* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 1016/2012
% 26th September , 2014
M L HANS ......Petitioner
Through: Mr. Gaurav Seth, Advocate
VERSUS
KIRAN DEVI ...... Respondent
Through: Mr. S.P. Gairola, Advocate with
respondent in person.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. This petition under Article 227 of the Constitution of India impugns the judgments which have been passed by the courts below; the Additional Rent Controller dated 6.3.2012 and the Rent Control Tribunal dated 14.8.2012; by which the eviction petition filed by the petitioner/landlord on the grounds of non-payment of rent under Section 14(1)(a) of the Delhi Rent Control Act, 1958 (hereinafter "the Act") and the respondent/tenant having CM(M) 1016/2012 Page 1 of 7 obtained alternative premises under Section 14(1)(h) of the Act, has been dismissed.
2. The eviction petition under Section 14(1)(a) of the Act has been dismissed on the ground that the notice which is required to be served by the petitioner/landlord upon the respondent/tenant, and which is the notice dated 8.3.2007 in this case, was not served. To arrive at this conclusion, the courts below have referred to the admission in the cross-examination of the petitioner/landlord that he did not send any notice.
3. The aforesaid findings and conclusions of both the courts below are grossly perverse and are findings which findings no reasonable person would have arrived at because in the written statement in para 18 the respondent/tenant specifically admitted receipt of the service of the notice, and only pleaded that she paid the due rent and that the petitioner/landlord told her to forget about the notice. This admission of the receipt of the notice is stated in the following words in para 18 of the written statement of the respondent/tenant :
".............So far as the service of notice is concerned, it is not denied that the notice was served upon the respondent, but it is absolutely wrong to state that no attempt was made to tender or pay the rent or the alleged legally recoverable arrears of rent, to the petitioner. ......"CM(M) 1016/2012 Page 2 of 7
4. Admissions in pleadings can themselves be the basis of disposal of a suit and admissions in pleadings are on a higher pedestal then evidentiary admissions vide Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram & Ors., AIR 1974 SC 471. Merely because in cross-examination the petitioner in confusion denied sending of the notice will not mean that the pleading with respect to sending of the same and pleading of respondent of receiving the same will be wiped away.
5. In view of the above, the findings and conclusions of the courts below that the eviction petition under Section 14(1)(a) of the Act has to be dismissed for non-service of the notice dated 08.3.2007 are wholly illegal and perverse and are accordingly set aside. Since the respondent/tenant has failed to prove and not filed any proof with respect to payment of rent within a period of two months or its deposit under Section 27 of the Act, therefore, the eviction petition under Section 14(1)(a) of the Act is decreed. Since the default in payment of rent is a first default, respondent/tenant will be entitled to the benefit of Section 14(2) of the Act if the respondent tenant has complied with the order of the deposit of rent passed under Section 15(1) of the Act. In order to decide the aspect of the benefit of Section 14(2) of the Act to be given to the respondent/tenant by determining whether the order CM(M) 1016/2012 Page 3 of 7 under Section 15(1) of the Act has been complied with or not, let the matter be listed before the Rent Controller, East District, Karkardooma Courts, Delhi and the Rent Controller will decide the aspect of Section 14(2) of the Act himself or will mark the petition for further proceedings to an Additional Rent Controller.
6. The second ground on which eviction was prayed for was that the respondent/tenant has acquired vacant possession of alternative premises to the tenanted premises and thus the eviction petition be decreed under Section 14(1)(h) of the Act. So far as this ground of Section 14(1)(h) of the Act is concerned, the only defence of the respondent/tenant was that the suit/tenanted premises were let out not for residential purposes but for commercial purposes, and consequently the ground under Section 14(1)(h) is not available. In law, a petition under Section 14(1)(h) of the Act lies only if letting is for residential purpose and if the letting is not for residential purpose Section 14(1)(h) of the Act cannot be invoked. In order to determine the purpose of letting, obviously the best evidence is of a rent deed or a rent receipt mentioning the letting purpose, however, there is no documentary evidence led by either of the parties in this case with respect to the purpose of letting. In law, once there is no documentary evidence with CM(M) 1016/2012 Page 4 of 7 respect to the purpose of letting, courts have to determine the letting purpose on the basis of the nature of the premises and use to which the suit/tenanted premises have been put to.
