Sita Nagpal And Anr. vs Vinod Kumar Nijhawan
1988 Latest Caselaw 179 Del

JUDGMENT

P.K. Babri, J.

(1) This civil revision has been brought under Section 25-B(8) of the Delhi Rent Control Act. challenging the eviction order dated September 22, 1987, of Shri M.S. Sabharwal, Additional Rent Controller, made on the ground of bonafide requirement for residence covered by clause (e) of sub-section (1) of Section 14 of the Delhi Rent Control Act.

(2) Dr. L.M. Singhvi, Senior Counsel who argued the case on behalf of the petitioners-tenants has challenged the eviction order on the following points, firstly, that the finding of the Additional Rent Controller that premises in question is proved to have been let out for residential purposes only is perverse inasmuch as the Additional Rent Controller has approached the case in an illegal manner by not placing the burden of proof on the landlord to prove that in fact, the premises had been let out for residential purposes only and that he committed grave illegality in discussing the evidence of the parties on uneven scales. It has been urged that a yard-stick adopted by the Controller in assessing the evidence of the petitioners was completely different from the yard-stick adopted by him in appraising the evidence of the landlord-respondent; secondly, that the Additional Rent Controller was wrong in negativing the plea of the petitioners regarding non maintainability of the eviction petition inasmuch a previous eviction petition had been dismissed in default on the same ground in 1981 and there had occurred no change in the circumstances of the landlord entitling him to set up the ground of bonafide requirement for residence afresh; and thirdly, that the Additional Rent Controller grave wrong finding that the landlord bonafide requires the demised premises for occupation as residence for himself and for his family members dependent upon him and he was not in possession of reasonably suitable alternate accommodation. It was urged that there was no evidence that the accommodation already in possession of the landlord-respondent was not suitable to him inasmuch as be had no legal right to occupy the said accommodation and the said property belonged to his brother who had asked him to vacate the premises when the said brother was not examined as a witness to prove that he had required the respondent-landlord to vacate the premises. Point No. 1:

(3) This property in question originally belonged to the Custodian and Inder Nath Nagpal, predecessor-in-interest of the petitioners being the husband of petitioner No 1-Smt.Sita Nagpal and father of the petitioner No. 2 Vinod Nagpal, had occupied the said premises as a displaced person from Pakistan and he was said to be the tenant of the Custodian at the rental of Rs. 25.00 per mensem since 1948 or 1949. Admittedly, this property was sold by the Government to one Madan Lal and Madan Lal had sold this property to the respondent-landlord vide sale deed dated September 30, 1977, copy of which is Ex.AW1/ 1.So by operation of law Inder Nath Nagpal became tenant admittedly under the respondent landlord on same terms and conditions on which he was holding the premises under Custodian. No fresh contract of tenancy had taken place between Inder the Nagpal and the subsequent purchasers including the respondent-landlord. It was pleaded in the eviction petition itself that the premises in question comprising of three rooms, verandah, latrine and bath on the first floor and a wooden rooms with open place on the second floor and house No.1557("), Church Road Kashmere Gate, Delhi, stood let out to Inder Nath Nagpal for residential purposes. In the written statement it was pleaded that in fact, the premises are residential-cum-commercial and from the very inception of the tenancy Inder Nath Nagpal had been using the said premises for having his office of his Cafe business besides using the premises for residential purposes. It was pleaded that the premises are still being used for the said office purposes of the said Cafe and a school in the name of Rama krishna Sewa Ashram was also being run for giving tutorial in the premises in question from the very inception of the tenancy and the same have been also used for running a homoeopathic dispensary. It was contended by Mr. L.R. Gupta, senior counsel for the respondentlandlord. that in whole of the written statement there was no specific clear denial of the avernment made in the eviction petition the premises had been let out to Inder Nath Nagpal in the beginning for residential purpose only. He has vehemently argued that in absence of any specific denial of this particular averment in the written statement it should be inferred that there is an implied admission in the written statement that premises had been let out for residential purpose only. On the other hand, counsel for the petitioners has argued that reading the whole of the written statement should lead to an inference that the petitioners had set up the plea that the premises had not been let out for residential purposes only when they plead that the premises are residential-cum-commercial and have been used for said composite purposes from the very inception of the tenancy, if the pleadings are to be strictly construed, then is merit in the contention raised by the learned counsel for the respondent-landlord. It has been held in Ration Lal v. Vardesh Chander & Others, (1976) 8 Rcr 355, that in rent control proceedings the pleadings are not to be construed strictly So. I would construe the written statement to hold that in facts, the petitioners have controverter the plea of the respondent-landlord that premises had been let out for residential purposes only.

