the commencement of the tenancy in question. It is for the tenant to allege when he acquired the premises. In the present case the tenant has not denied the acquisition of the premises at 25 Pusa Road, New Delhi. He has not denied that he and some of his family members have shifted to 25, Pusa Road. New Delhi. His plea is that some of the members of his family were still residing in the tenancy premises. The pleadings do no dispute acquisition of vacant possession of premises at 25, Pusa Road, New Delhi and occupation of it by the tenant and some members of his family. It is in evidence of R 1 W 1 Rakesh Jain son of the tenant that his brothers are living at 25, Pusa Road, New Delhi in a portion owned by their father. It has further been deposed that his father had shifted to 25, Pusa Road, New Delhi for a short period and had come back to the suit premises. He did not know when his father shifted to Pusa Road and came back to the suit premises. Naresh Chander Jain, R 2 W I has deposed that Parkash Chand Jain had left for two months but he was not in a position to tell the date of his shifting to 25 Pusa Road, New Delhi. The entire evidence has been read with the help of the learned counsel for the parties. There is no evidence to show when vacant possession of 25 Pusa Road, New Delhi was acquired by the tenant and when he and members of his family shifted to the acquired premises. The tenant accepts that he acquired 25 Pusa Road, New Delhi and some members of his family have shifted there. His plea is that some members of his family were still in occupation of the suit premises. Such a plea is not open to a tenant. If once a tenant acquires vacant possession of another premises and shifts his residence it is immaterial whether the newly acquired premises are sufficient or not. In the instant case it cannot be denied that the tenant acquired possession of 25, Pusa Road, New Delhi and he and some of his family members shifted to the said premises.

(10) Learned counsel for the appellants next submits that the property 25 Pusa Road, New Delhi was purchased in 1955 and the present eviction petition was filed in 1976 i.e. nearly 21 years after the purchase of the property and thereforee the Rent Control authorities have no jurisdiction to pass an order of eviction after a lapse of 21 years. The date of acquiring vacant possession has not been disclosed on behalf of the tenant up to this date. There is also no plea what was the accommodation acquired by the tenant, although it is argued that the acquired premises were unsuitable and insufficient. An application for leave to amend the written statement was filed before the Rent Control Tribunal after it had heard arguments and reserved orders. The application was dismissed by the Rent Control Tribunal and the same is being p'essed before me. In this application it is proposed to add that Parkash Chand Jain acquired residential accommodation 25, Pusa Road, New Delhi jointly with his brothers and sisters-in-law vide the registered sale deed dated 25th July, 1955, that the acquired two rooms set was not suitable, that there was no cause of action for eviction under clause (h) of the Delhi Rent Control Act, 1952, that the landlord waived the right to evict by his own conduct by not initiating eviction proceedings for 21 years . against the tenant. These amendments are not material for determining whether the tenant was liable to eviction under clause (h). As already submitted the ground of eviction as alleged was admitted by the tenant and thereforee the amendment would be of no effect. The question whether the acquired premises were suitable is not relevant. Further the question whether the premises were acquired in 1955 or at any other time is also irrelevant. The purpose of clause (h) is that the tenant is not entitled to retain the tenancy premises if he had acquired alternative accommodation for residence. Further it is not alleged either in the original written statement or in the-proposed amendment as to when the landlord-respondent No. I came to know about the acquisition of 25 Pusa Road, New Delhi by the tenant. Unless there is definite allegation about the knowledge of the landlord regarding the acquisition of new premises, it cannot be said that the landlord's right for eviction would be defeated by principles of waiver or laches. In the absence of specific facts which may be the basis of waiver and laches, no relief can be granted to a tenant. The landlord-respondent No. I alleged that the tenant sublet, assigned or parted with the possession of the entire premises to Naresh Chand Jain, Respondent No. 2 in 1970 and thereforee it was implied that the tenant and his family members shifted to the newly acquired premises i.e. 25 Pusa Road, New Delhi in 1970. The eviction case was filed on 12th October, 1976. It cannot be said that the landlord waived its right to claim eviction under the said clause.

