H. Abnash Chander Sehgal Etc. vs V.K. Kharbanda
1987 Latest Caselaw 426 Del

JUDGMENT

P.K. Bahri, J.

(1) This civil revision has been brought under Section 25(B)8 of Delhi Rent Control Act against the order dated 10th May, 1985 of Sh. G.D. Dhanuka, Additional Rent Controller, Delhi by which he dismissed the petition for eviction brought by the petitioners on the ground of bona fide requirement for residence of the premises in question.

(2) Admitted facts in brief are that property bearing Municipal No. 883/884, East Park Road, Karol Bagh, New Delhi, was purchased by the petitioners in the year 1967 as per sale deed which is Ex. AW-I/I. The property was in occupation of different tenants but ultimately the petitioners got vacated certain portions by filing eviction cases and some tenants vacated on their own and petitioners started living in the ground floor of the said property. The premises in the first floor, which are now in tenancy of respondents, were lying vacant for some period and they came to be let out to respondent on the 5th February, 1972 at the rental of Rs.500.00 per month after necessary permission had been taken from the Rent Controller for creating limited tenancy for two years under Section 21 of Delhi Rent Control Act. Petitioner No. 1 is the son of petitioners 2 & 3. Petitioner No. 2 was a practicing Advocate, admittedly had become ill for about 10 years prior to his death. He died during the pendency of the eviction case. Eviction petition was brought on the 27th February, 1980. It was the case of the petitioners that premises in question had been let out to the respondent only for residential purposes. Wife of petitioner No. I, admittedly, is working in Safdarjang Hospital and she got allotted a Government accommodation at 160, Laxmibai Nagar, New Delhi. That accommodation remained vacant for some period as petitioner No. I is stated to have gone to U.K. for getting some treatment and on his return from U.K.., petitioner No. 1, his wife and two sons shifted to 160, Laxmi Bai Nagar flat whereas petitioners 2 & 3, parents of petitioner No. 1, continued to reside in the ground floor of the house in dispute. It was the case set up in the petition that petitioner No. 2 had grown old and due to his ailments he could not continue to live alone without there being any male member to look after him, so petitioners 2 & 3 also shifted to flat at Laxmibai Nagar and as the ground floor, which they vacated, was no more required for residence, so the same was let out to C.G.H.S. for running a dispensary at the rental of about Rs.2,900.00 per month. It was pleaded in the petition that soon after petitioners 2 & 3 started living with petitioner No. 1 and his family members, petitioners 2 & 3 felt uncomfortable in the small rooms available in that flat and they had the feeling of choking and there also arose quarrels between wife of petitioner No. 1 and petitioners 2 & 3 as unexpectedly wife of petitioner No. 1 did not like petitioners 2 & 3 living with them and at one point of time, even petitioner No. 1 was rebuked by his wife when he advised his wife to behave properly with his parents but his wife flared up and retorted that he and petitioners 2 & 3 should leave her flat and live in their own house. So, it was urged that the petitioners did not have any other reasonably suitable accommodation for their residence and bona fide required the premises in question for occupation as residence.

