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P.C. Khanna Vs. K.K. Sharma - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 5 of 1981
Judge
Reported in1982(3)DRJ77
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantP.C. Khanna
RespondentK.K. Sharma
Advocates: U.L. Watwani and; J.K. Seth, Advs
Cases ReferredKrishan Kumar v. R. C. Dhingra
Excerpt:
.....fide that leave has to be granted.; in the face of the written documents it is not open to the tenant to contend that the premises were not let for residential purposes.; that the purpose of lease (nature of tenant's possession) being only collateral matter unregistered lease deed can be seen for ascertaining it. - - niranjan saroop, 1980 rlr 57. this being so it is open to refer to the document which clearly shows that the purpose of letting was residential. it is now well established that it is only if the dispute is bona fide that the leave has to be granted. the agreement dated 27th june, 1977 is clearly admitted. in the plan the portion of the house which has been let to the tenant has clearly demarcated. the landlord has clearly stated in the application for eviction that..........been granted. (6) in respect to the application for leave to contest the landlord relied upon a rent agreement dated 7th june, 1977 executed between the parties. in this rent agreement it was. inter alia, stated that the tenancy had commenced from 5th june, 1977 for a period of ii months. it was stated that as the courts were closed at that time an application under section 21 will be filed when the courts re-opened. it was further specifically provided in the agreement that 'the tenant has taken the said kothi for his residence and......will not misuse the same............'. the extent and the nature of the premises which were let was also indicated in this agreement. in the face of the written document it is not open to the tenant to contend that the premises were not let for.....
Judgment:

B.N. Kirpal, J.

(1) This is a revision petition filed by the petitioner- tenant against the order dated 4th October, 1980 whereby the Rent Controller, Delhi, in case No 463/80 on an eviction petition filed by the respondent-landlord, did not grant the tenant leave to contest and ordered his eviction.

(2) On 5th June, 1977 House No. B - 11/37, Janak Puri, New Delhi, except one bed room and one store room which is in the possession of the landlord, was let to the tenant. According to the landlord he was working in the Delhi Cloth Mills and he was transferred from Delhi to Mawana Sugar Works, Mawana as Chief Chemist. With effect from 16th June, 1980 he has been transferred back to Delhi and as such he requires the premises for his own residence and for residence of members of his family. As the tenant did not vacate the premises an application under section 14(l)(e) read with section 25B was filed.

(3) The tenant filed affidavit for leave to contest the eviction petition. One of the main grounds raised by the tenant was that the premises in question had been let to him for residential-cum-commercial purposes. It was alleged that the wife of the tenant was running a school and the premises had been let for that purpose also. It was also contended that there were some proceedings under the Rent Control Act which had been instituted previously and the premises which were described in the present application for eviction were different from what were described earlier. It was also contended that the landlord wanted to increase the rent and, furthermore, the landlord had not disclosed that he had no other reasonably suitable accommodation with him. According to the tenant the landlord had a big house at Prem Nagar where he could reside.

(4) By order dated 4th October, 1980, as already noticed, the Rent Controller came to the conclusion that the leave application of the respondent was a 'damp squib'. This order has been challenged before me in the present petition filed under section 25B(8) of the Act.

(5) The first ground on which the order of the trial court is impugned by Mr. Watwani is that the premises had been let for residential-cum-commercial purposes and this was a triable issue and as such leave ought to have been granted.

(6) In respect to the application for leave to contest the landlord relied upon a rent agreement dated 7th June, 1977 executed between the parties. In this rent agreement it was. inter alia, stated that the tenancy had commenced from 5th June, 1977 for a period of Ii months. It was stated that as the courts were closed at that time an application under section 21 will be filed when the courts re-opened. It was further specifically provided in the agreement that 'the tenant has taken the said Kothi for his residence and......will not misuse the same............'. The extent and the nature of the premises which were let was also indicated in this agreement. In the face of the written document it is not open to the tenant to contend that the premises were not let for residential purposes. According to the tenant he should be permitted to lead evidence to show that in fact the premises were let for residential-cum-commercial purposes. To my mind the provisions of section 91 and 92 of the Evidence Act disentitle him to lead such evidence. In order to get over this hurdle Mr. Watwani referred to Tvagaraja Mudalivar and another v. Vedathanni, , and Sukumar Bysack v. Sushil Kanta Banerjee, : AIR1972Cal207 . Tvagaraja's case it was held that under section 91 and 92 oral evidence is excluded as to the terms of the written agreement but oral evidence was admissible to show that a document executed by a person was never intended to operate as an agreement but was brought into existence solely for the purpose of creating evidence about some other matter. That obviously is not the case here. The fact that this document was entered into is admitted by the tenant in the rejoinder. The fact that the premises were let out at the rent specified in the agreement is also admitted. The only term which is sought to be disputed by the tenant is the one with regard to the letting purpose. thereforee, the evidence which would have to be led, if leave was granted, would have to be with regard as to whether the premises were let for residential purposes, as stated in the rent agreement, or for residence-cum-couimercial purposes, as alleged by the tenant. Even as per the Privy Council decision section 91 excludes oral evidence as to the terms of a written agreement. thereforee, the tenant v,'ould not be entitled in law to lead any evidence as to the terms of the said contract. The decision of the Calcutta High Court is also of no help to the tenant. In that case the question which arose was as to whether oral evidence should be led in order to show the real nature of the transaction. The question there was as to whether a document referred to in the agreement for sale of land was in fact a transaction for loan or not. That is not the case here. The nature of the document is not in question.

