Baij Nath vs Bhagat Singh And Anr.
1990 Latest Caselaw 537 Del

JUDGMENT

Sunanda Bhandare, J.

(1) This second appeal under Section 39 of the unamended Delhi Rent Control Act, 1958 (hereinafter referred to as the Act) is filed by the appellant-tenant against the order of the Rent Control Tribunal (hereinafter referred to as the Tribunal) dated 12-10-1977. The brief facts are as follows.

(2) The second floor of premises bearing no. 4564, Ward no. XIII. Deputy Ganj, Delhi were let oat to the respondent at a monthly rent of Rs. 43.00 . The respondent filed a petition under Section 14(l)(h) of the Act for eviction for the appellant on the ground that he had acquired another residential house in School Block, Shakarpur Extension, Delhi. The appellant filed his written statement and denied that he bad acquired the premises at Shakarpur Extension. Delhi. He however stated that he had purchased premises in Abadi Malikpur ChhaWani, Civil Lines Delhi. The appellant however contended that the said premises were of commercial nature inasmuch as it consisted of one shop and one room behind the said shop. The appellant, therefore, contended that he had not acquired vacant possession of a residence within the meaning of Section 14(l)(h) of the Act. The respondent, therefore, amended the petition incorporating the plea that the appellant had acquired residential accommodation in Abadi Malikpur Chhawani, Civil Lines, Delhi and, therefore, had disentitled himself to the protection of the Act. The amendment was allowed. The Additional Rent Controller (hereinafter referred to as the Controller) considered the question of acquisition of residence of the appellant in respect of both the above mentioned premises. The Controller came to the conclusion that the accommodation at Malikpur Chhawani, Civil Lines, Delhi is of residential nature consisting of one shop and two rooms Along with open court-yard. The Controller further held that the question of suitability of the said accommodation was not required to be gone into once it was proved that the tenant bad acquired another residence and accordingly he allowed the petition and ordered eviction of the appellant under Section 14(l)(b) of the Act. An appeal was filed by the appellant tenant before the Tribunal. The Tribunal by its impugned order dismissed the appeal. Before the Tribunal it was contended by the tenant that the house located in Abadi Malikpur Chhawani, Civil Lines, Delhi was constructed on land belonging to Municipal Corporation of Delhi (hereinafter referred to as the Corporation) and the Corporation had demolished the said structure because the construction thereon was unauthorised. The appellant, therefore, submitted that since he ceases to be in possession of the said house, he still continues to enjoy the protection under the Act. The Tribunal did not allow the appellant to go beyond the pleadings and observed that the evidence has to be confined on the pleas taken in the pleadings. The Tribunal further observed that the plea that the appellant cannot be said to have acquired another residential house in his own right as be was duped by the previous owner Mohan Singh, could not be raised because no such plea was sought to be taken by amending the written statement. The Tribunal further reiterated that the premises at Malikpur Chhawani, Civil Lines, Delhi were residential premises consisting of one shop and two rooms and open court-yard etc. Being aggrieved by this judgment of the Tribunal, the appellant has filed the present second appeal. Along with the appeal, the appellant has also filed an application (CM 1939/ 77) under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the written statement. In the said application, it is prayed that the appellant be permitted to amend para 18(a)(2) of the written statement urging the ground that the premises at Malikpur Chhawni, Civil Lines, Delhi had been sold by Maman Singh to the appellant by practicing fraud and have since been demolished by the Corporation and are not available for the appellant because he has no right, title or interest in the said property.

(3) It was contended by the learned counsel for the appellant that since the appellant did not have a legal right over the premises acquired by him at Malikpur Chhawani, Civil Lines, Delhi, eviction order cannot be passed under Section 14(l)(h) of the Act. Learned counsel submitted that the premises acquired by the appellant were constructed on the land belonging to the Corporation and the original owner had duped the appellant and be had no right to sell the said property to the appellant. Learned counsel relied on the judgment of this Court in Smt. Asharfi Devi v. Chowdhri Mukh Ram Saini, 1971 Rcj 691, and Smt Revti Devi Kishan Lal, 1970 Rcj 417 and submitted that unless a tenant has a legal right in the property, he cannot be said to have acquired another residence. Learned counsel submitted that if the tenant loses the newly acquired premises became of his voluntary act then he may not be entitled to protection of the court but if he loses the premises because of some involuntary act, then that subsequent event must be taken into consideration. It was next contended that lbe accommodation at Malikpur Chhawni, Civil Lines, Delhi was not suitable for the need of the appellant in as much as the present tenanted premises consists of 7 rooms ; whereas the premises acquired by him was very small and could not accommodate his large family. Learned counsel, therefore, submitted that the courts below ought to have considered the question of suitability before passing the eviction order Learned counsel relied on the judgment of the Supreme Court in Ganpat Ram Sharma & Others v. Smt. Gayatri Devi, 1987 (2) Rcj 253 and submitted that the Supreme Court has observed that the question of suitability is a matter within the special knowledge of the tenant and he must prove and establish those facts and if be does so, no order of eviction can be passed against the tenant. It was next contended that the premises at Malikpur Chhawni, Civil Lines, Delhi are no longer available to the appellant in as much as the premises have been demolished by the Corporation. The subsequent event of demolition of the premises has to be taken into consideration before passing an eviction order under Section 14(l)(b) of the Act. Learned counsel submitted that the Tribunal erred in not allowing the appellant to urge that the original owner had played fraud on the appellant and he was not legally entitled to purchase those premises because the same stood acquired on the ground that this plea was not taken in the written statement.

