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Kewal Krishan Vs. J. Stone and Company (India) Pvt. Ltd. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 274 of 1978
Judge
Reported inAIR1981Delhi199; 19(1981)DLT202; 1981(2)DRJ102; 1981RLR242
ActsDelhi Rent Control Act, 1958 - Sections 14(1); Code of Civil Procedure (CPC), 1908 - Sections 103
AppellantKewal Krishan
RespondentJ. Stone and Company (India) Pvt. Ltd.
Advocates: V.B. Andley and; C.M. Chopra, Advs
Cases ReferredV. Dhanapal Chettier v. Yasodai Ammal
Excerpt:
.....tenancy was necessary. in the high court, the ground of notice was not pressed and the tenant asks for remand of the case to the tribunal on the plea that he will otherwise lose the inherent right of appeal. the tenant further pleaded that the landlord is indebted and cannot afford to occupy the premises.; indebtedness of the landlord is no ground for rejecting the petition and evidence on record is sufficierst to pronounce a judgment : the remand of the case would only cause delay and increase the cost of the parties.; code of civil procedure, 1908 - section 103.; held that the high court in second appeal is empowered to determine issues which have not been determined by lower appellate court or both by the court of the first instance and the lower appellate court if there is..........case on merits. the learned counsel for the appellant, however, submits that there is sufficient evidence on record and that remand of the case would only cause delay and increase costs to the parties. he says that the eviction petition was filed on 22nd february, 1974, and that it should be decided at the earliest. (6) section 103 of the code of civil procedure reads as under :- '103. in any second appeal, the high court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal :- (a) which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court, or (b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is.....
Judgment:

Sultan Singh, J.

(1) This second appeal under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter called the Act) on behalf of the landlord is directed against the judgment and order dated 19th May, 1978 of the Rent Control Tribunal by which it reversed the order of eviction dated 11th February, 1976 passed by the Additional Rent Controller, Delhi, under Section 14(l)(e) of the Act and finally dismissed the eviction application,

(2) The appellant let out the building situated at Plot No. D-282, defense Colony, New Delhi, to the respondent with effect from 28th January, 1964 for a period of 5 years as per registered lease deed dated 5th February, 19b4. The tenant-respondent had an option to renew the lease for another 5 years. The agreed rent was Rs. 600.00 besides Rs. 225.00 on account, of hire of electric fans, geysers and fittings. The appellant in his application for eviction states that the premises were let out for residential purposes and are required by him, who is the owner thereof for occupation as a residence for himself and for the members of his family dependent upon him and that he has no other suitable residential accommodation. The family of the petitioner consists of himself, his wife, one son and one daughter. The petitioner is a retired Lt. Colonel. He retired from Army service on 3rd March, 1970 but was re-employed thereafter and the tenure of his re-employment ended on 13th September, 1973. The appellant, as alleged by him, was residing at 21 Officers Hostel, Civil Lines, Meerut, with temporary agreement.

(3) The respondent by his written statement contested the appellant's claim for eviction. The respondent company alleges that the lease has not expired by efflux of time, that tenancy still subsists, that eviction petition is premature, that no notice of eviction was served and, thereforee, the petitioner is not maintainable. The respondent also says that the eviction petition has been filed with an oblique motive of letting out the premises at a higher rent after getting the same vacated from the respondent and that the appellant has absolutely no intention of occupying the premises for his residence.

(4) The Additional Rent Controller, as already stated, by his judgment and order dated 11th February, 1976, held that no notice of termination of tenancy was necessary because the tenancy was determined by efflux of time on 19th January, 1974, that the eviction petition was not premature, that the appellant is entitled to an order of eviction under Section 14(l)(e) of the Act. The respondent-tenant filed an appeal before the Tribunal.

(5) The Tribunal by an order dated 19th May, 1978, held that notice of eviction in the circumstances of the case was necessary and as admittedly notice of eviction was not served it was held that the eviction petition was not maintainable and consequently the petition was rejected. The Tribunal did not go into the merits of the ground of eviction. In this second appeal the learned counsel for the appellant submits that the tenancy was a tenancy for a fixed period and as such no notice of eviction was necessary but, in any case, he submits that notice of eviction is not necessary to be served upon the respondent in view of the latest pronouncement of the Supreme Court in V. Dhanapal Chettier v. Yasodai Ammal AIR 1979 CJ 358. He further states that though the Tribunal has not given its finding on the question whether the appellant is entitled to an order of eviction under Section 14(l)(e) of the Act, this Court in the exercise of its discretion under Section 103 of the Code of Civil Procedure should decide the matter once for all. He says that the appellant is entitled to an order of eviction on the alleged ground. Learned counsel for the respondent on the other hand, fairly conceded that in view of the said judgment of the Supreme Court it is not necessary to serve a notice of eviction upon a tenant in the cases governed by the Delhi Rent Control Act. Next it is submitted by the learned counsel that this Court should remand the matter to the Tribunal for decision of the case on merits. The learned counsel for the appellant, however, submits that there is sufficient evidence on record and that remand of the case would only cause delay and increase costs to the parties. He says that the eviction petition was filed on 22nd February, 1974, and that it should be decided at the earliest.

(6) Section 103 of the Code of Civil Procedure reads as under :-

'103. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal :- (a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or (b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100.'