(3) The petition has been contested by the respondent. The respondent has taken the plea that he has taken the premises in question for residential-cum-clinic purposes and he has been using the same from the very inception of the tenancy for both purposes. He pleaded that a fraud was practiced in obtaining permission under Section 21 of the Delhi Rent Control Act as he was assured by petitioner No. 2 that it was only a paper work and he could use the premises for his professional purposes also. It was further pleaded by the respondent that after he left Government service in 1975, he has been using the premises continuously for residential-cum-clinic purposes to the knowledge of the petitioners and petitioners have never objected to the such user at any time and as a matter of fact, petitioners and their family members had been having treatment from the respondent at his clinic in the premises in question and they had been also recommending patients for treatment at the clinic of the respondent in the premises in question. It was. pleaded that the petitioners were estopped from asserting that the premises in question had been let out for residential purpose only. The respondent further pleaded that the petitioners had shifted to Laxmi Bai Nagar flat knowing very well the accommodation available in that flat and within six months of shifting in said flat there had not taken place any change in circumstances necessitating the return of the petitioners to the house in question for their residence. He denied that any quarrel had taken place between the petitioners and wife of petitioner No. I at any time. He pleaded that petitioners have reasonable suitable accommodation in Laxmi Bai Nagar and moreover, petitioners have two room set for their residence available to them in the ground floor of the house in question and two rooms in mezzanine floor and another room in the ground floor of the house. He also pleaded that another two room set was in occupation of a sister of petitioner No. 3 who had no right to stay in that flat and who had also constructed her own house where she had shifted. He also mentioned that another two room flat was in unauthorised occupation of nephew of petitioner Nos. 2 & 3 and in case the petitioners had any need of residing in property in question they could easily occupy any of those flats. He further pleaded that real intention of filing the present petition is to put pressure on the respondent to increase the rent as he did not succumb to the oral request of increase in rent made by petitioner No. 3 and petitioner No. I in the presence of some witnesses. He also mentioned that ground floor had been let out for commercial purpose at an exhorbitant rent and petitioners wish to get vacated the first floor in order to let out the same at enhanced rent. It was further pleaded that the petitioners had also at one point of time advertised in the newspaper for selling the house in question.

(4) In replication the petitioners controverter the pleas raised by the respondent and reiterated the pleas taken in the petition. It was denied that at any time any request was made for enhancing the rent. It was however admitted in the replication that since respondent had left his Government service he had been using the premises in question for his practice but it was pleaded that the petitioners had never given any consent for such user and rather had been protesting for this misuse of the premises.

(5) In support of their case, the petitioners examined petitioner No 1 as AW-1 and sister of petitioner No. 3 as AW-2, Mrs.S Gandhi,who admittedly, was residing in two room set in the ground floor of the property in dispute. In rebuttal, respondent examined himself as RW-4 and official from C.G.H.S. as RW-1 to show that the ground floor has been let out by the petitioners since 6th August, 1979 and at no time petitioners had made any request to C.G.H.S. for vacating the ground floor as petitioners required the premises for their own residence. He also examined Dr. Ved Prakash as RW-2, who has professional relationship with the respondent to prove that the respondent had been using the premises in question turn seeing his patients free of costs as long as respondent was in Government service in Dr. Joshi Hospital and had been using the premises in question regularly as a clinic since he left Government service and RW-3. Sh. B.S. Narula, the brother-in- law of the respondent on the point that the premises have been used for both purposes by the respondent and in January, 1979 petitioner No. 3 had required the respondent to increase the rent to Rs. l,000.00 and RW-5,Sh. Bala Gopal, who proved the directory, RW-5/1 showing that respondent is a member of a Medical Society and has given the address of the premises in question as his clinic and lastly, RW-6 Sh. A.P. Singh who has been visiting respondent as his wife was colleague of the respondent in Joshi Hospital and in March, 1974 he has got his son treated from the respondent at the premises in question because it was a Sunday and the respondent was not available in the hospital. One more witness was examined as RW-6, perhaps the number given is wrong. He should have been RW-7. He is a Clerk from the Corporation who brought the record and made reference to the total rooms available in the ground floor. His evidence does not appear to be of any help to the respondent or to the petitioners in any manner.

(6) On a perusal of the evidence, the Additional Rent Controller came to the findings that initially the premises in question had been let out to the respondent for residential purpose but it is proved that after respondent left the Government service in 1975 he had been using the premises in question for his clinic purposes as well with the knowledge and consent of the petitioners and thus, the letting purpose of the premises in question is residential-cum-commercial. He also gave the finding that the petitioners in fact are in possession of reasonably suitable accommodation and they have falsely cooked up the story of quarrels taking place between the wife of petitioner No. I and petitioner No. 3 and in fact petitioners No. 2 & 3 did not have any feeling of choking while residing in Laxmi Bai Nagar flat and that they had shifted to the said flat knowing very well the accommodation available in that. Hat and there had no t taken pla.ce any change in circumstances within six months so as to make the need of the petitioners valid for having the premises in question for their ridence. He also held that the petition has been brought with a mala fide motive perhaps to increase the rent, so he dismissed the eviction petition.

