Mohd. Usman And Anr. vs Abdul Ghani
1987 Latest Caselaw 446 Del

JUDGMENT

Yogeshwar Dayal, C.J.

(1) This is an appeal by a tenant against the concurrent findings of the learned Rent Control Tribunal Delhi passing order ejectment of the appellants from the premises in dispute under clause (d) of the proviso to Section 14(1) of the Delhi Rent Control Act.

(2) The respondent-landlord had filed a petition for eviction against the appellants both under clause (h) as well as clause (d) of the proviso to Section 14(1) of the Delhi Rent Control Act.

(3) Learned Additional Rent Controller by the impugned judgment ordered the ejectment of the appellants both under clauses (h) as well as (d) of the proviso to Section 14(1) of the Delhi Rent Control Act. The tribunal on appeal by the appellants reversed the findings so far as the findings under clause (h) are concerned but affirmed the findings so far as under clause (d) of the proviso so sub-section 1 of Section 14 of the Act is concerned. Clause (d) of the proviso to Section 14(1) of the Act reads as under : "THAT the premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application for the recovery of possession thereof".

(4) There are two conditions : firstly that the premises must be let out for residential purposes and secondly neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application for the recovery of possession.

(5) The case of the landlord is that neither the tenant nor any member of his family had been residing in the premises in dispute for a period of six months prior to the filing of the eviction petition i.e. 1.4.1971. Therefore, the landlord had to show that neither the tenant nor any member of his family was not living in the premises in dispute between 1.10.1970 to 1.4.1971.

The learned Additional Rent Controller after considering the entire evidence on the record had given concurrent findings that neither the tenants nor their family members had been residing in the disputed premises for more than six months prior to the date of institution of the eviction petition. It is a pure findings of fact and cannot be interfered under Section 39 of the Delhi Rent Control Act where the second appeal lies to this court if a substantial question of law is involved.

(6) Mr. Atul Kumar learned counsel for the appellants submitted that the statement of the landlord who appeared as AW6 has been properly considered by the learned Additional Rent Controller. I am afraid there is no misreading of the statement at all. The landlord has positively stated in his examination-in-chief that the tenant is not living in the premises in dispute for the last about 5-6 years and he had purchased a house through him. He is not residing in the house which he had purchased. All that was brought out that the joint tenant Suleman was residing in his own house which he had purchased.

(7) There is no admission of the landlord that any of the joint tenant was residing in the disputed premises. There can be more than one house in Kucha Baqaullah but the question is whether the joint tenants was residing in the disputed house or not.

(8) Mr. Atul Kumar has brought to my notice that an application was filed for producing additional evidence to show that the appellants were residing in the disputed premises for the period 1970 to 24.7.1980 and also four birth certificates of the years 1968, 1969, 1972 and 1975 to show that the children of appellant No. 2 were born in the premises in dispute. The crucial period during which neither the appellants nor any member of their family had been residing in the premises in dispute is for a period of six months prior to the filing of the evidence petition. There is no electricity bill for the period 1.10.19701031.3.1971. The electricity bills are for a period up to 24.7.1970 and thereafter for the subsequent period after the filing of the eviction petition and not within a period of six months prior to the date of filing of the eviction petition. There is no electricity bill for the relevant period at all. So far as the birth certificates are concerned they do not show that the appellants were residing in the premises in dispute. Birth certificates produced are of irrelevant period. In any case, there is no sufficient cause which has been shown for leading evidence in second appeal. The appellants were given opportunity to produce the material evidence before the trial court but he failed to produce the same.

(9) For the reasons stated above, there is no merit in the application for additional evidence and the same is dismissed. Consequently, the appeal fails and is dismissed. Parties are, however, left to bear their own costs in the present proceedings. .