Salek Chand Jain vs Vinesh Chand Seth
1985 Latest Caselaw 461 Del

JUDGMENT

G.C. Jain, J.

1. This is a second appeal by the landlord from the order of the Rent Control Tribunal dated December 24, 1981. The tenant has (sic) filed cross-objections (C.M. No. 1547 of 1982). This order shall disposed the appeal as well as the cross-objections.

2. The dispute is in respect of premises comprising of two room kitchen, bath and latrine and a store on the first floor of House No. 5-A(sic) Ansari Road, Darya Ganj, Delhi. The tenant took the same on rent in the year 1958. The agreed rent was Rs. 100/- per month according to the tenant and Rs. 110/- per month according to the landlord. It was after on increased to Rs. 115/- per month.

3. On August 7, 1976 the landlord brought a petition for the recovery of possession of the said premises on the grounds of sub-letting, miss-user and personal bonafide requirement, i.e. under Clauses (b), (c) and (e) of the proviso to Sub Section (1) of Section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred to as `the Act'). The tenant resisted the petition.

4. Learned Additional Controller by his order dated January 31, 1978 held that the tenant had not sublet, assigned or otherwise parted with the possession of the whole or any part of the premises in dispute; the promises had been let out for residential purposes and the tenant had used the same for residential-cum-commercial purposes; and that the landlord was the owner of the premises in dispute and bonafide required the same for occupation as residence for himself and members of his family and had no other reasonably suitable accommodation. With these findings he granted an order for recovery of possession o the premises in dispute under Clauses (c) and (e) of the proviso to Sub-section (1) of Section 14 of the Act. The claim under Clause (b) was disallowed.

5. The tenant filed an appeal before the Rent Control Tribunal. In these proceedings he made an application for permission to lead additional evidence. It was partly allowed. Learned Tribunal recorded the additional evidence himself. On appraising the evidence and the contentions of the patties he held that the tenant had not sublet, assigned or otherwise prated with the possession of the premises in dispute; the misuser, even if the letting purpose was held to be residential, was not of such a nature that it was a public nuisance, or caused damage to the premises or was otherwise detrimental to the interest of the landlord; the landlord was the owner of the premises and bonafide required the same for occupation as residence for himself and members of his family and had no other reasonably suitable accommodation, but the premises had been let out for residential-cum-commercial purposes. With these findings he allowed the appeal, set aside the order of the Additional Controller and instead dismissed the application of the landlord.

6. Feeling aggrieved the landlord has filed the present appeal. The tenant has filed cross-objections as observed above.

7. Mr. Mukhoti, learned counsel for the landlord, has confined the claim for eviction under Clause (e) i.e. on the ground of personal bonafide requirement only. To succeed the landlord was required to prove (a) that he was the owner of the premises in dispute; (b) that the premises had been let out for residential purpose: (c) that he bonafide required the same for occupation as a residence for himself and members of his family dependent on him or for any person for whose benefit the premises were held: and (d) that the landlord or such other person had no other reasonably suitable accommodation.

8. Learned Additional Controller relying on the sale deed dated January 16, 1956 held that the landlord was the owner of the premises in dispute. Correctness of this findings was neither disputed before the Tribunal nor before me.

9. Mr. Andley, learned counsel appearing for the tenant, has assailed the finding of the learned Tribunal regarding the bonafide requirement and non-availability of a reasonably suitable accommodation. It was contended that the landlord was in possession of six regular rooms beside a barsati and this accommodation was reasonably suitable for him and his family members.

10. The case set up by the landlord in his eviction petition was that he required accommodation for himself and his wife; on married son, son's wife and their one child; one unmarried son, aged about 20 years ; two unmarried daughters and one grand daughter (daughter's daughter). It was also alleged that his two married daughters also often came and lived with him. The correctness of these facts was not disputed. The Additional Rent Controller was, therefore, fully justified in holding that the landlord required accommodation for all the above mentioned members of his family. Learned Tribunal, rightly, affirmed this finding.

11. However, subsequent events have taken place. He wife of the landlord has since died. One of his two unmarried daughters has since been married. On the other hand, the unmarried so has also been married. The first son admittedly has three children aged about 10, 7 and 5 years. The other son has two children aged about 5 and 2 years. The landlord, therefore, now required accommodation for himself, his son, son's wife and heir three children, the other son, son's wife and their tow children; one unmarried daughter and one grand daughter. Besides he required accommodation for the use of his married daughters whenever they visited him.