(7) It is not disputed before me that the petitioners are the owners of the property in question. The first question to be decided in the present civil revision is whether the finding of the Additional Rent Controller that the premises had been let out for residential-cum-clinic purpose is correct or not. It has been argued on behalf of the petitioners by Sh. R.L. Tandon, Advocate that a new case had been sought to be made out by the Additional Rent Controller which was never pleaded by the respondent in his written statement that letting purpose of the premises had changed. He has argued that no amount of evidence on plea which was never raised by the respondent in the written statement could be looked into and the parties have to abide by the pleadings and decision must be given on the pleadings. He has cited Siddu Venktappa Devadiga v. Smt. Rangu S. Devadiga and others , in which it has laid down that it is well settled that the decision of a case cannot be based on grounds outside the plea of the parties, and that it is the case pleaded which has to be found. He also referred, to Smt. Purni Devi v. Sri Tara Chand, 1985 (2) Rcj 358 titled. In this case there was no plea taken by the tenant that after the initial letting any agreement has been made for changing the letting purpose. It was of course held in this judgment that in the absence of any plea the tenant could not be allowed to show that letting purpose changed after the initial letting. However, in the present case, I have closely gone through the written statement and find that in additional pleas the respondent has specifically pleaded that after leaving the Government service in 1975 he had been using the premises for residential- cum-clinic purposes with the knowledge and consent of the petitioners. So, this particular averment in the written statement would show that it is the case of the respondent that at least since 1975 he has been using the premises in question for his clinic purposes as well with the consent and knowledge of the petitioners meaning thereby that he has pleaded that letting purpose became residential-cum-clinic at least since 1975 as the petitioners never raised any objection to such user since then. So, it cannot be argued on behalf of the petitioners that there was no plea taken by the respondent regarding change in the letting purpose. In law the Court is bound to peruse the whole of the written statement in order to understand the pleas taken by the party. It lies been not now seriously argued before me even by learned counsel for the respondent that initially, the letting purpose was not residential only. It is undisputed fact that respondent was in Government service at the time he took premises on rent and under the Government Conduct Rules he was not entitled to practice privately, so there could be no occasion for him to have taken the premises in question initially for residential-cum- clinic purposes. It is not possible to believe that respondent had blindly signed the agreement when the permission was sought from the Additional Rent Controller for creating a limited tenancy under Section 21 of the Act because respondent is a very well educated person and he could not have blindly signed the documents/Court papers without understanding their import and implication. The respondent did not deny that he had engaged a lawyer when the permission was taken from the Additional Rent Controller and statements were made before the Additional Rent Controller. Even otherwise, the facts and circumstances do support the finding of the Additional Rent Controller that initia.lly, the premises had been taken by the respondent for residential purpose only. It is pertinent to mention that in a reply filed by respondent in civil proceedings in a case of injunction between the parties he took up a plea that at the time the premises in question were taken on rent. no specific letting purpose was settled. The certified copy of that reply appears on page 615 and the same was admitted although it was not given any formal exhibit number. An admitted document can always be relied upon during the proceedings. Mere fact that while in Government service respondent had at one occasion or another seen some patients free of charges at his house during his spare time would not mean that he had taken the premises in question for residential-cum-clinic purposes.