(7) Under this section the High Court in a second appeal is empowered to determine issues which have not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court. This can be done only when there is evidence on record sufficient for the purpose of pronouncing a judgment. It is not contended by either of the parties that the evidence on record is insufficient to enable this Court to pronounce a judgment Argument by the learned counsel for the respondent is that the tenant has an inherent right of appeal after the matter is remanded and decided by the Rent Control Tribunal. I do not agree. Section 103 of the Code of Civil Procedure confers a discretion upon the court to decide any issue which has not been determined by the Tribunal. A bare reading of Section 103 as set out above shows that this Court can decide issues which have not been decided by the first Appellate Court. I am of the view that remand in this case would only cause delay and also increase the costs to the parties. Moreover, this case is a matter of eviction on the ground of bona fide requirement. The appellant states that he has no other accommodation for his residence in Delhi and that he has already been litigating with the respondent for the last about seven years.

(8) The learned counsel for the parties have taken me through the documentary and oral evidence on record. Shri Gopi Krishan, Nazir Sadar Collectorate, Meerut, (AW I) brought the record relating to room No. 21 of the Officers' Hostel at Meerut which was allotted to the appellant on temporary basis. He says that this hostel is meant for the officers who do not get accommodation and that it is only a temporary allotment. He says that the hostel authorities have served notices on the appellant to vacate which are Exhibits A-1 and A-2. Shri J. G.Bhasin, Clerk Military Secretary's Branch, (AW-2) deposed that the appellant retired on 14th September, 1973 Sardar Amarjit Singh, Stenographer, Punjab and Sind Bank, Connaught Circus, New Delhi (AW-3) stated that the appellant has taken a loan and mortgaged the property by depositing the title deeds, copy of which is Exhibit A-3. In cross -examination this witness stated that the appellant took a loan of Rs. 75,000.00 in September, 1973. The appellant appeared as Aw 4. He deposes that he is the owner of the suit premises, that he had taken a loan from the Punjab and Sind Bank and the original title deed was with the Bank, certified copy of which is Exhibit A-3. He further says that he was residing at 21 Officers Hostel, Civil Lines, Meerut, temporarily and that the authorities have served notices on him to vacate the hostel accommodation and the copies of the said notices are Exhibits A-l and A-2. He further says that he has retired from Military Service and he has no other house anywhere for his residence. He says that he wants to reside himself in the property in dispute. As regards family, the appellant says that it consists of himself, his wife and two children aged ten and a half and nine and a quarter years. This statement was made by him on 18th July, '975. In cross-examination the appellant admits that he had taken a loan of Rs. 75.000.00 from the bank and the total amount payable is slightly more than Rs. One Lakh, that he had taken this loan with an idea to set up a factory near Hapur, that he did set up the factory which was not working. He admitted that in December, 1973, he had started the factory and it only worked for about three months and in fact he suffered a heavy loss in the factory and thereforee he has been trying to dispose of the factory so that he can clear off a part of the loan. He denied the suggestion in the cross-examination that he does not want to live in the suit premises or that he could not afford to live therein.

(9) On behalf of the respondent Shri V. Siriniwasan (RW-I) appeared who did not depose to any matter pertaining to the ground of eviction. Shri J. K. Patel, Manager of the respondent company, appeared as RW-2. He says that he has been working with the respondent company since 1951. He admits that the appellant has retired. He says that the appellant has a house in Rajouri Garden but particulars of this house are not mentioned by him. Other relevant statement of this witness is that the appellant wants to increase the rent and that there were terms for renewal of the lease agreement from time to time. He also says that the appellant does not intend to occupy the premises This is the oral evidence on record. Section 14(1)(a) 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 :- (c) that the premises let fot residential purposes are require 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 clause, 'Premises let turn residential purpose' 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' ;

(10) No order of eviction can be passed unless the landlord proves that he is the owner, that the premises were let for residential purposes, that he bona fide requires the said premises and that he has no other reasonably suitable residential accommodation. The ownership and the purpose of letting, as a matter of fact, are not denied in the written statement but, in any case, there is a registered lease deed, Exhibit R-1, dated 5th February, 1964 executed between the parties. This document shows that the appellant is admitted to be the owner and that the premises were let for the purpose of residence. As regards family of the appellant, it is not denied that his family consists of the appellant, his wife, one son and one daughter. The son is aged about 16 years while the daughter is aged about 15 years. This is in evidence that the appellant has no premises anywhere for his residence except the premises in suit. When the appellant was in witness box no question was put to him that he has any premises in Rajouri Garden, as deposed to by RW-2, Shri J. K. Patel.

(11) The Additional Rent Controller after appreciating the documentary and oral evidence on record concluded that the appellant was the owner of the suit property. There is also a lease deed of the plot, over which the property is situated, between the appellant and the President of India. After taking into consideration the entire evidence, documentary and oral on record, the reasonable conclusion is that the appellant is the owner of the premises in suit, that the premises were let for residential purposes, that he has no other premises for his residence in Delhi or anywhere else except the premises in suit and that his family consists of himself, his wife and his two children Under these circumstances, the irresistible conclusion is that the appellant bona fide requires the suit premises for his residence. Learned counsel for the respondent then argues that the appellant is indebted and that be cannot afford to occupy the premises. This is no ground. The appellant and his family requires a roof under which they may live. The appellant has deposed that he took the loan in 1973 with a view to establish a factory and that he has suffered loss in that factory and has decided to dispose of the factory in order to clear his debt. Under the circumstances, it cannot be said that the appellant has no intention to occupy the suit premises, specially when it is not in possession of any other premises at all. He has- retired from the Army Service, even after re-employment. There is no evidence to show that the appellant has no intention to occupy the promises it vacated by the respondent.

(12) The appeal, is thereforee, accepted setting the judgment and order of the Rent Control Tribunal. The order of eviction passed by the Rent Controller, vide judgment dated 11th February, 1976, under Section 14(l)(e) of the Act is restored. There will be no order as to costs.


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