(11) In Hem Chand Baid v. Prem Wati Parekh 1979 (16 DLT. 191, the Division Bench held that once protection is lost by a tenant by his default under clause (h), it is lost for ever and cannot be revived at any point of time or under any circumstances. Further it has been observed that the landlord's right of eviction might get defeated by application of general principles of waiver or laches in exceptional cases. In Sobha Singh and another v. Vinod Kumar 1975 R.C.J. 276 it has been held that the need of the tenant and the suitability of the new residence is not relevant to be taken into consideration for the purposes of clause (h). In Shyam Sunder v. Khan Chand 1966 D.L.T. 223, it has been observed that the underlying object of enacting clause (h) of the proviso to Sub-section (1) of Section 14 of the Act was, that the tenant should not have more than one premises for his residence in these days of housing shortage. In case the tenant had taken on rent any premises for his residence and he thereafter acquires the vacant possession of another premises for his residence the tenant in such an eventuality would have to quit the earlier tenanted premises. Further it has been observed that it is for the tenant when he takes the new place for his residence to see that it is sufficient for his needs and having taken vacant possession of the new premises for residence he cannot refuse to vacate the earlier tenanted premises on the ground that the new premises, the possession of which he has acquired for residence, are not sufficient for his requirement. It has been further observed that it is not necessary for the landlord to show that the new place acquired by the tenant is also suitable for his needs. The Division Bench in Avinash Kaur v. Dr. Beli Ram 1970 R.C.J. 995 has observed that the tenant would be liable to be evicted under clause (h) of the proviso to Sub-section (1) of Section 14 of the Act only if during the tenancy he builds, acquires vacant possession of, is allotted a residence.

(12) In the instant case the tenancy commenced in 1952. According to the tenant 25 Pusa Road, New Delhi was purchased in 1955. It is not known when he acquired vacant possession of the premises. There is neither . any plea nor any evidence to show the date of acquisition of vacant possession of any portion of 25, Pusa Road, New Delhi. It was further admitted in the written statement that some members of the family of the tenant were in occupation of the suit premises. In evidence it is admitted that the tenant and some members of his family shifted to 25 Pusa Road, New Delhi. It was not disclosed when they shifted there. It is thereforee clear that after the commencement of the tenancy in suit in 1952 the tenant acquired vacant possession of a portion of 25, Pusa Road, New Delhi and that he and some members of his family started residing there. These facts are sufficient to evict the tenant under clause (h). Learned counsel for the appellants refers to Mansaram v. S.P. Pathak and others, : [1984]1SCR139 which was a case under C.P. and Berar letting of Houses and Rent Control Order, 1949 where a observation has been made that eviction cannot be ordered after 22 years. That was a case on its own facts. It has been observed that there was no finding as to whether the landlord had given intimation of vacancy of the premises as required under the Rent Control Act. Further it was held that there was no order of allotment issued to the tenant on the ground that he was holding an office of profit. These two were the basic requirements on the basis of which order could have been passed dispossessing the tenant which were missing in that case. The Supreme Court had no doubt observed that there has been undue delay in evicting the tenant. I have gone through the judgment of the Supreme Court and I am of the opinion that the facts of that case are entirely different from the facts and pleadings of the present case. In that case it was pleaded that there was no allotment order and that there was no intimation of vacancy by the landlord to the authorities concerned. In the case before me there are neither any pleadings nor evidence to show when the tenant acquired vacant possession and when the landlord came to know of such acquisition. In Hem Chand Baid (Supra) it has been observed that the land- lord's right of eviction might get defeated by application of general principles of waiver or laches in exceptional cases. No exceptional circumstance was ever pleaded in the present ca.se. In the proposed amendment also no exceptional circumstance has been pleaded.

