Vidya Prakash Chopra vs Khushiram
1990 Latest Caselaw 501 Del

JUDGMENT

Sunanda Bhandare, J.

(1) This revision petition is directed against the order of the Addl. Rent Controller, Delhi dated 16th April, 1989 whereby the eviction petition filed by the respondent under Section 14(1)(e) read with Section 25-B of the Delhi Rent Control Act was allowed and an eviction order was passed against the petitioner. The brief facts are as follows :

(2) Premises bearing No. 17-A/20 W.E.A. Karol Bagh, New Delhi were originally owned by M/s Rehman Ilahi, Rehmat Ilahi and were let out to the brother of the petitioner Shri S.N.Chopra. The said premises were purchased by the respondent by a sale deed dated 13th December, 1977. According to the petitioner, the premises were let out by the original landlord for residential-cum commercial purposes in the year 1963 for the family business of the petitioner's family in the name of Hindustan Publishing House. Shri S.P. Chopra separated from the family in the year 1963 and the premises were let out to the petitioner by the original landlord again for residential-cum-commercial purpose. The petitioner started the business from the said premises in the name of Associate Ad-aqueous Amonia in the year 1967. Thereafter he started another business as an Export Consultant for products relating to Chemical industries in the name of Business Booster Group. The respondent filed the eviction petition against the petitioner on the ground that the premises were required by him bona fide for his use and use of his family members which consisted of himself, his wife his three married sons, their wives, three grand children, two grown up unmarried sons and a daughter Miss Usha Rani aged 17 years. Apart from this the respondent also stated in the petition that his brother Shri Prabhu Dayal also occasionally comes to stay with him. The respondent stated that the present accommodation in his possession which consisted of four rooms, two kitchens, two latrines on the first floor and a barsati on the second floor wag not sufficient for him and his family members dependent on him. The petitioner herein filed an application for leave to defend under Section 25-B(4) of the Delhi Rent Control Act which was allowed by order dated 28th March 1983. There- after he also moved an application under Order 6, Rule 17 of the Code of Civil Procedure for amendment of the written statement which was also allowed by order dated 24th March 1987. The Addl. Rent Controller, Delhi came to the conclusion that the premises were let out for residential purpose and were not let out for a composite purpose of business-cum-residence, and the premises in occupation of the petitioner were required by the respondent for his bona fide personal use and the use of his family members dependent on him.

(3) No one appeared for the petitioner at the hearing of the revision petition. With the help of the counsel for the respondent I have gone through the record of the case including the grounds of revision and the evidence led by the parties. One of the main grounds on which the petitioner has challenged the impugned order is that the Addl. Rent Controller erred in relying on Rent Note dated 1.6.63 which was sought to be proved by A.W.I i.e., one of the attesting witnesses of the said Rent Note, Mr. Partap Kishan Jaitley, Advocate. This Rent Note was executed by Shri V.P. Chopra, i.e., the petitioner herein in favor of the previous owner. A.W. 1 in his evidence has stated that the petitioner had signed the Rent Note in his presence after reading its contents. The main contention of the petitioner is that since this Rent Note was not registered, which was a requirement under Section 107 of the Transfer of Property Act it was not admissible in evidence and therefore the Rent Controller erred in relying on this Rent Note while coming to the conclusion that the premises were let out for residential purpose alone. Learned counsel for the respondent submitted that since the Rent Note is a unilateral document signed by the petitioner Section 107 of the Transfer of Property Act and Section 17 of the Registration Act are not applicable. He further submitted that even if the said Rent Note was required to be registered even then the contents of the Rent Note could be looked into. He relied on the judgments of this Court in Pravin S.Shah v. Govind K. Sharma: reported as 1974 Raj. L.R. 128, M/s Rai & Sons (Pvt.) Lid. & Ors. v. M/s Phelps and Co. Pvt. Ltd., reported as 1989 (1) Rcr 590=38 (1989^ w Imtiaz Ali v. Nasim Ahmed: in support of his contention.

(4) In the two judgments cited by the learned counsel for the respondent it is held that if the clause relied on was not an essential ingredient of the lease deed as defined in Section 105 of the Transfer of Property Act and it was a separable and independent term even though it was incorporated in the agreement of tenancy, that clause could be looked into though lease document required registration.