(7) It was then contended that the rent agreement was an unregistered document. This may be so. It has, however, been held by this Court in J.N. Banerjee v. Sohan Lol Bhargava, : AIR1971Delhi243 that the purpose of lease (nature of tenant's possession) being only a collateral matter, umegistered lease deed can be seen for ascertaining it. The provisions of the proviso to section 49 of the Registration Act were invoked in that case. This decision has been followed by this Court in Pravin S. Shah v. Govind K. Sharma cic. 1974 RLR 128 and Bharal Scroop v. Niranjan Saroop, 1980 RLR 57. This being so it is open to refer to the document which clearly shows that the purpose of letting was residential.

(8) Another thing which weighed with the Rent Controller was that the tenant himself is an employee of the Indian Airlines. The school is stated to have been started and is being run by his wife. The Rent Controller observed, and possibly rightly, that the wife did not take the premises on rent and nor has she the status of a tenant, and any user by the wife of the tenant for a purpose other than the one agreed to by the tenant cannot convert the purpose of letting into residential-cum-non-residential.

(9) Reference in the pleadings has also been made to an earlier petition which had been filed under section 14(l)(k) by the landlord. On a query raised by me Mr. Watwani informed me that prior to the filing of such an application on 22nd September, 1977, in July, 1977, an application under section 21 of the Rent Control Act was filed. This application was filed jointly by both the tenant and the landlord. Now it is not disputed that an application under section 21 can be filed only with respect to a residedtial accommodation. The tenant himself admittedly affixed the signatures to such an application. It does not, to fmy mind, lie in his mouth to now contend that the premises were let to him or commercial-cum-residential purposes. That application, of course, was dismissed because the tenant did not appear when summons were issued. That, however, does not detract from the fact that initially the tenant did sign such an application. This factor is one which can be taken into account in considering whether I should exercise my revisional jurisdiction under sub-section (8) of Section 25B. To my mind the conduct of the tenant cannot be regarded as such which should entitle him to any relief.

(10) It was next contended by Mr. Watwani, while relying on Kalyan Singh v. J. P. Gupta. 1977 R.L.R. 242. Smt. Bejoli Roy v. Amar Kumar etc., 1977 R.L.R. 464, R. C. Jain v. S. K. Gupta etc., 1979 R.L.R. 560, Krishan Kumar v. R. C. Dhingra, 1980 R.L.R. 472, that when there are disputed questions of fact leave has to be granted. It is now well established that it is only if the dispute is bona fide that the leave has to be granted. Further, if on the fact of it the answer is obvious then the question of granting the leave would not arise. As already observed, in view of the existence of the rent agreement it cannot legitimately be contended by the tenant that the premises were let for purposes other than residential. This being so it cannot be said that any bona fide dispute was raised in the application.

(11) It was also contended that particulars in para 14 of the application for eviction had not been properly given, In para 14 reference is made to the date when the premises were let. No details of any agreement between the landlord and the tenant were indicated. Even if this omission was there it does not mean that the petition has to be dismissed. It is not as if the existence of the execution of the agreement is denied. The agreement dated 27th June, 1977 is clearly admitted. This being so the non-mentioning of this agreement in paragraph 14 of the eviction application is of no consequence.

(12) It is next contended that in paragraph 8 of the application the details of the premises which are let do not tally with the details given in an earlier petition filed under section 14(l)(k). This is of no consequence. The premises, described in paragraph 8 have to be seen along with the plan of the house which has been filed. In the plan the portion of the house which has been let to the tenant has clearly demarcated. It has not been averred in the application for leave to contest that the eviction petition is being filed in respect of only part of the tenanted premises. Mere fact that there is some discrepancy in the two eviction petitions which have been filed is, as I have already stated, of no consequence.

(13) It was lastly contended before me that the landlord has not indicated as to how many family members he has. To my mind that is not material in the present case. The landlord has clearly stated in the application for eviction that the premises are bona fide required by him for his own residence and for members of his family dependant upon him. He has also stated that he has no other reasonably suitable accommodation in the Union Territory of Delhi. In the affidavit for leave to contest the tenant has stated that the landlord has premises at Prem Nagar. Admittedly this house at Prem Nagar belongs to the landlord's father. Moreover in the reply to the affidavit the landlord has indicated that his family consists of himself, his wife and two children. Admittedly the landlord has only one room in the house in question. For a man of his status, whatever be the strength of his family, that one room cannot be regarded as sufficient.

(14) For the aforesaid reasons there is no merit in this petition. The same is dismissed with costs.


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