(8) The question to be seen is whether letting purpose had changed or not, as pleaded in the written statement, when respondent admittedly left Government service in 1975 and had started using the premises in question for his clinic purpose. Even in replication it is an admitted fact that respondent has been using the premises in question for clinic purpose at least since 1975. So it is not the case of the petitioners that they had no knowledge of such user. Petitioner No. 1 in his statement had mentioned that a notice had been given to the respondent objecting to the such misuse of the premises but no proof has been furnished on the record that in fact any such notice had been served. However, respondent while being cross-examined on this point had stated that he did not remember whether any such notice had been served or not and he had given any reply to such notice or not. The fact remains as admitted even by petitioner No. 1 in cross-examination that from 1975 to 1979 no written objection was made regarding the user of the premises in question for cl'nic purpose by the respondent. One fact which has been not considered in proper perspective by the Additional Rent Controller is the admissions made by the respondent in the counter-foil rent receipts Ex. AW-1/2 to AW-1/16, AX-1 and AX-2. These counter-foil receipts show that at all points of times, respondent has been signing these counter-foil rent receipts and in these receipts the letting purpose has been shown to be residential only. The Additional Rent Controller did not attach any importance to these vital documents. These documents do show that the petitioners were all the time mentioning that the letting purpose of the premises in question is residential. Mere fact that they had not taken any action against misuse of the premises by the respondent would not, in such circumstances, lead to any inference that petitioners had consented to the said misuse or had acquiesced in such state of affairs so as to infer implied consent of the petitioners to the user of the premises for clinic purpose by the respondent when the petitioners have been mentioning in the rent receipts the purpose of the letting to be residential only and respondent had been agreeing to the same by signing the counter-foils of the receipts. The letting purpose could change only by mutual agreement. In the present case, the fact that the petitioners have been mentioning the letting purpose as residential in the rent receipts would show that the petitioners were not willing at any time to change the letting purpose. The respondent has not explained his admission appearing in these counter-foil rent receipts regarding the letting purpose being residential only either in his written statement or in his statement as RW-4. No suggestions had been given to petitioner No. 1 in cross-examination as to how and under what circumstances the letting purpose continued to be written as residential in the rent receipts and counter-foil rent receipts, in case the petitioners had consented otherwise.

(9) In Bharat Singh and others v. Mst. Bhagirathi titled, it has been held that admission is a substantive piece of evidence by itself and it is not necessary to confront the document containing admission to a party as Section 145 of the Evidence Act would not apply to such a document containing admission of a party.

(10) In Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi & others, titled, it was laid down that an admission is the best evidence that an opposing party can rely upon. Unless and until an admission is explained or is shown to be erroneous on a fact ; the admission furnished is the best evidence on a fact.

(11) As far as question of petitioners and their family members getting any treatment from the respondent in the premises in question is concerned, there is denial by the petitioners on this aspect of the case whereas there is testimony of the respondent on the contrary. The possibility that the respondent had been consulted by the petitioners and their family members at some time cannot be completely over-ruled when it is admitted that the respondent had performed an operation on the grand-mother of petitioner No. 1 in Joshi Memorial Hospital before respondent had become tenant of the petitioners. So, in case of need, the petitioners must have been getting some treatment from the respondent but that would not go to show that petitioners had given their consent express or implied at any time that premises in question could be used for clinic purpose. It is one thing to say that the petitioners did not object to the user of the premises by the respondent for clinic purpose. It is another thing to prove that the petitioners had given implied consent for such user. If there had been no clear evidence in the shape of admissions of the respondent in the counter-foil rent receipts clearly showing the intention of the parties that letting purpose of the premises in question is residential only, then it could be rightly argued that the petitioners by not objecting to the user of the premises by the respondent for clinic purpose had acquiesced in the said state of affairs and by their conduct of not objecting to said misuse they would be deemed to have given their implied consent for such misuse and then the case would have been covered by the principles enunciated by the Hon'ble Supreme Court in Dr. Gopal Dass Verma v. Dr. S.K. Bhardwaj & another, titled, followed by our High Court in Munshi Ram Sakhya v. Ram Per shad, 1981 Rajdhani Law Reporter (Note) 20 titled and Sh. V.B. Raja v. R.L. Mahindroo, 1982 Rajdhani Law Reporter 650 titled.