(4) It is, no doubt, well settled that in order to obtain an eviction order on the ground of eviction covered by clause (e) of sub-section (1) of Section 40 of the Delhi Rent Control Act, the landlord has to plead and prove all the ingredients which go to constitute the ground of eviction and one of the most important ingredients which is bound to be alleged and proved by the landlord for succeeding on this ground of eviction is that the premises had been let out to the tenant for residential purposes only. This jurisdictional pre-requisite for obtaining an order of eviction on this ground. Counsel for the petitioners has vehemently argued that no proper evidence has been led by the respondent for proving this essential ingredient. He has pointed out that AW1 Vinod Kumar, respondent-landlord, AW2 Krishnan "Chawla, a neighbour and AW3 Pradeep Behl, cousin brother of the respondent, admittedly had no personal knowledge regarding the terms of tenancy settled between Inder Nath Nagpal and the Custodian. Hence their statements would be of no use to prove the initial letting purpose of the demised premises. He has vehemently argued that the record of the Custodian which could possibly show the terms of the tenancy settled between the tenant and the Managing Officer has not been got produced and it is not also proved by the respondent-landlord that no such record is in existence showing the letting purpose. Hence, adverse inference should have been drawn against the landlord that if such record had been produced the same would have shown that the premises have not been let out for residential purpose only. There is fallacy in this contention. After all, unless and until it is shown in evidence that the record of the Custodian contains some document showing the letting purpose of the demised premises no adverse inference can be drawn against the respondent for non-production of such a record because the petitioners also did not in their evidence made any categorical statement that in the record of the Custodian any such document containing the letting purpose exists; rather the petitioners had summoned the record of the Custodian while PW2 Smt. Sita Nagpal was being examined as she was to prove two documents Exs. RW2/1 & RW2/2 from the said record. In case there was available any other document showing the letting purpose in the said record, the petitioners would not have failed to prove that document also in this case. So, it would be inferred that in fact there was no document available in the record of the Custodian showing the letting purpose of demised premises I would refer to documentary evidence led by both the parties with a view to show as to what could be the letting purpose of demised premises a bit later and at first I may make it clear that it is well established now that in absence of any document of letting purpose or any other evidence showing the settlement of the terms letting purpose the parties can prove the letting purpose by leading evidence to show the nature of the premises, nature of locality where the premises are located and the dominant user to which the premises have been put. In K.P.N. Khanna v. T.P. Bolkani, 1971 Rcj (SN) 29, Prakash Narain, J. (As His Lordship then was) had observed that if there is no document of lease than other facts to be seen. The non-commercial or residential premises are those which have been let as a place of dwelling, an expression which normally includes all activities of life of an individual which he performs in his residence like sleeping, eating, meeting friends, entertain etc. and if the premises are so used there can be no doubt that the same are residential premises and have been so let. The premises which are used for business, trade or profession exclusively cannot be termed as residential buildings. It sometimes does happen that a person may carry on even his trade or business or profession in his residential house. In that case what has to be seen is as to what is the predominant purpose for which the building is used. Similarly in Chander Bhan Aggarwal v. Nar Singh Dass & Another, 1975 Rcj 585. H.L. Anand, J., while dealing with the ground of eviction covered by clause (h) which also requires the landlord to establish a jurisdictional pre-requisite that the demised premises stand let out for residential purspose, it was opined that one of the conditions is that the premises had been let out for residential purpose and the onus to prove the purpose of initial letting was on the landlord, which has by no means, been discharged because the landlord has not produced any document touching the question as to the purpose of initial letting and no material has been placed on the record by the tenant either except a vague statement that he intended to do some business at some stage. It was held that in the absence of any material therefore, it would be relevant to consider the nature of the premises, the locality in which it is situated and the purpose to which it has so far been put and on application of these tests, the question whether the premises were let out for residential purpose must be answered. Same principles were enunciated in Sh. Joginder Singh v. Smt. Uma Vati, 1986(1) Rcr 623 and M, Mohan v. Smt. Maheshwari Seth, 1987(1) Rcr 334.

