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Parduman Kumar Sehgal Vs. Gulshan Malhotra - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 330 of 1983
Judge
Reported inAIR1986Delhi23; 27(1985)DLT399; 1985(8)DRJ173
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantParduman Kumar Sehgal
RespondentGulshan Malhotra
Advocates: P.M. Lekhi,; Maninder Singh and; R.N. Chawla, Advs
Cases ReferredSushil Chander Gupta v. Radha Krishan Bathisa
Excerpt:
.....of of rent, it cannot be stated that the tenant is in occupation but coupled with the state of affairs which i have noticed and the findings of the learned tribunal, it cannot be said that the tenant is not residing in premises in dispute for a period of six months immediately before the filing of the application for eviction......grounds contained in clauses (d) and (h) to the proviso to sub-section (1) of section 14 of the delhi rent control act, 1958 (hereinafter referred to 'the act'). (3) the case of the appellant was that neither the respondent-tenant nor any members of her family are residing in the premises in dispute six months before the filing of the eviction application. the second ground of eviction was that the tenant has acquired vacant possession for residential accommodation in house no. h-3,n d.s.e. parti, new delhi. (4) the learned rent controller, delhi held that the grounds contained in aforesaid clause (h) have not been proved and on that finding dismissed the eviction petition on that ground. learned trial court, however, held that the landlord has been able to prove that neither the.....
Judgment:

Yogeshwar Dayal, J.

(1) This second appeal on behalf of Shri Parduman Kumar Sehgal, hereinafter referred to as the landlord, is directed against the order of learned Rent Control Tribunal dated 3rd September, 1983 whereby learned Rent Control Tribunal accepted the appeal filed on behalf of the respondent. Smt. Gulshan Malhotra and dismissed the eviction petition filed on behalf of the landlord.

(2) It appears that the landlord has filed a petition for eviction against the respondent on the grounds contained in Clauses (d) and (h) to the proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred to 'the Act').

(3) The case of the appellant was that neither the respondent-tenant nor any members of her family are residing in the premises in dispute six months before the filing of the eviction application. The second ground of eviction was that the tenant has acquired vacant possession for residential accommodation in House No. H-3,N D.S.E. Parti, New Delhi.

(4) The learned Rent Controller, Delhi held that the grounds contained in aforesaid Clause (h) have not been proved and on that finding dismissed the eviction petition on that ground. Learned Trial Court, however, held that the landlord has been able to prove that neither the respondent nor any member of her family has been residing in the premises in question for the period of six months before the filing of the eviction petition and consequently passed an order of eviction under the aforesaid Clause (d) of the Act.

(5) The respondent went up in appeal. The learned Rent Control Tribunal reversed the findings of the trial court and held that the respondent and her family have been residing in the premises within six months immediately before the institution of the proceedings for eviction.

(6) Before the trial court, the case of the respondent was that the appellant and the respondent both were tenants in the property but the appellant purchased the property and after purchasing the property, the appellant has been threatening the respondent and her family to get vacated the premises by hook or crook; that the respondent and her husband were obstructed from the lawful and peaceful use of the premises by the appellant and his brothers; that the obstruction in the lawful and peaceful use was created sometime by closing the door of entrance, sometimes by parking jeep and sometimes by closing the staircase gate so that the respondent and her family members may not be able to enter the tenanted premises for their living purpose; that the respondent and her family members even were threatened to be killed by the landlord and his brothers due to which the respondent's husband filed number of complaints with the police; that a case under Section 341 Indian Penal Code for causing obstructions to the respondent and her family members from going to the tenanted premises was also registered against the appellant vide Fir No 638 of 1980 at Police Station defense Colony, New Delhi; that the respondent's husband also filed a regular complaint under Section 147 Code of Criminal Procedure for issuance of directions by the S.D.M. to the appellant and his brothers for removal of obstructions and stoppage of interference; that the petition was filed on 4th November, 1980 and is presently pending in the court of Shri R. Chandra Mohan, Sub Divisional Magistrate, Delhi; that the appellant even after filing the complaint did not restrain himself from causing obstruction and extending threats of killing the entire family due to which the respondent's husband lodged a complaint with the police station, defense Colony, New Delhi upon which the appellant and his brothers were arrested under Section 107/151 Code of Criminal Procedure by the police of defense Colony police station and proceedings were drawn against them by the A.C.P.; that the appellant willfully and with a view to force vacation of the house by the respondent and her family had to seek shelter in the house of some relation during the night times; that the respondent used to come Along with her family during the day time because all her belongings etc. have been lying in the tenanted premises; that appellant even cut off the water and electricity regarding which the respondent filed a petition under Section 15 of the Delhi Rent Control Act in which interim orders for restoration of electricity and water were passed against the appellant by the court of Sh. Kuldip Singh, Additional Rent Controller, Delhi vide order dated 25th February, 1981.