(12) In the present case, however, there is clear evidence that the petitioners had not given their consent to the change of letting purpose as in the rent receipts they had been mentioning the letting purpose as residential and rhe respondent had been acknowledging the said assertion by signing the counter-foils of rent receipts. So, in the present case, it cannot be held that the petitioners had given their consent impliedly or otherwise to the change of letting purpose.

(13) The counsel for the petitioners had argued that question of letting purpose is a question of fact and while exercising the powers under Section 25(B)-8, the High Court has no jurisdiction to re-appraise the evidence and upset the finding of fact given by the Additional Rent Controller.

(14) It is true, that ordinarily the High Court is bound by the finding of fact given with regard to the letting purpose or with regard to the question whether the landlord is in possession of reasonably suitable accommodation or not but where the Controller fails to draw a legal inference from the admitted facts or fails to notice certain admissions appearing in the documents which have a bearing on the finding, the Controller would be deemed to have committed an error of law and the High Court would be entitled to correct such illegal finding of the controller. In the present case the Additional Rent Controller failed to take into consideration the admissions appearing in the counter-foil rent receipts in proper perspective. In Ishar Das Sawhney v. S.C. Mohindru, 1980 Rajdhani Law Reporter 662 titled, while discussing the scope of judicial review under Section 25B(8) one of the basis on which the judicial review can be exercised was enunciated as follows :- "IF a finding of fact arrived at by the Controller as based on an inference from primary facts, such an inferential finding can be revised if it is shown that such an inference could not be derived at all or in law."

(15) It is Bow settled law that High Court has power to interfere where the order of the Controller is without jurisdiction or contrary to law or to the express provision of any Act or where he has arrived at a finding wholly perverse or contrary to evidence or based on no evidence or where some procedural irregularity has been committed resulting in miscarriage of justice.

(16) In the present case, the Additional Rent Controller committed grave illegality in not attaching any importance to the admissions made in the counterfoil rent receipts relating to the letting purpose at all relevant times by the respondent. So, I hold that in the present case, the letting purpose of the premises in question has been proved to be residential only and the finding of the Additional Rent Controller to the contrary is wrong and illegal and is reversed.

(17) Since the filing of the eviction petition the material changes have occured in the facts. It is sought to be pleaded by way of an application by the petitioners now that the flat at Laxmi Bai Nagar was surrendered by the wife of petitioner No. I and in lieu of the said flat another flat No. D-11/28 Kidwai Nagar was allotted to her with effect from 24th April, 1984 and after vacating the Laxmi Rai Nagar flat, the petitioners have shifted to the said flat which is more commodious but unfortunately, the allotment in the name of the wife of petitioner No. I was cancelled by the authorities and proceedings for eviction were taken under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and an eviction order was passed on 20th July, 1984 by the Estate Officer and an appeal filed under Section 9 of the Act was dismissed on 3rd August , and a Civil Writ Petition 1921/84 has been filed in which stay of dispossession had been granted. So, it is urged that petitioners have no legal right to stay in the flat which was allotted to wife of petitioner No. 1 inasmuch as even wife of petitioner No. 1 in fact has lost the legal allotment of the said flat and petitioners and wife of petitioner No. 1 are staying in that house only on account of a stay order obtained in the writ petition. An affidavit has been filed by petitioner No. I in support of these facts which are termed as subsequent events which occured after the filing of the eviction petition. Counsel for the respondent has vehemently argued that all these events had taken place before the eviction petition was decided and the petitioners intentionally did not disclose these facts to the Controller and these facts cannot be now allowed to be taken on record as subsequent events. According to the contention raised by him only facts which occured after the disposal of the case by the Controller could be termed as subsequent events which can be taken notice of by this Court.