12. The landlord was admittedly I possession of three flats, one on first floor and two on the second floor besides a barsati on the terrace. Each flat consists of two rooms, one kitchen, bathroom etc. Thus the landlord was in possession of 6 regular rooms and a barasati. An examination of the plan reveals that out of six rooms in the three flats, three rooms measured about 15x10 feet and he remaining three about 10x10 feet. The tenant has admitted in his statement that the barsati was being used for storing goods.

13. It was not disputed that the landlord required one room for use as drawing room, one for dining room, one bed room for himself and one for his unmarried daughter and grand daughter. The dispute is about the requirement of his married sons. According to the landlord his married sons required two rooms each. Mr. Andley, learned counsel for the tenant, on the other hand contended that the married sons could be reasonably accommodated in one room each.

14. The claim of the landlord to provide two rooms to each of his married sons. In my considered opinion, is neither whimsical nor fanciful. First son has three children aged 10, 7 and 5 years. The other son has two children aged about 4 and 2 years. It is a growing family. It may not be possible to place 5 or 4 cot in one room after leaving some space for passage and for keeping other articles which are usually kept in a bed room. Moreover the sons must have privacy. At the time when tenant appeared as his own witness, only one of the sons was married. He admitted that the said son was living independently of his father in portion marked `D'. This portion consisted of two rooms besides bath and kitchen. This admission supports the contention of the landlord about the requirement of his married sons. The landlord and his sons, in my judgment, are entitled to a reasonably comfortable living. Their minimum requirement was of eight rooms. Accommodation consisting of six rooms and a barsati could not, therefore, be considered reasonably suitable for the landlord and all the members of this family even if the requirement of the married daughters was altogether ignored.

15. It was argued by Mr. Andley that the shortage of accommodation had been brought about by the landlord himself by using a portion of the property in his occupation for his business which he was running under the names and style of M/s. Hitashi Publishers and Salek Chand Vinod Kumar. There is no evidence on the record to prove that the landlord was using any portion of the property in dispute for commercial activity. When he appeared before the Tribunal he specifically stated in cross-examination that he was not carrying on any business on the second floor of the property. All what was stated by the landlord in reply to the application moved by the tenant for additional evidence was that no business was carried in this premises but he had used his residential address for registration for central and local sales tax purposes. This admission is of no consequence.

16. There is no evidence to suggest that the need was not genuine or that the landlord was motivated by extraneous considerations. The finding of the Courts below that the landlord bonafide required the premises in dispute for occupation for himself and members of his family and had no other reasonably suitable accommodation was correct and is affirmed.

17. The main dispute between the parties is regarding he purpose of letting. According t the landlord the premises in dispute had been out for residence. The tenant's plea was that the same were let out for residence-cum-commercial purpose and were being used as such.

18. Letting purpose, like any other fact, could be proved by the documentary and/or oral evidence. In the absence of convincing evidence to prove the letting purpose it has to be inferred from the physical nature of the premises area where the premises are situated, actual user and other relevant surrounding circumstances. These circumstances however, would be no help if there is cogent satisfactory and sufficient documentary and/or oral evidence to prove the agreed term regarding the user.

19. In the present case, admittedly, no lease deed or rent note was executed. Landlord, however, has produced oral as well as other documentary evidence, namely, the counter-foils of rent receipts. He and his witness R.S. Gupta, who claimed to be present at the time of the settlement of the tenancy terms, deposed that the premises had been let out for residence. Reliance was also placed on the counter foils of rent receipts for the months of August-September, 1972 (Ex. AW 1/133) October to December 1972 (Ex. AW 1/134), October to December 1973 (Ex. AW 1/135) and August and September 1975 (Ex. AW 1/137). In all these counter foils it has been stated that the premises had been let out for residence. The tenant admitted his signatures on counter foil Ex. AW 1/133. He produced various receipts but did not produce receipts relating to above mentioned counter-foils.