(13) Learned counsel for the appellants refers to Battoo Mal v. Rameshwar Nath and another I.L.R. (1970) Del 748. In that case tenant's house had actually been vacated in 1962 and the eviction petition was filed in 1963. It was, however, observed that in an exceptional case if the landlord files the eviction petition too long after the tenant obtains vacant possession of a residence for himself then the tenant may defeat the eviction petition on the ground that he had in the meanwhile let out his own residence to some other person as he was not bound to keep it vacant waiting for the landlord to file an eviction petition. The facts of the present case are however entirely different.

(14) Learned counsel for the appellants next submits that the ground of eviction became available to the landlord in 1955 when the tenant purchased the property 25, Pusa Road, New Delhi. I do not agree. The ground of eviction became available only when the tenant acquired vacant possession. There is no plea in the written statement as to when he acquired vacant possession. In the proposed amendment to the written statement also it is mentioned that the property was purchased in July, 1955. It was not mentioned when vacant possession was acquired.

(15) Learned counsel for the appellants has referred to Motor General Traders and another v. State of Andhra Pradesh and others Air 1984 S.C. 121 a case under Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act 1960. Section 32(b) of that Act had exempted buildings constructed on and after 26th August, 1957 from the operation of the Act. It was held that the provision was vocative of Article 14. Learned counsel submits that the question whether the tenant had acquired before or after the commencement of the Act, 1958 is vocative of Anide 14 of the Constitution of India. I do not appreciate how this judgment helps the appellants. In the case before the Supreme Court buildings constructed after 26th August, 1957 were completely exempted from the operation of Rent Act. In those circumstances it was held that there was no justification to apply the Act to the building which Was constructed prior to 26th August, 1957 and not to apply in a case which was constructed after that date.

(16) Learned counsel leas referred to E.P. Royappa v. State of Tamil Nadu and another, : (1974)ILLJ172SC , Ramanlal Daryaram Sfietfy v. The International Airport Authority of India and others Air 1979 S.C. 1928 , Ajay Hasia etc. v. Khalid Majib Sehravardi and others, : (1981)ILLJ103SC and Smt. Maneka Gandhi v. Union of India and another, : [1978]2SCR621 . These authorities have no relevancy for the questions before me in this case, Theref'ore it is not necessary to discuss them.

(17) Learned counsel for the appellants next submits that proviso to Section 14(1) of the Act provides 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. He submits that the passing of an order of eviction is not mandatory but discretionary. I do not agree. The Full Bench in Delhi Cloth & General Mills Co. Ltd. v. Hem Chand and another, : AIR1972Delhi275 has observed that the expression 'may' in the proviso to Sub-section (1) has a mandatory content and that in case the landlord satisfied the conditions mentioned in clauses to the proviso to Sub-section (1) of Section 14 of the Act the Controller was bound to pass an order for the recovery of possession against the tenant and has no discretion to refuse it. It has been further observed that inherent powers of the court are not meant to override the substantive rights conferred by the Statute. They can be exercised only to prevent an abuse of the process of the court but not to override the provisions of law. In Bhaiya Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhuprasad and others, : [1963]3SCR312 it has been observed that the court has no discretion and has to pass a decree for eviction on account of non-payment of rent in case the other conditions mentioned in Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 were satisfied. In Vora Abbasbhdi Alimahomed v. Haji Gulamnabi Haji Safibhai, : [1964]5SCR157 it has been observed that the court is bound to pass a decree in ejectment if conditions of Section 12(3) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 were fulfillled. It has been observed that the word ''may' in expression 'the court may pass a decree for eviction' has a mandatory content.