(18) It is true that these facts had come into existence even before the eviction petition was decided by the Controller, yet the Court cannot shut out these facts from consideration. After all these facts have an important bearing on the point whether the petitioners can be stated to be in possession of any reasonably suitable accommodation or not. In counter-affidavit, the respondent had only highlighted the legal objection but on merits he only mentioned that if these facts are to be taken into consideration then he should be afforded an opportunity to lead some evidence. He has, however, not cared to controvert these facts in his affidavit. Once it is to be held that these facts can be taken into consideration as subsequent events then obviously there would be no question of taking more evidence on these facts. A fair offer was made on behalf of the petitioners that in case the eviction order is passed against the respondent in this case the same may be held to be executable only if the wife of petitioner No. I was to fail in the writ petition and was to be forced to vacate the Government flat. But this offer has not been accepted by the counsel for the respondent.

(19) In Pasupuleti Venkateswarlu v. The Motor & General Traders, , it was held that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in any cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. It was held that where, during the pendency of a proceeding under Rent Control legislation by the landlord for permission to evict the tenants, a subsequent event in the facts of the case takes place which has a material bearing on the landlord's right to evict, the approach of the High Court in revision, in taking cognizance of the new development cannot be said to be wrong or illegal.

(20) The respondent has, on the other hand, cited Parbia Ram v. Smt. Thopli and others, titled which has discussed the scope of Order 41 Rule27CPC. Strictly speaking, the petitioners would not have right to take resort to provisions of Order 41 Rule 27 for leading any additional evidence. But in view of the pronouncement of the Supreme Court mentioned above, the facts mentioned in the affidavit of petitioner No. 1 with regard to the events and developments, which took place after parties had completed their evidence in the eviction proceedings, can be treated as subsequent events which this Court must take cognizance because they have lot of bearing on the merits of the case. So, the finding of the Additional Rent Controller with regard to the sufficiency of accommodation with the petitioners in Laxmi Bai Nagar has now become redundant because of the new development that has taken place. The flat now being in occupation of the petitioners cannot be treated to be reasonable suitable inasmuch as the allotment of the said flat stands cancelled and even wife of petitioner No. I has no legal right to continue in that flat. It is not proved that the flat which is in occupation of sister of petitioner No. 3 has been vacated. The accommodation in possession of sister of petitioner No. 3 in the house in question also cannot be considered available to the petitioners for their residence. The petitioners, admittedly, had already obtained a decree for possession in respect of accommodation in possession of nephew of petitioner No 3 but an appeal is stated to have been filed in the High Court and stay has. been obtained. So, that accommodation also cannot be considered available to the petitioners for their residence. mezzanine floor, which is in possession of petitioners, admittedly, is being used by petitioner No. I for his practice since long, and at any rate the same cannot be treated suitable for residential purposes. There is only one room in the ground floor available to the petitioners which, on the face of it, is not sufficient for the residence of the petitioners. So, even though the the petitioners might have wrongly cooked up the story of wife of petitioner No. I having quarrels with petitioner No. 3 even then, as the case now stands, it cannot be held that need of the petitioners for the premises in question for their own residence and for the residence of their family members is not bona fide. In view of the conflicting evidence of the witnesses of the respondent regarding the factum of demand of rent having been made by the petitioner No. 3 at one time the Additional Rent Controller was not right in holding that intention of the petitioners was to have the rent increased. It is true, that at one point of time, petitioner No. 1 had given an advertisement for sale of the house but that intention was given up when the ground floor was let out. It has been argued that no efforts had been made to get possession of the ground floor from C.G.H.S., but it is obvious that ground floor having been let out for non-residential purpose, the petitioners could not have legally got eviction of C.G.H.S. from the ground of bona fide requirement of residence. Hence, I reverse the finding of the Additional Rent Controller on the point that petitioners are in possession of reasonably suitably accommodation and that petitioners have filed the petition with a mala fide motive. I hold that the petitioners are not in possession of any reasonably suitable accommodation and they bona fide require the premises in question for occupation as residence for themselves and they have not sought any increase of rent from the respondent.

(21) I allow the petition and set aside the order of Controller and pass an eviction order against the respondent and grant him six months time for vacating the premises. In view of the peculiar facts, I leave the parties to bear their own costs throughout.