Ram Nath Sharma vs Kundan Kaur
1985 Latest Caselaw 420 Del

JUDGMENT

Charanjit Talwar, J.

(1) This is a petition by the landlord Rain Nath Sharma challenging the order dated 27th February, 1984, passed by the Additional Rent Controller, Delhi, (hereinafter called 'the Controller'), whereby the petition of the landlord seeking eviction of the tenant-respondent herein under Section 14(1)(c) read with Section 25-B of the Delhi Rent Control Act (hereinafter called 'the Act') was dismissed.

(2) A number of contentions have been raised in the petition. It is, however, not necessary to deal with all of them as, in my view, the case requires to be remanded to the Court of the Controller for re-adjudication on the point whether the daughter-in-law of the landlord is residing with him at Delhi. Admittedly, for about three years during the pendency of the eviction petition one of the sons of the landlord, namely. Major S. S. Agnihotri, was posted in Delhi. He had also appeared in the witness box as A.W. 2. After the parties had led evidence the tenant-respondent herein came to know that the said Major Agnihotri had been posted out of Delhi and had been transferred to Assam. Hence of 4th April, 1983, an interrogatory for the examination of the petitioner was submitted on behalf of the tenant. The question reads as follows : "HAS your son Sh. Sham Sunder Agnihotri, who is employed in the Army has since been transferred from Delhi and is now posted at E.S.E. Kan Kenara (Assam)".

(3) The landlord filed an affidavit, verified on 5th July, 1983, in reply to the said interrogatory. It is at page 159 of the record. His averment contained in the said affidavit has a bearing on the decision of this petition and, therefore, it is useful to quote the same : "Affidavit Affidavit of Shri Ram Nath Sharma son of Shri Rala Rarn resident of 4/60 Roop Nagar, New Delhi. I, Ram Nath Sharma above mentioned do hereby declare on solemn affirmation as under :- 1. The son of the petitioner Shri Sham Sunder Agnihotri has been posted to Calcutta; however his wife if employed as a teacher in Hans Raj Kulachi Model School, Ashok Vihar, Delhi and residing with the petitioner. sd/- Deponent. Verification Verified that the contents of the above affidavit are true to my knowledge. Verified at Delhi this 5th day of July, 1983. sd/- Deponent".

(4) While dealing with the question whether the sons of the landlord were residing with him, the learned Controller in paragraph 7 of his judgment held that by then Major Agnihotri had been transferred to Calcutta. It has been noticed therein that this was a matter of record. Mr. Jaggi, learned counsel for the respondent, fairly concedes that the only document on the record which goes to show that the petitioner's son had in fact been transferred to Calcutta by then is the above-said affidavit. The averment in the affidavit that Major Agnihotri's wife was employed as a teacher in Hans Raj Kulachi Model School, Ashok Vihar, however, has not been accepted by the learned Controller. His reasons are "To my mind a mere affidavit can be no evidence of the daughter's-in-law residence with the petitioner. The petitioner could have obtained better and reliable evidence from the school where the daughter-in law is alleged to be employed. The oral testimony of A.W. 4 G.D. Mal would not inspire much confidence in the face of the fact that the ration card of the petitioner shows only two members on it."

(5) I may note here that A.W. 4 was produced on 27th February, 1980. At that time there was no controversy whether the daughter-in-law was in Delhi or not. It was the admitted case of the parties that Major Agnihotri by then had been transferred to Delhi and was living with his wife in the premises in question. The controversy arose only after the transfer of the son and that fact came to be known to the respondent-tenant some time in 1983 and, therefore, the question in the interrogatory.

(6) The approach of the Controller on this aspect is apparently not correct an his finding on this question has definitely resulted in miscarriage of justice. It was for the Controller to have given an opportunity to the landlord, in case the affidavit regarding the daughter's-in-law stay was to be ignored or rejected, to lead oral evidence in support of that plea. It is common knowledge that Army officers on transfer from one peace station to another are not allotted family quarters straightaway. The averment was that the son's wife had taken up a job. She was working in a school and, therefore, was living in Delhi. There can be no doubt that if that was a correct averment, her requirement for proper accommodation in her father's-in-law house was in law his bona fide requirement. The plea of the landlord, therefore, ought not to have been rejected in a summary manner.

(7) The finding, quoted above, is not only illegal but has resulted in miscarriage of justice. I accordingly remand the case for further proceedings in accordance with law. I may note here that the landlord has made an application in this Court for permission to lead additional evidence on the ground that circumstances have changed after dismissal of the petition. Mr. Jaggi submits, and rightly so, that if permission is granted by this Court or by the Controller to the landlord to lead evidence, oral or documentary, his right to lead evidence in rebuttal must be safeguarded. I do not think that any orders are necessary to be passed by me at this stage. The learned Controller, I am sure, will certainly pass orders which are required to be passed in law. The impugned order is, however, set aside. The parties through their counsel are directed to appear before the Rent Controller on 1st November, 1985 who may assign this case to any of the Additional Rent Controllers for further proceedings. The Additional Rent Controller will decide the matter expeditiously. No order as to costs.