(7) It was further case of the respondent that the petition for eviction was mala fide for the reason that the appellant is bent upon creating trouble to force eviction; that the respondent was threatened for forcible eviction to the extent that she had to file a suit for perpetual injunction against the appellant and others which is pending in the court of Shri S.M. Gupta, subordinate Judge 1st Class, Delhi, in which landlord and others have been restrained from evicting the tenant-respondent from the tenanted premises.

(8) Learned trial court took the view that admittedly the respondent is not spending nights in the premises in dispute and is living in the premises only in day times and thereforee, the respondent cannot be said to be residing in the premises. Learned trial court also gave a finding that it is not possible to hold that the landlord was responsible for the absence of electricity and water supply in the premises in question. In view of these findings, the learned trial court held that the ground of eviction as contained in aforesaid clause (d) is established but also gave a finding that it is not established that the respondent has acquired vacant possession of residential accommodation. With the aforesaid findings under clause (d) aforesaid, the learned Rent Controller passed an order for eviction.

(9) When the respondent took the matter in appeal, learned Rent Control Tribunal after considering the entire evidence on record took the view that the matter for restoration of water and electricity is pending before the court of Shri O.P.Gogne, Additional Rent Controller, Delhi and it will not be fair to pass any remarks to prejudice either party in those proceedings, However, learned Rent Control Tribunal gave a finding :

'IN the present case, when appellant is prevented by the respondent from residing in the property permanently the necessary consequences would be that the appellant should be taken to be in occupation and residing therein. I hold that the appellant has been prevented from living in the property for the reason that admittedly the appellant is paying the rent of the suit premises. If appellant was not residing then I fail to understand as to why the rent would be paid. No person would like to put himself at loss continuously and still occupying the premises where he has nothing to do.'

Learned Rent Control Tribunal also found :

'I am not surprised that the appellant afraid of the breach of the peace is not in occupation of the property during all 24 hours. This is not a voluntary act of the appellant and she is deemed to be thus in occupation. I believe their version and evidence that during day time they stay go in the property and in this process, hold that they are residing therein.'

Learned Rent Control Tribunal also disbelieved Om Parkash Gupta AW-2 and Jagdish Chander AW-3 who had given statements that the respondent is not occupying the property for the past two or two and a quarter years.

(10) Clause (d) to the proviso to sub-section (1) of Section 14 of the Act at this stage is re-produced :

'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 attendant; Provided that the Controller may, on an application made to him...........make an order for the recovery of possession of the premises on one or more of the following grounds only, namely : (a)...............(b)...............(e)............... (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.'

Mr. P.N. Lekhi, learned counsel for the appellant-landlord submitted that the finding of both the courts below is that the respondent is living in the premises only during day time and is not living during night time and, thereforee, the respondent cannot be said to be residing in the premises in dispute within the meaning of expression used in the aforesaid clause (d).