(4) On the other hand, it was contended by the learned counsel for the respondent that Section 14 of the Act provides protection to the tenants against eviction, however, a landlord can make an application for recovery of possession of the premises on one or more of the grounds mentioned in the said section. Clause (h) of Section 14(1) provides that if the tenant has after the commencement of (he Act acquired vacant possession of, or been allotted, a residence, the landlord can make an application for his eviction. Thus, according to the learned counsel for the respondent, the question of title of the tenant to the newly acquired premises is irrelevant so long as the landlord is able to show that he has acquired premises which can be used by the tenant for his residence. Learned counsel submitted that the premises need not be owned by the tenant but can be also rented or allotted. Learned counsel thus submitted that even if it is accepted for the sake of argument that a fraud was played on the appellant by the original owner of premises at Malikpur Chhawni, Civil Lines. Delhi and he bad no authority to enter into a sale deed with the appellant, even then once the appellant had acquired the premises and got the possession, he immediately lost the protection given under Section 14 of the Act. Learned counsel relied on the judgment of this Court in Indian Cable Co. Limited v. Prem Chandra Sharma, 1989(39) Dlt 87 and submitted that the suitability of the acquired premises is irrelevant. Learned counsel submitted that in any event the onus of proving that the newly acquired premises are not suitable is on the tenant and both the courts below have held that the premises acquired by the tenant were of residential nature. Learned counsel submitted that this Court in Hem Chand Baid v. Prem Wati Parekh, has held that once it is shown that the tenant bad on the date of the application by the landlord acquired another residence, even if subsequently he loses those premises, the position does not change because subsequent facts cannot be taken into account.

(5) I propose to proceed on the basis that the premises acquired and purchased by the appellant were constructed on land acquired by the Corporation or that some sort of fraud was played by the original owner and the appellant was duped in purchasing the said premises. Section 14(l)(h) of the Act reads thus :- "14.Protection of tenant against eviction. (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favor of the landlord against a tenant: Provided that the Controller, may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:- (a) to (g) (h) that the tenant has, whether before or after the commencement of this Act, acquired vacant possession of, or been allotted, a residence."

It is, therefore, clear that if the tenant has acquired vacant possession or has been allotted another residence he forfeits the protection given to him against eviction.

(6) From the plain reading of clause (h) of Section 14(1) of the Act it is clear that for getting an order under section 14(1)(h) of theAct,the landlord does not have to prove that the premises have been purchased or owned or built by the tenant. The words used are "acquired vacant possession of" and not owned or purchased A tenant may acquire possession of residential premises not only by purchase of a house or by building another house bat also by taking it on lease or any other manner. What is important to be seen is whether the tenant has acquired vacant premises by virtue of a right vested in him. Thus if a tenant purchases a house and acquires vacant possession, even if he later on loses the premises because he did not get a clear title he is liable to be evicted under clause (h) of Section 14(1). What is important is that on the day be bought the premises he had acquired vacant possession of residential premises. In other words if the tenant acquires vacant possession of premises in his own name even if the construction is unauthorised, he loses the protection available to him under Section 14 of the Act. No doubt if the tenant does not have a legal right to reside in the premises occupied by him be cannot be evicted under clause (b) of Section 14(1) In Smt. Revti Devi's case (supra) this Court held that the mere occupation of a new residence by the tenant without any legal right to do so would not be covered by clause (h) of Section 14(1) of the Act. The court held that the husband did not have the legal right to stay in the house belonging to his wife because he can be turned out at any time.