7. In the present case, the tenancy is of one room. The issue is whether letting out was for a residential purpose only or not. In my opinion, the premises were let out only for residential purpose and this becomes clear from the following portion of the cross-examination of the respondent/tenant:
"I do not know as to what is Ex. R-1. I am illiterate. Ex. R-1 is in respect to the report lodged by me for the loss of my articles. No child of mine got birth at the address B-125A, West Azad Nagar, Delhi. I am having five daughters and one son. I am not in position to show birth certificate in regard to any of my six children. I am having an election I. Card and also I can show copy of ration card. Election I. Card and ration card pertain to B-125A, West Azad Nagar, Delhi. I am residing in Delhi from past 32 years. Apart from the address B-125A, West Azad Nagar, Delhi, I cannot show any document of my residence of any other address. Vol. I had resided in the house of my maternal aunt and I cannot show any document regarding the residence over there also. It is correct that all documents of my identity and of my children are of B-125A, West Azad Nagar, Delhi."
".........House no. 2/560, Sunder Nagari, Delhi was owned by me and I have sold the same. I purchased the same 15-16 years back and I have sold the same 4 years back. I have seen the document Mark A. It is correct that thumb impression on the document Mark A was put by me and now Mark A is now Ex. RW1/P2. Property bearing no. 32-A/6, Gali no. 3, East Azad CM(M) 1016/2012 Page 5 of 7 Nagar, Delhi is owned by me. I have purchased the aforesaid property 12-13 years back. It is correct hat I do not have any identity document pertaining to myself or my children showing residential address 32-A/6, Gali no. 3, East Azad Nagar, Delhi as my residential address ever since I came to Delhi is B-125A, West Azad Nagar, Delhi-51. Property bearing no. 32-A/6, Gali no. 3, East Azad Nagar, Delhi is 22 sq. yards two storey built up property. I am residing in this property from past 10-12 years. Vol. this property was got purchased by my father in law in my name. ......"
(emphasis added)
8. A reading of the aforesaid admission made in the cross-examination by the respondent/tenant clearly shows that the respondent/tenant has acquired not one but two alternative premises at Sunder Nagari as also at East Azad Nagar. The respondent/tenant also admits that her election identity card and ration card pertain to the suit premises bearing no. B-125A, West Azad Nagar, Delhi and that her residential address is of the suit premises B-125 A. Also it is clear from the aforesaid portion of the cross-
examination of the respondent/tenant that she has no proof of showing her residence or the residence of her children being five daughters and one son from any other property. Clearly, therefore, the premises were let out to the respondent/tenant only for a residential purpose. Accordingly, in my opinion, considering the nature and use of the property, the premises being situated in a residential area and not in a commercial market, it is clear that the letting purpose was residential, and the courts below have clearly CM(M) 1016/2012 Page 6 of 7 committed an illegality and perversity in holding that the purpose of letting was not residential and hence it calls for exercise of powers by this Court under Article 227 of the Constitution of India.
9. In view of the above, this petition is allowed and eviction is ordered of the respondent/tenant from the tenanted premises comprising of one room on the ground floor of property no. B-125A, West Azad Nagar, Krishna Nagar Delhi and which is shown in red in the site plan Ex.PW1/1 attached to the eviction petition.
10. Petition is allowed and disposed of accordingly, leaving the parties to bear their own costs. As stated above, the parties to appear before the Rent Controller, East District, Karkardooma Courts, Delhi on 31.10.2014 for further proceedings with respect to the eviction sought under Section 14(1)(a) of the Act.
SEPTEMBER 26, 2014 VALMIKI J. MEHTA, J
godara
CM(M) 1016/2012 Page 7 of 7