20. In rebuttal the tenant deposed that the premises had been let out to him residential-cum-office purpose. He also produced evidence to prove that he was using the premises for residence-cum-office since in inception of the tenancy. He deposed that he was carrying on business under the name and style of V.G. Seth & Company and Ryland Agencies. In half portion of one of the two rooms in his tenancy he had his office, other half was used as sitting room and the second room was used as bed room. He received letters Ex. RW 1/1 and Ex RW 1/2 from Pacific Agencies Ltd. and Pellerin Milnor Corporation. He had a bank account in the name of V.G. Seth & Company and the address given here was of these premises; he also got a telephone installed in these premises in the name of V.G. Seth & Company, V.N. Veid, who was earlier a tenant in the same building corroborated his statement regarding the user for residence-cum-office. K.L. Saxena from the Telephone Department stated that a telephone was installed in the name of V.G. Seth & Company in these premises on July 28, 1961. Misri Lal the postman deposed that he delivered mail addressed to V.G. Seth & Company and Ryland Agencies, Metaplastic Enterprises and Taxcam at this address.

21. On appraising this evidence, learned Additional Controller returned a finding in favor of the landlord. He mainly relied on the counter foil receipts containing the statement that the premises had been let out for residence. He ignored the user observing "that unilateral act of a party cannot change the purpose of letting."

22. In appeal learned Tribunal allowed the tenant to produce six receipts relating to 1958 and 1959 and a notice served by the landlord through his counsel. The receipts it appears were issued when the tenancy commenced. The purpose of letting was not mentioned in the receipts. Notice was a reply to the letter sent by the tenant to the landlord. It was addressed to V.G. Seth & Company. In para 9 of the notice it as stated that the premises in dispute were residential and had been let out for use as a residence but it had come to the notice of the landlord that the tenant had commenced using the same for business purpose. The tenant was called upon to stop this misuse. The tenant admitted in his statement that he did not refute this allegation. He however explained that a compromise had been arrived at between the parties and he never stopped using the premises for commercial purpose also.

23. On the other hand, landlord stated that the tenant had removed the sign board after the above notice. He admitted that in the beginning purpose of letting was not mentioned in the rent receipts and he started mentioning it only 4/5 years before the filing of the petition.

24. Learned Tribunal reappraised the entire evidence i.e. the evidence recorded by the Additional Controller as well as by himself. On reappraisal he reversed the finding of the learned Additional Controller regarding the letting purpose for the following reasons:

1. The statement regarding letting purpose given in the counter foil receipts was of no value because the purpose was not mentioned in the receipts prior to 1972. No explanation had been given for the absence of letting purpose in earlier receipts. There was no fresh agreement in 1972. Mention of letting purpose is some of receipts did not prove the exact purpose which could proved by the receipts issued initially;

2. oral evidence was self serving :

3. Landlord himself had used the address of the building for obtaining a license for the purpose of sales tax which showed that the building was not purely residential;

4. The tenant had been using the premises for residential-cum-commercial purpose since the inception of tenancy and had no other business premises.

25. Mr. Mukhoty learned counsel for the landlord, submitted that the reasons given by the learned Tribunal for reversing the finding of the Additional Controller were invalid; the flinging rendered by him though a finding of fact, was arbitrary, unreasonable and perverse. I find merit in this submission.

26. Oral evidence produced by the landlord, by itself may not be sufficient to prove that the premises had been let out for use as a residence but it was fully corroborated by the documentary evidence contained I the counter foils of the rent receipts. Learned Additional Controller had relied on these receipts. The Tribunal correctly did not doubt the genuineness of the counter foils or the statements contained therein. In these circumstances learned Tribunal was not at all justified in brushing aside the said evidence for practically no reason. It could not b ignored on the ground that in the earlier receipts letting purpose has not been mentioned. A party can always acknowledge a pre-existing fact. Such an acknowledgement would be a very strong piece of evidence and decisive of the matter unless it shown to be erroneous or untrue. Similarly statements relating the letting purpose contained in the counter-foils, are very strong evidence. Learned Tribunal was wrong in ignoring this evidence specially when there was no explanation whatsoever.

27. In the reply filed by he landlord to the application of the tenant a permission to produce additional evidence, it was admitted that the landlord had obtained registration for sales tax purposes and had given the address of this property for that purpose. On the basis of this admission alone, without there being an iota of evidence suggesting actual commercial use of any part of this building by the landlord, learned Tribunal came to the conclusion that the building was not purely residential. This finding was erroneous. Using the address of his residential premises of his residential premises for sales tax purposes would not amount to user for commercial purposes.

28. The learned tribunal then inferred the letting purpose from the user by the tenant. He had that the tenant was using the premises for residential-cum-commercial purposes since the inception of the tenancy.

