T.N. Idnani vs A.D. Khanna
1986 Latest Caselaw 380 Del

JUDGMENT

Sultan Singh, J.

(1) This second appeal under Section 39 of the Delhi Rent Control Act, 1958 (for short 'the Act') is directed against the judgment and order dated 26/4/1986 of the Rent Control Tribunal confirming the order dated 15th April 1986 of the Rent Controller for eviction of the appellant under Section 14(i)(h) of the Act.

(2) Briefly the facts are that A.D. Khanna, respondent sought eviction of T.N. ldnani, appellant from the ground floor of his house at D-403, defense Colony, New Delhi under Section 14(l)(h) of the Act on allegations that the premises were let to the appellant for residential purposes at Rs. 633.00 per month which included Rs. 3.00 on account of water charges and the appellant . had built residential house at B-19, Vasant Marg, Vasant Vihar, New Delhi. The defense of the appellant was that he became tenant in 1964-65 and constructed his house in 1972 while the present eviction petition was filed on 20/5/1984 that the respondent was aware of building the said residential house and it amounted to acquiescence/waiver of the ground of eviction. The appellant also pleaded that he had filed a petition for eviction against his tenant occupying B-19, Vasant Vihar, New Delhi on ground of personal bona fide requirement and he would shift to his house if he got possession from his tenant. In replication the respondent affirmed his plea and denied the allegations of the appellant. He pleaded that he served a notice dated 28/4/1980 Upon the appellant and from his reply dated 23/5/1980 be came to know that he had built residential house at Vasant Vihar, New Delhi, that the appellant since then had been promising to vacate the house and last communication was received by him from the appellant in August, 1983. The respondent further pleaded that he did not file the eviction petition earlier because he believed that the appellant would keep his word but when he did not vacate the eviction petition was filed.

(3) The Rent Controller after evidence held that the premises were let for residential purposes the appellant had built a residential house at Vasant Vihar after becoming tenant in the suit premises he had been promising to vacate the premises the respondent was not estopped from filing the eviction petition ; and it was not a case of acquiescences or waiver of the ground of eviction. An order of eviction was passed under Section 14(l)(h) of the Act which was confirmed by the Rent Control Tribunal.

(4) In this second appeal the only contention is that the respondent had knowledge of the residential house having been constructed by the appellant at Vasant Vihar, New Delhi but still he remained silent from 1972 to 1984 and therefore he is estopped, from filing the petition. It is admitted by the learned counsel that the house at Vasant Vihar was constructed after the appellant had been inducted as a tenant in the suit premises.

(5) Learned counsel for the respondent submits that the respondent received letters dated 23/5/1980 (Ex. A.W. 1/4) and dated 4th August, 1983 (Ex. A.W. 1/5) from the appellant wherein he had promised to vacate the premises on getting vacant possession of his house at Vasant Vihar ; there is no acquiescence or waiver of the ground of eviction ; there is no estoppel and under Section 14(l)(h) of the Act the respondent is entitled to an order of eviction as the construction of a residential house by the appellant at Vasant Vihar after the commencement of the tenancy in suit is admitted by the appellant.

(6) Section 14(l)(h) of the Act reads as under : "that the tenant has, whether before or after the commencement of this Act, built, acquired vacant possession of, or been allotted, a residence." According to this provision a tenant is liable to be evicted if he builds acquires vacant possession or is allotted a residence. This provision however does not apply to those cases where a tenant built acquired vacant possession of or was allotted a residence before the commencement of the tenancy. The appellant became tenant sometimes in 1964 and admittedly residential house at Vasant Vihar was completed in 1972. The requirement of Section 14(l)(h) of the Act is fulfillled in the present case. It is well known that there is no estoppel against statute. There is also no question of waiver. In any case facts relating to waiver have not been pleaded. According to respondent he came to know about the construction of the residential house at Vasant Vihar in May, 1980 and not before. I am of the opinion that the knowledge of the construction of residential house by the appellant is immaterial. If the conditions prescribed under Section 14(l)(h) of the Act are fulfillled a landlord is entitled to an order of eviction against his tenant. The only condition is that the tenant builds, acquires or is allotted a residence after the commencement of tenancy.

(7) Learned counsel for the appellant next refers to Batto Mal v. Rameshwar Nath and another, I.L.R. 1970 (1) Delhi 748, Smt. Sheel Utpal v. Hari Chand, 1979 Raj. Law Reporter 345 and Harmchan Dass Bagai v. T.P. Gupta, 1984 Rajdhani Law Reporter 625, where it has been observed that in an exceptional case if the landlord files the eviction petition too long after the tenant obtains vacant possession of a residence for himself then the tenant may defend the eviction on the ground that he had in the meanwhile let out his own residence to some other person as he was not bound to keep it vacant waiting for the landlord to file an eviction petition. The present case related to the building of a residential house at Vasant Vihar. All these authorities are not applicable to the facts of this case. I am further of the view that in the circumstances of the present case there is no waiver or estoppel.

(8) Learned counsel for the appellant lastly submits that on a petition for eviction under Section 14(l)(e) of the Act he obtained an order for the -eviction of his tenant Devinder Kumar Jain from the Rent Controller and that the tenant has filed C.R. No. 37 of 1986 challenging the said order ofeviction. He therefore requests that time be granted to vacate the premises in suit. C.R. No. 37 of 1986 has been dismissed by a separate order today.

(9) This appeal is dismissed with no order as to costs but the impugned order shall not be executable for eight months.