(5) Even if the landlord-respondent in the present case has not been able to lead any evidence the prove the actual terms of tenancy settled between the tenant and the Custodian, the landlord is not debarred legally from proving the letting purpose from the circumstances of the nature indicated in the aforesaid four judgments of this Court. It is in this context that the judgment of the Additional Rent Controller has to be seen because the Additional Rent Controller bad examined the evidence led on the record by both the parties to see whether the premises in question had been used for composite purposes or not. Admittedly, the premises in question were being used for residential purpose by the tenants from the very inception of the tenancy. The crucial question was whether the said premises had been used for any other purpose or not and if so, what was the extent of the premises which have been used for said other purpose. In the written statement the petitioners did not say that any particular portion of the demised premises had been exclusively earmarked for user fore a purpose other than residential. The plea taken is that demised premises had been used for composite purpose from the very inception of the tenancy So, it is clear that every part of the demised premises had been used for residential purpose and some premises have been used for some purposes other than residential also. The landlord proved on record Ex. AWI/2, a certified copy of the survey report made by the official of the Custodian Ex. AWI/3 a certificate from the inspection register pertaining to house-tax of the Municipal Corporation of Delhi. These documents were exhibited in evidence without any objection being raised by the petitioners with regard to mode of proof. So, no contention can be allowed to be raised at this stage that these documents were not properly proved. The survey report of the Custodian shows that the property in question is described as municipal house No. 1/1557. The accommodation shown is two rooms besides kitchen and the name of occupant is shown is Inder Nath, in respect of class of accommodation in column 7 no entry has been made, and eight family members are shown living in the said accommodation since October 1947 and in column 15 the occupation of occupant is shown as Proprietor, Carlton Cafe. It is not possible to agree with the contention of the learned counsel for the petitioners that column 15 would describe the nature of the premises. Column 15 mentions about description of present occupation i.e. business, service (Govt. or Private) or other avocation. A bare reading of this column indicates that it pertains to the avocation of the occupant and not with regard to the nature of the premises. It is true that in the survey report there is no indication given regarding the user of the premises yet the fact remains that eight family members of the tenant are stated to be living in the said small accommodation. There were initially perhaps two rooms and later on by putting some partition a third room had been brought into existence in the same premises. The said small accommodation was hardly sufficient for proper residence of such a large number of family members. A bare perusal of this document shows that dominant user of the premises in question was residential. It is not disputed before me that some portions of this building on the ground floor are being used for commercial purposes and the locality where the building is situated is not exclusively residential. So in the present case the dominant user of the demised premises would be indicative of the letting purpose. Document Ex. AWI/3 shows that the premises in occupation of Smt. Sita Nagpal are residential in the column meant for showing the nature of the premises abbreviations "Corn" and "Res." have been used. Counsel fur the petitioners has vehemently argued that is no evidence led by the landlord to prove as to what these abbreviations mean. I do not think that any evidence was required to show the meaning of these abbreviations which are used so commonly in such like documents scrutinised in courts many a times and these abbreviations are quite indicative of the nature of the user of the building. The house-tax entries were made in the year 1972 showing that portion in possession of the petitioners is residential. Be that as it may, it is clear from the evidence that in fact, no portion of the demised premises was exclusively used for commercial purpose. That was not the case set up either in the written statement or suggested in cross-examination of the witnesses of the landlord-respondent Vinod Nagpal coming as RW1, Sita Nagpal coming as RW2and Deepak Nagpal coming as RW3 did not at all state on oath that any particular portion of the demised premises was exclusively used for any commercial purposes. It is only RW4 M.N. Gupta, an accountant of Carlton Cafe who for the first time came out with the new fact that front room was being used for office purpose. No credence could be given to such an afterthought story set up by RW4 for the first time. He could not possibly be believed on this aspect of the matter when the petitioners Rw I &RW2 themselves did not state any such fact. The petitioners have taken some inconsistent pleas with regard to the period up to which the premises were used for office purposes of Carlton Cafe of which Inder Nath Nagpal was recorded as Proprietor in the survey report of Custodian but, but it has come out in the statement of RW3 that he was one of the partners of that business but nothing has come out in evidence to show when this partnership business came into existence and up to which date the sole proprietorship business continued. Be that as it, may, I may mention that in crossexamination of AW1 (landlord) it was suggested that the office of Carlton Cafeteria continued in the premises in question up to January 31, 1985 and the said School for giving tuition to the students was run in the premises from 1949 for six years and thereafter the premises had been used for running homoeopathic dispensary. Vinod Nagpal coming as RW1 stated that his father used the demised premises for purposes of office during his life time and his father died in November 1962 and thereafter his mother started Using the premises for running a school and and homoeopathic dispensary. This statement is totally in contradiction with the suggestion given to AW1 in cross-examination. According to the suggestion given to AWI. the office of the said business continued till January 1985 which the school was run by Sita Nagpal only up to 1955, So, while Vinod has stated that she started the school only after death of Inder Nath in November 1962, it is not out of place to mention that no student or students' parents had been examined who might have got education from Sita Nagpal in the demised premises. No patient has been examined who could say that he had taken any homoeopathic treatment while visiting the demised premises. Sita Nagpal coming as RW2 came up with a different story by deposing that her husband was wine-merchant and he used the premises for his office although she also deposed that office of the Carlton Cafe was also there in the demised premises, in but she did not say how long that office contiuned. She in examination-in-chief also did not say at what point of time she started giving tuitions in the demised premises. RW3, who claims to be partner of Carlton Cafe, deposed that office of the said Cafe was being run in the premises in question from the very beginning and till 1962 when Inder Nath died. He does not say in examination-in-chief that any other commercial activity was carried on in the demised premises at any time. RW4, the accountant of Carlton Cafe, also deposed that office of the said Cafe was being run in the demised premises. As already noticed above, he made an improvement from the case of the tenants by deposing that one front room was being used for office purposes. It is pertinent to mention that he has not deposed in examination-in-chief that any other commercial activity was being done in the demised premises by giving tuition to the students and giving any homoeopathic treatment to any patient.In the cross-examination, he stated that only account books used to be written in the demised premises and some records used to be kept there. So, the demised premises were not being used as a sort of regular office by Inder Nath at any time. Mere fact that some account books were being written in the demised premises would not lead to an inference that any commercial activity was being carried on in the demised premises. It is not uncommon for businessmen living in their houses bringing the account books to their houses for writing down the entries. That would not make their residential accommodation into commercial one.