29. It has been proved that the tenant had put the sign boards of his concerns V.G. Seth & Company and Ryland Enterprises on the premises; he got a telephone in the name of his concern installed in the premises in 1961 : he opened a bank account of his firm and the address given there was of these premises and he received mail addressed to his business concerns here. He produced two letters showing his business activities. The first letter is dated June 4, 1959 from Pacific Agencies Ltd. Suva, addressed to his concern V.G. Seth & Company stating that they were interested in Indian Cotton Textiles and asking the tenant if he could offer any lie enabling them to book orders on commission basis. The second letter is dated March 5, 1959 from (sic) Milnor Corporation U.S.A. addressed to Ryland Agencies stating that they were interested in finding a distributor in India for their commercial laundry and dry clearing equipments. According to the statement of the tenant out of the two rooms in his tenancy, one room was used as bed room, half portion of the other room was used as sitting room and the remaining half for office for carrying on the commercial activity.

30. Do these facts disclose user for commercial purpose so as to justify an inference that letting purpose was residential-cum-commercial. In my view, reply must be I the negative. The nature of the business activity was neither disclosed in the written statement nor in the evidence. In ordinary parlance business activity connotes sale, purchase or manufacturing of goods or any other such activity. There must be some real, substantial and systematic organized course of activity or conduct with a set purpose. The tenant had not produced any employees' register, cash books or ledgers or any other document usually kept for commercial activity. There is no evidence that any customer ever visited this place. In all these circumstances letting purpose cold not be conferred as residential-cum-commercial for the nature of user.

31. Mr. Andley complained that the tenant wanted to produce more letter by way of additional evidence but the learned Tribunal wrongly rejected this part of his prayer. The general principle is that the appellate court should not travel outside that record of he lower court. These documents were with the tenant. It cannot be believed that these letters were not within his knowledge and could not be, with due deligence, produced by him at the time of producing his evidence. The learned Tribunal did not require these documents to enable him to pronounce judgment. I find nothing wrong in the order disallowing the production of these letters.

32. These letters are thirty four in number-seven received in 1958, eight I 1959 and one each in 1962 to 1965, 1969, 1970, 1972, 1976 and 1979. Some of the letters received in 1958-59 disclose that the tenant offered his service to foreign embassies etc. which was acknowledged. Nature of the service however could not be spelled out. The tenant also showed interest in importing some machines from U.S.A. However there is no evidence to show that he ever rendered any service or imported any goods.

33. Putting the sign boards of the firm on the premises does give an impression that some business activity was going on in the premises. Landlord, admittedly took it as such. But the fact remains that he immediately objected to this user by a notice dated October 29, 1959. The tenant was called upon to stop this activity. The tenant asserted his right to use the premises for both purposes.

34. The tenant explained that after the receipt of this notice here was a compromise and he continued his business activity. The version of the tenant could not be accepted. He did not even seek permission to produce any letter relating to business activity received in 1960-61. In the following years he received only one letter every year.

35. Explanation to Clause (e) of the proviso to Sub-section (1) of Section 14 of the Act reads as under :

"Explanation : -- for the purpose of this clause "premises let for 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."

36. Relying on the said explanation Mr. Andley contended that even if it was held that the premises had been let out for residential purpose, the tenant had been using the same incidentally for commercial purpose with the consent of the landlord and therefore the landlord was not entitled to claim eviction under Clause (e).

37. This contention, in my view, has no substance. As held above, there was no commercial user. The tenant simply used the premises as an address for his concerns. In any case it cannot be said that such user was with the implied consent of the landlord. The landlord as back as 1959 had objected to even this activity. In Dr. Gopal Dass Verma v. S.K. Bhardwaj and Ors. the tenant used a substantial part of the premises for his clinic. This is not the case here.

38. For all these reasons the finding of the learned Tribunal relating to letting purpose cannot be sustained. The same is reversed and finding of the learned Additional Controller that the premises had been let out for residence is restored.

39. Consequently the appeal is allowed. The impugned order is set aside and, instead, restoring that the Additional Controller, an order for recovery of possession of the premises in dispute under Clause (e) of the proviso to Sub-section (1) of Section 14 of the Act is passed in favor of the appellant against the respondent. The respondent is allowed six month's time to vacate the premises from today.

40. The cross-objections stand dismissed.

41. The parties are left to bear their own costs throughout.