(7) In Smt. Asharfi Devi's case (supra) this Court held that the but having been built by the tenant unlawfully and having been demolished thereafter, the ground under Section 14(l)(h) was not available to the landlord because the words "has built" used in Section 14(l)(h) of the Delhi Rent Control Act, 1958 obviously would mean built lawfully and not in contravention of Jaw. The cases cited by the learned counsel for the appellant do not help the appellant. Unlike the case of Smt. Revti Devi (supra) in the present case the appellant had acquired the premises in his own name. Thus, when he got possession of the premises he had the legal right to live in it. No comparison can be drawn from Smt. Asharfi Devi's case (supra) either. By Act 57 of 1988 the word "built" was omitted and now the words used are "acquired vacant possession of, or been allotted a residence". Thus, the question of title of the property is irrelevant as long as it is proved that the tenant has acquired vacant possession of a residence and he has a right to occupy the same. Thus, in my view, even if the premises acquired by the appellant were on land which were acquired by the Corporation so long as he had the vacant possession and the legal right to stay in the said premises till it was demolished he was liable, to be evicted under clause (h) of Section 14 of the Act. That the tenant was cheated by the owner of the building or a fraud was committed by the original owner and the tenant was duped and led into buying a house which was going to be demolished is irrelevant. The words used are "acquired vacant possession". If one reads the words to mean acquired vacant possession in a legally constructed house it would lead to absurdity.

(8) I also find no force in the submission of the learned counsel for the appellant that the suitability of the accomodation acquired by the tenant has to be considered. Once it is proved that the tenant has acquired another residence, that is enough. A Division Bench of this Court in Indian Cable Co's case (supra) has held that for the purpose of clause (h) it is not even relevant whether the acquired property is suitable substitute for the premises let for use a residence. The court has observed that in the old Act 38 of 1952 there used to be word "suitable" before the word "residence". The word "suitable" was omitted when the Act came into force in 1958. Thus, the Legislature has, by omission of the word "suitable" made it clear that suitability has not be considered. The judgment of the Supreme Court in Ganpat Ram's case (supra) was also cited before the Division Bench in Indian Cable Co's case (supra). In any event, the Supreme Court in Ganpat Ram's case (supra) has observed that whether the premises can be really an alternative accommodation for the tenant or not are within the special knowledge of the tenant and he must prove and establish those facts. In the present case the tenant has not pleaded the ground of unsuitability of the acquired premises on account of his large family either in his written statement or in the amendment application filed in this Court.

(9) Learned counsel for the appellant has cited large number of authorities on the question of consideration of subsequent events. However, I find that all the cases cited relate to eviction petitions filed under Section 14(l)(e) of the Act. A Division Bench of this Court in Hem Chand Baid's case (supra) has categorically held that once a default is committed by a tenant as contemplated by clause (b) by building his own house or acquiring alternate accommodation, be cease to enjoy the protection of law permanently and at no point of time under no circumstances, the protection of law is revived. Consequently, the default need not be continuing when the landlord terminates the tenancy on the bases of the default in question. I do not think that the question whether the tenant has lost the newly acquired premises voluntarily or for no fault on his part, is irrelevant. As held by this Court in Hem Chand Baid's case (supra), restrictions and impediments are imposed on a landlord by the Act on the assumption that it is impossible for the tenant to leave the present accommodation to secure another accommodation. These assumptions of non-availability of alternate accomodation are wiped out once the tenant builds his own house or acquires another accomodation Such a tenant is no need of the protection of law There is no rational in continuing the impediment. The Supreme Court has expressed a similar view and has observed in no uncertain terms that the protection of law ceases as soon as the default is committed. Similar view was expressed by the Allahabad High Court in Mohammad Nazir vs. Haji Abdul Shaur, 1976 Rcr 656 while considering a similar provision under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972.

(10) Undoubtedly, when landlord seeks eviction on the ground of bona fide need and subsequently his need ceases, the subsequent event must be taken into account. Eviction under Section 14(l)(e) of the Act can be obtained by a landlord on the ground of his own bona fide personal need, but under Section 14(l)(h) of the Act the need of the landlord has not to be considered and it is the need of the tenant which is considered. Once it is found that the tenant did not need the protection of law because he has acquired another accommodation, the landlord is entitled to get an order of eviction. What is important is the fact of acquisition of residential accommodation by the tenant on the date of the filling of the application. Even if loses the premises at a subsequent date he cannot seek protection under the Act.

(11) In the circumstances, I do not sec any merit in the appeal. Dismissed. The interim order dated 28th October 1977 stands vacated. No costs.

(12) Cm 1939/77 Since the appeal has been disposed of by allowing the plea sought to be urged by the appellant by way of the amendment, this application is infructuous. Dismissed.