(18) Learned counsel next submits that the application for leave to amend be allowed. Under Order 6 Rule 17 of the Code of Civil Procedure, the court at any stage of the proceedings has discretion to allow amendment which may be necessary for the purpose of determining the real question in controversy between the parties. As already observed in the present case the proposed amendments are not necessary to resolve any controversy between the parties. The proposed amendment relates to clause (h) of the proviso to Section 14(1) of the Act. The requirement of clause (h) is when vacant possession of the premises was acquired. No amendment is proposed to suggest when the tenant acquired vacant possession. According to the landlord vacant possession was acquired sometime in 1970 when the premises were sublet, or assigned by the tenant. Learned counsel for the appellants leas referred to Ishwardas v. The State of Madhya Pradesh and others, : (1979)4SCC163 , M/s. Ganesh Trading Co. V. Moji Ram. : [1978]2SCR614 , and Jai Jai Ram Manohar v. National Building Material Supply,Gurgaon : [1970]1SCR22 in support of his submission that he may be allowed to amend the written statement. There is no dispute about the proposition that the .amendment of the written statement can be allowed at any stage but amendments are to be allowed only to decide the controversy in question. I am, thereforee, of the opinion that no case has been made out for grant of leave to amend the written statement. The pleadings on record, without any evidence, are sufficient to pass an order of eviction under clause (h) on the basis of an admission contained in the written statement itself.

(19) Learned counsel next submits that the landlord has failed to prove the ground covered by clause (d) of the proviso to Section 14(1) of the Act. Under this clause if the tenant or any member of his family had not resided for six months immediately prior to the institution of the eviction case the tenant is liable to eviction. The eviction application was filed on 12th October, 1976. Thus it has to be seen whether the tenant or any member of his family resided in the suit premises during the period from 12th April, 1976 to 12th October, 1976. The landlord has produced its Accountant Mr. Radha Krishan A.W. 2 who has deposed that the tenant and his family used to live in the disputed premises up to 1970 and then shifted to 25 Pusa Road, New Delhi. He has further deposed that no member of his family had been residing in the suit premises since then. In other words, it means that there was no body to occupy the tenancy premises during six months prior to the institution of the eviction case. The tenant Parkash Chand Jain died on 15th March, 1980 leaving behind two sons and two daughters. Rakesh Jain one of his sons appeared as R 1 W 1. He has not controverter the evidence of A.W. 2. He has not deposed whether any member of the tenant's family was residing in the tenancy premises during the said six months. Further ration card of the tenant's family is the best evidence to show whether he was residing during the crucial period in the suit premises or at any other place. Ration card has not been produced. The plea of the tenant in the written statement is also vague. It is stated that some members of the family shifted to 25 Pusa Road, New Delhi and some remained in the tenanted premises. It is not clear who shifted to the newly acquired premises. It was a fact within the special knowledge of the tenant which was not disclosed. The tenant has also not disclosed during evidence that any family member was residing during the six months from 12th April, 1976 to 12th October, 1976. I am, thereforee, of the opinion that the landlord has also made out a ground of eviction under clause (d) of the proviso to Sub-section (1) of Section 14 of the Act against the tenant.

