Jagan Nath Aggarwal vs Umrao Singh
1987 Latest Caselaw 186 Del

JUDGMENT

S.B. Wad, J.

(1) This is the second appeal of the tenant against the judgment of the Rent Control Tribunal, Delhi, dated 8-4-1986. Through the impugned judgment the Rent Control Tribunal had confirmed the order of the Additional Rent Controller passing an eviction order against the tenant under Section 14(l)(d) and (h) of Delhi Rent Control Act.

(2) The appellant was inducted as a tenant in the suit premises in 1955. The tenant had purchased another house being C-466, Nanak Chand Basti, Kotia Mubarakpur in 1949. He made some additional constructions in it and let out the said house. In 1966 the house in Kotia Mubarakpur fell vacant and the tenant's son shifted there. Thereafter, he himself shifted to the house at Kotia Mubarakpur. In the suit premises the married daughter of the tenant started staying with her husband. The landlord served the notice of termination on the tenant on 18-8-1978. There are two findings of fact recorded by the Tribunal. They are that in 1966 the tenant's house in Kotla Mubarakpur fell vacant and became available to him for his residence. Secondly, it is the married daughter of the tenant who is alone staying in the suit premises. These findings of fact cannot be challenged in the second appeal.

(3) The counsel for the tenant, on the basis of the said findings of fact, argues that the vacant possession of the house in Kotia Mubarakpur became available to the tenant in 1966 but the landlord gave a notice of termination on 18-8-1978. The counsel then submits that by his conduct the landlord has waived the right available to him under Section 14(l)(h) of the Act. He has relied upon Hem Chand Baid v. Smt. Prem Wati Parekh, 1979(2) Rcr 328. I was a party to the said Division Bench judgment relied upon by the counsel for the tenant. It was held by the Division Bench that once the tenant acquires vacant possession of other residential premises he loses the protection of Section 14(l)(h) and it is not necessary that the said default should continue till notice of termination is given. It has been clarified that the words "has acquired vacant possession" appearing in Section 14(l)(h) import concluded default and not continuing default. The counsel submits that in the said Division Bench judgment the Division Bench had approved the earlier decision of this court in Battoo Mal v. Rameshwar Nath, 2nd (1970) I Delhi 748 and particularly the observation "that the landlord's right of eviction might get defeated by application of general principles of waiver or laches in exceptional cases." The careful reading of the Division Bench judgment, relied upon by the counsel for the tenant, would show that in Battoo Mat's case on facts no such question of waiver or laches had arisen. Nor was any such question raised or upheld in the said Division Bench decision. But apart from this fact no plea of waiver was raised at any stage in these proceedings, except at the stage of argument. Even in the memo of appeal no such plea has been raised. There are no exceptional circumstances shown in the present case for laying down the foundation for plea of waiver. The contention is rejected.

(4) The second submission of the counsel for the tenant is that the word "family" in Section 14(l)(d) should be liberally construed and as the married daughter was living with her father Along with her family, the eviction cannot be ordered under Section 14(l)(d). On the established facts it is clear that the married daughter is alone staying with her family in the suit premises and the tenant has shifted to his house in Kotia Mubarakpur. The married daughter is in the exclusive possession of the suit premises and is not living there with the tenant. Even if the word "family" is to be liberally construed, it cannot include the married daughter with her family. In an exceptional case such as where the married daughter is divorced and has no place to stay and stays with the father the benefit can be extended to her but even there the requirement is that the tenant must live in the suit premises and such a married daughter can be accommodated with him. The provisions of Section 14(l)(d) cannot be availed of by the tenant who has left the premises and some other member of his family is staying in the suit premises. There is no merit in the submission and the same is rejected.

(5) The second appeal is dismissed with costs. The suit premises shall be vacated by the tenant and ' his married daughter and the possession be- handed over to the landlord on or before 12-5-1987.