(6) The petitioners had placed reliance on Ex. RW2/1, a copy of the application given by Sita Nagpal in 1963 for getting her name mutated in the records of the Managing Officer as tenant in place of her deceased husband Inder Nath Nagpal. In this application, it was mentioned by her that her husband was partly using the said two rooms accommodation as office of Carlton Cafe and partly for residence. On the basis of this application, the Managing Officer mutated the name of Sita Nagpal in place of Inder Nath Nagpal as tenant and Ex. 2/2 is the copy of the said order of Managing Officer. However, in this order made by the Managing Officer, it is not mentioned that the tenancy is being given or was given earlier to deceased Inder Nath Nagpal for commercial purposes as well. Only the factum of user of demised premises for composite purposes was highlighted in the letter by Sita Nagpal which fact at the most was not controverter by the Managing Officer while mutating her name in the records as tenant of the premises in question. Counsel for the petitioners has argued that at least this letter shows that there had been long user of the demised premises for composite purposes .from the very inception of the tenancy by the predecessor-in-interest of the petitioners which should lead to an inference that the letting purpose of the premises was composite from the very beginning. He has argued that the Managing Officer, in whose sleeps the respondent had come, had accepted the application of Sita Nagpal for being substituted as tenant in place of her deceased husband after knowing the factum that the demised premises had been used for composite purposes from the very inception of the tenancy and the respondent-landlord should be considered bound by the privy between the Managing Officer and Sita Nagpal evident from the contents of the above two documents. It is to be remembered that the Managing Officer had not, while mutating the name of Sita Nagpal as tenant, given consent that the premises in question should be deemed to be let out for composite purposes It was not mentioned in the letter by Sita Nagpal that even after the death of her husband, the premises have been used for composite purposes. Mere fact the earlier her husband bad used the premises for composite purposes and this fact is brought to the notice of the Managing Office does not mean that the Managing Officer was being apprised of the fact that premises had been let out from the very beginning for composite purposes. At the most the only inference could be drawn from the contents of this letter is that the premises had been used for composite purposes by Sita Nagpal's husband and the Managing Officer did not think it advisable to take any action on this part of the averment made in this application. There was no fact mentioned in this application that the premises had been let out to Inder Nath Nagpal by the Custodian or Managing Officer for composite purposes. There is no prayer made in this application that the premises should be allowed to be used for composite purposes. So, it cannot be concluded from the contents of this letter that the premises initially stood let out to Inder Nath for composite purposes. I, hence, confirm the finding of the Additional Rent Controller that the premises have been proved to have been let out for residential purposes only. Point No. 2.