(20) The last ground of eviction is under clause (b) of the proviso to Section 14(1) of the Act. Both the courts have held that the entire premises in suit on ground floor were under tenancy. Naresh Chander Jain, Respondent No. 2 has pleaded that he has been in occupation in his own right. He has failed to lead any evidence in support of his plea. He has examined him- self as a witness who has deposed that nobody demanded any rent from him and he has not paid any rent. He has further deposed that he has been in occupation in his own right. His evidence is not sufficient to hold that he is, in occupation of the premises in his own right. Now the question is whether he is a licensee, a tenant or a sub-tenant in the premises. The evidence of the landlord shows that the entire premises in suit on the ground floor are tenanted. Shri Radha Kishan A.W. 2 is the Accountant of the landlord company. He is aged 61 years. He joined the company in 1943. He has deposed that the company let out the premises to Parkash Chand Jain in 1952 for residential purposes, the portion shown red in the plan Ex. A.W. 2/1, that the site plan was correct and that the tenant and the family used to live in premises up to 1970. In cross-examination it was suggested that the premises in occupation of Naresh Chander Jain were not included in the premises of the tenancy of Parkash Chand Jain. This fact was emphatically denied by this witness. He has further deposed that Parkash Chand Jain had three rooms and one room on the barsati floor. In other words, it means that Parkash Chand Jain was a tenant in the premises in suit on ground floor i.e. including the portion in occupation of Naresh Chander Jain, Respondent No. 2. In rebuttal oral evidence on behalf of the tenant is of Rakesh Jain as R 1 W 1 On the date of his deposition i.e. 27th May, 1981 he was 33 years. The premises were let with effect from 1st February, 1952. In other words he was about 3 or 4 years old at the time of letting. His evidence is not material to determine as to what portion of the premises was let out in 1952 to his father Shri Parkash Chand Jain. He has no doubt deposed that the premises in occupation of Naresh Chander Jain have not been under the- tenancy of his father Parkash Chand Jain. He has deposed that rooms marked 'A' and 'B' of Ex. A.W. 21 on the ground floor have been under the tenancy while room 'C' is not in their tenancy. His solitary statement is not reliable. The appellants have failed to produce any evidence to show as to who has been in occupation of the premises now in occupation of Naresh Chander Jain during the period from 1952 to 1955. According to allegation of Naresh Chander Jain he occupied this portion in 1955. According to the landlord these premises were in occupation of the tenant Parkash Chand Jain from 1952 onwards. The rent deed produced by the landlord has not given the details of the premises. The two courts after appreciating the evidence on record have concluded that the entire premises in suit on ground floor were under the tenancy of Parkash Chand Jain. It has not been proved in what capacity Naresh Chander Jain, Respondent No. 2 has been in occupation of the premises i.e. room 'C'. It must, thereforee, be held that the tenant parted with the possession of a portion of the tenanted premises.

(21) Learned counsel for Naresh Chander Jain, Respondent No. 2 has filed an application (C.M. No. 3939 of 1983) under Order 41 Rule 27 of the Code of Civil Procedure. He submits that the Rent Control Tribunal has taken into consideration copies of the electoral roll of 1975, but Naresh Chander Jain was in occupation of the premises from 1955. Along with the application he has filed certified copies showing birth of a female and other child in 1959 and 1966 in the suit premises. He has also filed electoral rolls of 1961 and 1971 in order to show that he has been in occupation of the premises since 1955. It is admitted by the learned counsel for the landlord that the application for additional evidence was made before the Rent Controller to admit on record electoral roll of 1975 but his application was dismissed. The electoral roll of 1975 was not admitted on record. It appears that the uninhibited documents were referred to by the Tribunal inadvertently. He submits that the electoral roll of 1975 may not thereforee be taken into consideration. There a;e no grounds for taking into consideration any additional evidence at this stage. Even if it is assumed for the sake of argument that Respondent No. 2 Naresh Chander Jain occupied the premises in 1955, there is no evidence to show that his possession is protected under law. He has failed to prove his alleged independent right. The premises in his occupation as already held were under the tenancy of Parkash Chand Jain. The tenancy commenced in 1952 and according to the admission of Naresh Chander Jain he occupied in 1955 i.e. after 9th June, 1952 which is a ground of eviction under clause (b) of the proviso to Section 14(1) of the Act. Under the circumstances I do not find any necessity to allow the additional evidence sought to be produced by Respondent Mo. 2 at this stage. This application is thereforee dismissed.

(22) Learned counsel for the appellants and Respondent No. 2 further submit that there is no evidence in support of the grounds of eviction. The entire evidence on record has been read with the help of the counsel. The Controller a'd the Tribunal have concluded that the grounds of eviction have been made out. I am also of the view that on the evidence on record it cannot be said that the order of eviction passed by the Controller and the Tribunal is without any evidence. These are second appeals under Section 39 of the Act. No substantial question of law is involved in the appeals. The two appeals (S.A.O. No. 360 of 1983 filed by Parkash Chand Jain through L.Rs. and S.A.O. No. 361 of 1983 filed by Naresh Chaider Jain) have no merit and are liable to be dismissed. The two appeals are the before dismissed with no order's to costs.


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