Girish Chand Gupta vs D.D. Aggarwal
1991 Latest Caselaw 519 Del

JUDGMENT

S.C. Jain, J.

(1) This is second appeal filed against the judgment passed by the Rent Control Tribunal on 26.3.91, v/hereby' he confirmed the order of the Addl. Rent Controller dated 1.2.90 and dismissed the appeal of the tenant. In brief, the facts of the case are that Shri D.D. Aggarwal, hereinafter referred to as the respondent filed a petition for eviction under Section 14(l)(h) of the Delhi Rent Control Act alleging that he had let out the premises T-24, Green Park Extn., New Delhi to Girish Chand, appellant for residential purpose only on a monthly rent of Rs. 550.00 and that the appellant tenant had been allotted flat No-155, first floor Ashok Vihar Phase Iv in category Ii Sfs, by D.D.A. Both the Courts below have relied upon the oral as well as documentary evidence and concurrently held that the appellant was the tenant and the purpose of letting was residential and that the appellant-tenant has acquired possession of flat No. 155 first floor, Ashok Vihar Phase Iv which has been allotted by the DDA. The contentions raised by the appellant tenant are that the purpose of letting was residential-cum commercial and that besides him, his wife Usha Gupta was also tenant and acquisition of flat No. 155 was benami in his name, though his minor daughter is the owner. Rate of rent has not been disputed but it is alleged that Rs. 350.00 which he used to pay by cheque was his share and Rs. 200.00 - which used to be paid in cash was the share of rent which was paid by his wife Usha Gupta.

(2) Aggrieved by the order of the Tribunal, this second appeal, has been filed. It is settled law as has been laid down by the Supreme Court in the case of Vinod Kumarv. Ajit Singh, 1969 Rcr 181, that in the second appeal under Section 39 of the Delhi Rent Control Act, the High Court is not competent to reassess the facts adduced before the Rent Control Tribunal. On the question of fact the High Court is bound by the order of the Tribunal. In this case, it has to be seen whether any substantial question of law arises or is it the reassessment of facts which have been concurrently decided by both the Courts below.

(3) Regarding the purpose of letting it is not disputed that the tenancy was created for the first time in 1973. No documentary evidence has been produced on behalf of the appellant tenant that at the time of creation of initial tenancy it was also intended that the premises would be used for commercial purpose as well. From 1973 to 1979 there is no evidence worth the name that the permises were used for commercial purpose. It was in 1979 that some documents like sale tax number has been obtained by the wife of the appellant tenant for running some business or that some bank account has been opened. The documents were not produced. Even if these documents are there it cannot be said that the purpose of letting was commercial which was created in 1973. No question of law is involved. I do not find any ground to interfere in the finding of both the Courts below in this regard.

(4) Regarding the plea that the tenancy was in the joint name of the appellant and his wife Usha Gupta, both the Courts have concurrently held that the appellant is the only tenant and Usha Gupta had nothing to do with it. No document has been produced to show that she was also tenant. Rather, at the time of arguments, the Counsel for the appellant has tried to show that Rs. 350.00 was being paid by the appellant and Rs. 200/ was paid by the wife and as such both are tenants, whereas in the written statement it has been specifically mentioned that both are tenants and there is no bifurcation of the rent. Both the Courts below have correctly appreciated the facts and evidence and held that Smt. Usha Gupta was not tenant in the disputed premises. I do not find any ground to interfere in this finding of the Courts below.

(5) Regarding the acquisition of flat No. 155 Ashok Vihar in the name of the appellant-tenant, it is not disputed that the flat was allotted in his name. The plea that he was benami owner of the flat and in fact his minor daughter was the owner of the said flat was rightly disbelieved by the Courts below. After coming into effect of the Prohibition of Benami Transaction Act, benami owners are the real owner in the eys of law. Even otherwise there is nothing on record to show and prove that the flat was purchased out of the money belonging to the minor daughter. Though it has been argued that this flat stands transferred in the name of the minor, it does not help the tenant in the present circumstances of the case. Fact remains that this tenant has acquired alternative accommodation, namely, flat No. 155, Ashok vihar Phase Iv, New Delhi. Much stress has been laid by the Counsel for the appellant that rent receipt Ex. Aw 1/1 is forged and fabricated one. He drew my attention towards para 6 of the judgment passed by the tribunal. According to him, the tribunal was not definite about the genuineness of the rent receipt and, therefore, it raised substantial question of law. The tenant has been charging his stand from time to time. When this rent receipt was produced in the Court, the parties were called upon to admit or deny the.documents. The appellant denied his signature on this receipt . Later on he, tried to develop his case by saying that the original receipt was executed and his signatures were obtained on that receipt but the receipt has been changed and his signatures have been misused by fabricating this receipt. A party cannot be allowed to change his stand from time to time and the fact remains that the receipt Ex. AW1/1 stands proved on record. I find no ground to interfere in the findings of the Courts below. If Ex. Aw I/I is excluded, on the basis of the other evidence which the Courts below have taken into account the appellant has no case even for admission. In these circumstances, this appeal is dismissed at the admission stage itself. I assess Rs. 1000.00 as Counsel fee.