(5) This Court in Rai & Sons (supra) has observed as follows : "TOme, however, it appears that the controversy as to whether documents Ex. Mark A and Ex. R-21 would require registration is irrelevant. The controversy has been raised by the landlord company so that the court does not look into para 6 of Ex. Mark A and para 7 of Ex. R-21. If these documents require registration then under Section 49 of the Registration Act these would not affect the immovable property comprised therein or be received as evidence of any transaction affecting such property though the same could be used as evidence of any collateral transaction not required to be effected by a registered instrument. Reliance was placed on a decision of this court in Engineering Projects (India) Ltd. .S.K.Malhotra & Am. [1981(1) Rcr 338] to contend that relevant paras of Ex. Mark A and Ex. R-21 could not be looked into. The lease deed in that case required registration and since it was not registered, it was held that under Section 49 of the Registration Act it could not be looked into and so it was held that the clause relating to subletting and parting with possession in the lease deed could not have been proved on record. This judgment may appear to help Mr. Arun Mohan in his argument, but it also appears to me that the effect of the proviso to Section 49 of the Registration Act was not referred to in this judgment. Under this proviso, there is no bar to leading of evidence of any collateral transaction not required to be effected by a registered instrument. Under proviso (b) to sub-section (1) of Section 14 of the Act, a tenant cannot sublet, assign or otherwise part with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord. This provision has overriding effect. A Rent Controller is only to see if there is a consent in writing of the landlord obtained by a tenant and there is no bar that when such a consent in writing is in a document which is compulsorily registrable and is not registered it cannot be looked into. Two earlier decisions of this court on the question of admissibility of an unregistered document were not referred to in the Engineering Projects (India) Ltd. case In M/s Shalimar Tar Products (1935) Ltd. v. H.C. Sharma & Ors. (SAC) No. 294/72, decided on ' 21.9.1973), a learned single judge (B.C. Misra, J.) took the view that both the landlord and the tenant could show from the unregistered deed that the tenant had obtained a written consent of the landlord to sublet the premises. In this case, though the document required registration and was attracting the provision:) of Sec. 49 of the Registration Act, it was held to be admissible in evidence to show consent. In Pravin S. Shah v.Govind K. Sharma etc. (1974 Rlr 128), another learned Single Judge (T.V.R. Tatachari, J., as he then was) was of the view that if consent to sublet was given in an unregistered lease deed requiring registration, the clause about the consent was not inadmissible in evidence if it could be shown that it was a writing simpliciter and not a term of the lease. The Court observed that a term giving permission to the tenant to sublet was by itself not an essential ingredient of a lease as defined in Sec. 105 of the T.P. Act and it had, therefore, to be presumed that it was a separable and independent term even when incorporated in the agreement of tenancy and if at all, it was for the landlord to show that the term was an inseparable one. Thus, whatever the view on the question if Ex. Mark A and Ex. R-21 required registration, paras 6 and 7 in this case can be looked into though I have held that these documents did not require registration."

(6) Similarly in Pravin's case (supra), the Court has held as follows : "...a term giving permission to the tenant to sublet is by itself not an essential ingredient of a lease as defined in Section 105 of the Transfer of Property Act. It has, therefore, to be presumed that it is a separable and independent term even - when incorporated in the agreement of tenancy and, if at all, it is for the landlord to show that the term was an inseparable one. No such attempt was made and not even a question about the separability of the term was put to the tenant R.W. 4 in cross-examination. The tenant R.W. 4 deposed that according to the terms of the agreement he had been authorised by the landlord to sublet the premises in dispute or any portion there of. Having regard to the nature of the term, and in the absence of any thing elicited in the cross-examination to the contrary, it has to be assumed that the term was an independent one unconnected with the other terms of the agreement of tenancy."

(7) Thus even if the rent note was registered (Sic) the clause in the said rent note which specifically states that the premises are let out for purely residential purpose cannot be ignored. Now, assuming for the sake of argument that the rent note cannot be looked into at all even then I find that there is sufficient evidence to show that the premises were let out for residential purpose. This contention is therefore without merit.

(8) The second ground is regarding the bona fide need of the respondent. It is not disputed by the respondent that he has a share in the family house at Nawab Road. It has five small rooms. It is however stated that respondent has three brothers and these brothers with their families live in the family house. A.W. 2 who is the son of the respondent has specifically stated that the demised premises were acquired by the respondent because the accommodation in the family house was not sufficient. The petitioner has not denied the number of family members dependent on the respondent for accommodation. It is also not denied that apart from the family house in Nawab Ganj and the demised premises the respondent does not own any other accommodation. Rather it is now submitted by the learned counsel for the respondent that the petitioner has acquired a plot in Ambica Vihar where he has constructed a flat for himself. Great emphasis has been laid by the petitioner on the point that the respondent has not examined himself.

(9) It is submitted by the learned counsel for the respondent that the respondent landlord could not be examined because be is ailing and he has a psychological problem. It is well settled that the Court has to do objective assessment of the evidence determine whether the landlord bona fide requires the accommodation in the occupation of the tenant or not, even if the landlord does not choose to examine himself. This Court in Uma Rani v. Vinod Kumar Dubey : 21 (1982) , Law Times 199 has observed thus : "There is nothing in the Rent Control Act which suggests that the landlord must step into the witness box. It is open to the landlord to lead any evidence which he chooses in order to substantiate his averments that he bonafide requires the premises for his own residence. A similar objection, of the landlord not appearing in the witness box was also taken before this court in Khurshid Haider & Ors. v. Ms. Zubeda Begum, 15 (1979) Dlt (SN) 233 but without success. In my view, therefore, if the admitted facts on the record show that the need of the landlady was bona fide then she would be entitled to order of eviction even if she has not appeared in the witness box."

(10) This objection of the petitioner-tenant is therefore without any substance.

(11) In the above circumstances, I see no merit in this revision and the same is dismissed. The petitioner is granted one month's time to vacate the premises. No costs.