ORDER Madan B. Lokur, J.
1. There is an adage to the effect that fools build houses for wise men to live in. This has almost come true in this case.
2. Sometime in 1983, the Appellant/landlady had filed an eviction petition seeking eviction of the Respondent/tenant on three grounds, namely, under clauses (e), (h) and (k) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act,1958 (hereinafter referred to as the Act.)
3. Insofar as the ground under clause (e) is concerned, the learned Additional Rent Controller came to the conclusion (in his order dated 13th September,1985) that no case was made out by the Appellant. This ground was not pressed further. Insofar as the ground under clause (k) is concerned, the learned Additional Rent controller came to the conclusion that the Respondent was in breach of the provisions of Clause (k) of the proviso to section 14(1) of the Act since the respondent was misusing the premises for commercial purposes, that is, for running a clinic. The Respondent did not challenge this finding but, on the question of payment of charges for regularising the misuser, the matter went upto the supreme court and in Dr. K. Madan. Vs. Krishnawanti (Smt.) & Ors. , the Supreme Court granted two months time to the Appellant therein to stop the misuser of the premises and to pay the misuser charges.
4. With regard to the ground under Clause (h) of the proviso to section 14(1) of he Act, the learned Additional Rent Controller came to the conclusion that the suit premises had been let out for residential purposes. The admitted position was that the Respondent had acquired vacant possession of a residential house in East of Kailash, New Delhi. Accordingly, the learned Additional Rent Controller in his order dated 13th September, 1985held that the Respondent was liable to be evicted under the provisions of clause(h) of the proviso to section 14(1) of the Act.
5. In appeal, the learned Rent Control Tribunal (hereinafter referred to as the tribunal) came to the conclusion (in its order dated 18th December, 1986) that there was a compromise deed between the parties on 29th October,1976 whereby the Respondent was allowed to use the premises for commercial purposes. The learned Tribunal came to the conclusion that although the premises were by nature residential, and were being used as such by the Respondent from sometime in1963 upto 1973/74, the same were used for commercial purposes thereafter. It was consequently held that since the Appellant permitted the user of the premises for the purposes of a clinic, she would not be entitled to seek eviction of the Respondent on the ground that the Respondent had acquired alternate residential accommodation. The learned Tribunal allowed the appeal filed by the Respondent and the order of eviction passed under clause(h) of the proviso to section 14(1) of the Act was set aside.
This order is impugned by the Appellant.
6. The limited question before me is whether the Respondent, having acquired her residential accommodation, can be evicted under the provisions of clause(h) of the proviso to section 14(1) of the Act. Clause (h) of the proviso of section 14(1) of the Act reads as follows:
"14. Protection of tenant against eviction -
(1) Not withstanding 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 favour 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 posession of the premises on one or more of the following grounds nly , namely:-
(a) to (g) xxx xxx xxx
(h) that the tenant has, whether before or after the commencement of this Act, acquired vacant possession of or been allotted, a residence;"
7. Learned counsel for the Appellant made his submissions on 21st Februry, 2000 when judgment was reserved. He submitted that certain facts are clearly not in dispute. These are that the Respondent became the tenant of the Appellant sometime in 1963. There was no written agreement between the parties and the rent receipts also did not indicate the purpose of letting. Admittedly, the Respondent was an employee with the Delhi Municipal corporation. She was using the suit premises for her residence till sometime in 1973-74. At around that time, the respondent built her own house in East of Kailash and shifted her residence there . She used the suit premises for commercial purposes, that is, for running a clinic. Whether she could do so or not is no longer the matter of dispute.
8. Way back in 1969 , the Supreme court held in S.Kartar Singh Vs. Chamanlal & Ors. the Report as follows:-
"......It is quite clear that section 14(1)(h) can apply only where a tenant is in occupation of a premises which is only residential; then alone he would have to go if he acquires or has residential accommodation of his own".
9. So far as the present case is concerned, there is no doubt that the suit premises were situated in a residential area and could be used only for residential purposes. As mentioned above, the Supreme Court had also directed the Respondent to stop the misuse of the premises. There can be no doubt, therefore, that the Respondent could not use the premises for any purpose other than residential. The fact that the Appellant permitted the Respondent to run her clinic from the premises is of no consequence at all. The real question is for what purpose can the suit premises be lawfully used. The answer to that is clearly "residential". If the premises are used for purposes other than residential, or partly for residential and partly for commercial purposes, it ould be contrary to law.
10. The admitted position is that the Respondent has acquired vacant possession of a residential house. Having done so, the Appellant is entitled to ask for the eviction of the Respondent on the ground specified in clause (h) of the proviso to section 14(1) of the Act. There is nothing on the record to suggest that the premises had been let out for residential-cum-commercial purposes as held by the learned Tribunal. Even if the premises were let out for residential-cum-commercial purposes, it would make no difference in view of the conclusion of the Supreme Court that the premises cannot be used for commercial purposes.
11. The material on record, nevertheless, seems to suggest that the premises were let out only for residential purposes. This is because the Re-spondent was an employee of the Delhi Municipal Corporation and could not, normally, have been entitled to set up a private practice. Moreover, the admitted position is that the Respondent was actually using the premises for residential purposes until 1973-74, and now, the Supreme Court has said that it cannot be used for commercial purposes.
12. In view of this, it appears to me that the learned Tribunal has misdirected itself in law by concluding that the premises were let out for residential-cum-commercial purposes only because the Appellant did not object to the use of the premises for commercial purposes from sometime in 1973/74 till sometime in 1978 when she served a notice on the Respondent calling upon the Respondent to refrain from misusing the premises. The conclusion arrived at by the learned Tribunal that the Respondent was not liable to be evicted under clause(h) of the proviso to section 14 of the Act was, therefore, erroneous. Needless to say, the Learned Tribunal did not have the benefit of the wisdom of the Supreme Court and it is , perhaps, for this reason that it fell into error.
13. Under the circumstances, I am of the view that the order dated 18th December, 1986 passed by the learned Tribunal is liable to be set aside insofar as it pertains to clause(h) of the proviso to section 14(1) of the Act and the order dated 13th September ,1985 passed by the learned Additional Rent Controller to this extent ought to be upheld.
14. Accordingly , the appeal is allowed. There will, however, be no order as to costs.
15. Since the Respondent is not represented in this Court, I am of the view that the warrants of possession should be executed only after notice to the Respondent who should be given reasonable time to vacate the suit premises.