(7) It is now conceded before me by the learned cousel for the petitioners that at the time the previous eviction petition on the same ground was filed and the same was dismissed in default, the five years period had not elapsed from the date of the purchase of the property by the landlord-respondent. So, in law the ground of bonafide requirement of residence covered by clause (e) was not available to the respondent-landlord at the time the previous eviction petition was filed and was dismissed in default under Order Ix Rule 8 of the Code of Civil Procedure. So, that order dismissing the petition in default cannot operate as res judicata. The cause of action for filing the eviction petition on this particular ground was not available to the landlord-respondent at the time the previous eviction petition was dismissed in default. Hence, the Additional Rent Controller rightly held that the present eviction petition is not barred either under Order Ix Rule 9 of the Code of Civil Procedure or by any other provision of law. It is obvious that no decision on merits was given in the previous eviction petition dismissed in default and thus, the said order of dismissal does not operate as res judicata whatsoever. J negative this point as well Point No. 3.

(8) The respondent-landlord has pleaded that he is living in the present premises given to him by his brother and he has no legal right to live in the said premises and his brother has also required him to vacate the said premises. Smt. Sita Nagpal, RW2, in cross-examination admitted clearly that the respondent-landlord is living in the house belonging to hi s brother. So, the petitioners cannot now be allowed to contend that the respondent- landlord ought to have produced on record documentary evidence to show that the house where the respondent-landlord is living belongs to his brother exclusively. Although the respondent-landlord in this particular civil revision has filed on record certified copy of the sale certificate issued in the name of his brother in respect of the said house showing that his brother is the owner of the said house. An affidavit of the father has been filed who claims to be attorney of the respondent's brother mentioning that the said house stands in the name of his son Ramesh in the record of the Corporation as well. An application had been moved (C.M. 312/88) by the petitioners seeking to produce on record a copy of the record of the Municipal Corporation of the years 1987-88 pertaining to the said house showing that Ramesh & others are mentioned as owners of that house.Ido not think that this particular copy of the house-tax record would serve any purpose when it is not the case of the petitioners that the title deed of the house stands in the name of any other person except Ramesh in respect of the side house. So, even if any clerical mistake has been made in the house-tax record that would not serve the interest of the petitioners and would not lead to an inference that respondent-landlord has any interest in the said house belonging ' to his brother Ramesh. There is a clear admission of one of the petitioners in cross-examination that the said house belongs to respondent's brother. I dismiss the application seeking permission to lead additional evidence.

(9) It has been argued by the learned counsel for the petitioners that the respondent-landlord had not examined his brother to prove that his brother had asked the respondent to vacate his house and so, it should be inferred that there is no such need for the respondent-landlord to vacate the house of his brother. However, it is evident that the respondent has no legal right to live in the house belonging to his brother. It has been held in Smt. Prativa Devi v. T.V. Krishnan, , that before a particular premises could be deemed to be available to the landlord for his own residence, it must be proved that the landlord has a legal right to occupy the said premises. Even if it is to be held that respondent's brother has not impressed upon the respondent to vacate his house, even then it cannot be held that respondent has any legal right to continue to occupy the premises belonging to his brother. So, I, hold that the respondent- landlord bonafide requires the demised premises for occupation for residence for himself and for his family members dependent upon him and he is not in possession of any other reasonably suitable residential accommodation.

(10) I find no merit in this civil revision which I hereby dismiss, but I grant one month's time to the petitioners for vacating the premises. The parties are left to bear their own costs.