(11) It will be noticed that the learned Tribunal has given another finding that it is due to act and conduct of the appellant that the respondent is not occupying the property for 24 hours and this act is not voluntary act of the appellant but is due to the respondent being afraid of the breach of the peace on behalf of the appellant that the respondent is forced to live elsewhere during night times. Clause (d) of the aforesaid proviso is not such a ground for eviction of attendant which can be stated to have been created in public interest. When a ground of eviction is created in public interest, view has been taken that there is no estopple against statute. (See : Faquir Chand v. Ram Rattan Bhanot : [1973]3SCR454 ) But here the ground is created for the benefit of landlord so that premises which are not occupied by tenant for six months immediately before the filing of the application for recovery of possession a right accrues to the landlord to claim eviction but where the landlord himself creates situation which force the tenant not to live in the disputed premises for particular length of time such a landlord cannot be permitted to take advantage of his own wrong and will be estopped from filing a petition for eviction relying on aforesaid clause (d).

(12) Even otherwise the submission of learned counsel for the appellant is not supported on true and correct interpretation of clause (d). The relevant expression used in the clause is, 'residing'.

(13) Mr. Lekhi, learned counsel for the appellant brought to my notice definition of the word, 'Reside' in the Webster's Third New International Dictionary, Volume Ii page 1931 as meaning, 'to settle oneself or a thing in a place :.........to dwell permanently or continuously : have a settled abode for a time.........to have an abiding place'.

(14) He also referred to a decision of Falshaw, J. in the case of Smt. Shakuntla Bawa v. Ram Parshad and others, -Vol. LXV-(1963) P.L.R. This case related to the provisions of Section 13(2)(v) of the East Punjab Urban Rent Restriction Act (III of 1949), which reads as under :-

'THAT where the building is situated in a place other than a hill station, the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause.'

It will be noticed that from the facts of that case the finding was that the tenant has ceased to reside after the death of her husband in the premises in dispute situate at Hissar and had gone to Delhi where her husband's brother and her married daughter and two un-married daughters were receiving education and she would be visiting Hissar occasionally but never even spent night there. It was in these circumstances Falshaw, J. took the view that:

'for all practical purpose the tenant had ceased to reside in the house in dispute and had gone to reside at Delhi, only visiting Hissar very occasionally for short period and even then not using the house in the sense of sleeping there'.

Falshaw, J. also took the view that :

'THE mere presence of the furniture and willingness to pay rent does not constitute occupation within the meaning of Section 13(2)(v) of the East Punjab Urban Rent Restriction Act.'

It will be noticed that in the present case the tenant and her family throughout lived day and night in the premises in dispute but for about two years, the landlord had created such a situation that she would stay in the house every day throughout the day and but for her own safety and safety of her family members she would spend nights in neighbours house. Can it be said that in such circumstances, it was mere presence of her furniture and willingness to pay rent only I should think not. There may be a case where by exigencies of one's service or business, a tenant may be spending merely day time in his house and working at night elsewhere. But would it then be possible for the court to say that he was not residing in his house. I think the expression, 'reside' means where normal abode of the person is. Surely in view of the findings of both the courts that the tenant has not acquired any other residence then the disputed premises continuous to be her residence

(15) Avadh Behari Rohatgi, J. in the, case of Sushil Chander Gupta v. Radha Krishan Bathisa : AIR1980Delhi110 held :

'THAT residence is a state of things'.

Can we say that in the state of things, in. the present case, the tenant can be said to be not residing merely because she is forced not to sleep in her house at night. On the facts and circumstances of the case, I am satisfied that it cannot be a case of non-residence' as contemplated by aforesaid clause (d). It is true that merely by payment of of rent, it cannot be stated that the tenant is in occupation but coupled with the state of affairs which I have noticed and the findings of the learned Tribunal, it cannot be said that the tenant is not residing in premises in dispute for a period of six months immediately before the filing of the application for eviction. The result is that the appeal fails and is dismissed.


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