Nanak Chand vs Shanti Gupta
1988 Latest Caselaw 9 Del

JUDGMENT

Sunanda Bhandare, J.

(1) This revision petition under Section 25-B(8) of the Delhi Rent Control Act (hereinafter referred to as the Act) is directed against the order of the Additional Rent Controller, Delhi dated 16th April 1986 in eviction case no. 190/79.

(2) The facts of the case lie in a very narrow compass. The respondent Smt. Shanti Gupta filed a petition for eviction against one Shri Babu Ram in respect of property no. 2695, Chowk Raiji, Roshanpura, Nai Sarak, Delhi under Section 14(l)(e) read with Section 25-B of the Act. During the pendency of the eviction petition Shri Babu Ram died leaving behind the petitioner, Smt. Savitri Devi, Smt. Lakshmi and Smt. Gomit. Therefore, on an application made by the respondent under Order 22, Rule 4 read with Section 151 of the Code of Civil Procedure, the Additional Rent Controller substituted these persons in place of late Shri Babu Ram.

(3) It was contended by the learned counsel for the petitioner that since the premises were let out to Shri Babu Ram both for residential-cum- commercial purpose in view of the latest judgment of the Supreme Court in Smt.Gian Devi Anand-v.Jeevan Kumar and Others, , the tenancy in respect of these premises was heritable and no order under Section 14(l)(e) read with Section 25-B of the Act could be passed by the Additional Rent Controller without going into the question of the letting purpose. Learned counsel submitted that if the premises are let out for commercial purpose the tenant cannot be evicted under Section 14(l)(e) read with Section 25-B of the Act, It was further submitted that assuming that the premises were let out for residential purpose even then the finding of the Additional Rent Controller that the petitioner was not financially dependent on Babu Ram is not correct and the petitioner is protected under Section 2(1) of the Act and is not governed by Explanation Ii to the said sub-section,

(4) On the other hand, it was contended by the learned counsel for the respondent that there is a categorical finding of the Additional Rent Controller that the premises were let out for residential purpose and .not for commercial purpose and, therefore, the Additional Rent Controller was competent to pass an order under Section 14(l)(e) read with Section 25-B of the Act. Learned counsel further submitted that the petitioner had made a categorical statement that the premises were all through-out let out for residential purpose and were being used as such right from the very beginning. He further referred to the statement of the petitioner to support the finding of the Additional Rent Controller that the petitioner was not financially dependant on Babu Ram. It was submitted that therefore, the petitioner's possession could be protected only for a limited period of one year as provided in Explanation Ii to Section 2(1) of the Act.

(5) It appears that the main case of the respondent in the petition for eviction was that the premises were let out for residential purpose and were needed bona fide by the respondent for her personal use. In the written statement which was filed by late Shri Babu Ram, he denied the bona fide need of the respondent and also contended that the premises were let out not only for residential purpose but were let out for residential cum commercial purpose. I However, after the death of Shri Babu Ram when the present petitioner) Smt. Savitri Devi, Smt. Lakshmi and Smt. Gomit were substituted since the legal position as it stood then was that the tenancy in respect of commercial premises is not heritable, a statement was made by the petitioner when he appeared as a witness in support of his case that the premises were being used solely for residential purpose and not for commercial purpose. The respondent on the other hand, also took alternate please. It was averred in the application filed by her under Order 22 Rule 4 of the Code of Civil Procedure that in any case the petitioner was not entitled to retain the possession beyond a limited period of one year. It was contended by the respondent that if the premises were commercial as per the settled law since the tenancy was not heritable the petitioner would have to vacate the premises on the death of Shri Babu Ram and if the premises were let out for residential purpose, since on his own admission the petitioner was not financially dependant on his father Babu Ram his possession was protected only for a limited period of one year under Explanation Ii of Section 2(1) of the Act.

(6) It is true that before the judgment of the Supreme Court in Smt. Gian Devi Anand's case (supra) the Full Bench of this Court in Kedar Nath & Another v. Smt. Mohani Devi & Others had held that the tenancy rights in commercial premises were not heritable and only tenancy rights in residential premises were heritable. This judgment of the Full Bench of this court however has been over-ruled by the Supreme Court in Smt. Gian Devi Anand's case (supra). According to this judgment, even tenancy in commercial premises is heritable under the Act. It is also true that if the premises are let out for commercial purpose, eviction on the ground of bona fide need under Section 14(l)(e) read with Section 25-B of the Act cannot be granted. However, I find from the record of the present case that though originally Babu Ram had in his written statement disputed the averment of the respondent-landlady that the premises were let out for commercial purpose, at a subsequent stage after the death of Babu Ram when the evidence was recorded, the petitioner herein made a categorical statement in his crossexamination that the premises were let out for residential purpose alone and not for commercial purpose and were being used for that purpose all throughout. The Additional Rent Controller considered all the aspects of the matter and came to a categorical finding that the premises had been let out for residential purpose. The Additional Rent Controller has also referred to Ext. Aw 1/5 i.e. a notice dated 17th September, 1977 sent by the landlady terminating the tenancy of Babu Ram and the reply sent by Babu Ram to the respondent-landlady that the premises were let out for residential purpose. On perusal of these documents also I find that the finding of the Additional Rent Controller is not wrong. Shri Babu Ram had not denied in the reply to the notice that, the premises were let out for residential purpose. Thus when one reads the notice and its reply Along with the statement of Shri Nanak Chand, petitioner herein, it is clear that the premises were let out for residential purpose alone. Now, once their is a categorical finding that the premises were let out for residential purpose alone even if the tenancy is heritable, the provisions of Section 2(1) of the Act would be applicable. At that stage it became necessary for the Additional Rent Controller to go into the question whether the son of Shri Babu Ram i.e. the petitioner herein was financially dependent on Babu Ram. If he was not, then he would be protected under Explanation Ii to Section 2(1) of the Act only for a limited period of one year. The petitioner in his statement has stated that he was running a 'Halwai' shop independently and it was he who supported his father for his livelihood. That being the position, on his own admission the petitioner cannot be stated to be financially dependant on Babu Ram. I, therefore, find no force in the contention of the learned counsel for the petitioner and see no ground to interfere in this revision petition. Dismissed.