Amrita Gopal Singh And Ors. vs Valaiti Ram Jaishi Ram
1991 Latest Caselaw 35 Del

JUDGMENT

N.N. Goswamy, J.

(1) This revision petition under section 25B(8) of the Delhi Rent Control Act, hereinafter called 'the Act', by the owner-landlords is directed against the judgment and order dated 1.5.1989 passed by the Additional Rent Controller, Delhi whereby their eviction petition under section 14(i)(e) read with section 25B of the Act was dismissed on the short ground that the letting purpose was residential-cum-commercial.

(2) The original eviction petition was filed by Shri Gopal Singh in 1982 Soon after filing of the petition the said Shri Gopal Singh died and the petition was amended wherein his legal representatives were also brought on record Paragraph 18(a) of the amended petition reads as under : "That the premises in suit was let to the respondent for the residence and the petitioners who are the owners and landlord of the premises in suit bona-fide requires the same for occupation as residence for themselves and for members of their families dependent upon them and the petitioners have got no other reasonably suitable residential accommodation with them. The petitioners along with their family members are residing in a rented house bearing No. C-47 Pamposh Enclave, Ground Floor, Greater Kailash, New Delhi. The landlord of the said house bearing No. C-47, Pamposh Enclave Greater Kailash, New Delhi filed the eviction petition against th' petitioners and the decree for eviction had been passed against the petitioners by the Court of Shri D.S. Sidhu, Addl. Rent Controller Delhi vide judgment dated 22.1.1982 and the appeal against that judgment was also dismissed by the court of Rent Control Tribunal Delhi granting 2 years time to the petitioners to vacate the said premises up to 10.2.85. Thus the petitioners are facing a decree for eviction of the tenanted premises where the petitioners are at present residing along with their family members and two years time has bee granted to the petitioners to vacate the said premises by the order dated 10.2.83. The petitioners have got no other house of their own excepting the premises in dispute for themselves and for their family members. The petitioners are facing great hardship because of having no accommodation available with them and because of having decree for eviction passed against them from the tenanted premises The requirement of the petitioners is most bona fide." During the pendency of this petition it has been brought on record that the petitioners had to vacate the premises bearing No. C-47, Pamposh Enclave 496 Greater Kailash, New Delhi and thereafter had shifted to another house and by now have shifted to a third house.

(3) The petition was contested by the respondent firm mainly on the ground that the letting purpose was residencial-cum-commercial and as such the petition had to be dismissed on that ground. However, the bona fide requirements of the petitioners were also disputed and it was pleaded that the premises in question were being used for residencial-cum-commercial purpose since the inception of the tenancy. It was denied that any rent note was executed and according to the respondent the tenancy was oral. It was not disputed that the partner of the respondent firm, namely, Shri J. Mehra was residing in the premises in question with his family.

(4) In order to succeed in a petition under section 14(i)(e) read with section 25B of the Act the petitioners have to prove that they are the owners of the premises, the premises were let for residential purposes and that the requirement of the petitioners is bona fide. As regards the ownership of the premises there is no dispute that the petitioners are the owners of the premises. The only dispute is regarding the letting purpose. In order to appreciate the question on letting purpose it is necessary to look into three clauses of the lease deed, which are clauses 8, 10 and Ii and the same read as under :- Clause 8 : That the lessee shall use the premises for its own use. Clause 10 : That the lessee shall comply with all the Rules and Regulations of the local authorities whatsoever with relation to the demised premises. Clause 11 : That the lessee shall not carry out any structural additions or alterations to the building, layout fittings without the written consent of the Lesser, but have the right to install the domestic electric appliances where-ever and whenever necessary at their own cost and also have the right to remove the same at, the before the time of termination of the lease.

(5) Exactly similar clauses were in question in M/s. Mehra Mehra v. Dr. (Mrs.) Sant Kaur Grewal" 21 (1982) Delhi Law Times 169. A learned Single Judge of this Court while interpreting the aforesaid clauses came to the conclusion that taking into consideration the nature of the property, the use to which it was being put and the intention of the parties it had to be held that the purpose of letting was purely residential and not residential-cum-commercial. There is hardly any difference in the nature of the property as far as the two cases are concerned. The property in the case referred to above was situated in Greater Kailash and in the instant case it is also in Greater Kailash and both the areas are essentially residential areas. In fact during the course of arguments it was not even disputed that the areas are essentially residential. It was also not disputed that the partner of the respondent firm was residing in the premises with his family since the inception of the tenancy. It was sought to be contended that in addition to the residence of the partner the premises were also being used for commercial purposes and in order to prove that assertion one witness, namely, Shri Pratap Singh was produced as RW1. He stated that he was general manager in M/s. Shivial Kaniyalal which was dealing in wholesale cloth business. He deposed that the respondent firm is mainly agent for Shri Digvijay Woollen Mills and he had gone to the premises in question to place order for the cloth. In cross-examination he was unable to tell about she nature of the tenanted premises and all that he stated that he had known only two rooms out of which one was very big and the other was very small beside that he was unable to give the description of the premises and in fact gave a wrong description by saying that it was a double storey house while according to the admitted plan it is a single storey house. The evidence of this witness clearly indicates that he is an interested person and a reading of the evidence does not inspire any confidence. In fact even the Additional Rent Controller has not even referred to his evidence. The only other evidence is of Shri J. Mehra himself who has appeared as RW3. He admitted that he was residing in the premises with his family but stated that business activity was also being carried on from the premises but was unable to produce any document or material to show that any business activity was ever carried on from those premises. In fact it was not disputed that the respondent firm has business premises situated at 6/90 Connaught Circus, New Delhi. The nature of the business is also such which can only be carried on from a shop which the respondent firm has in Connaught Circus, New Delhi. It is not a business which can be carried on from residential premises.

(6) The learned Additional Rent Controller has only relied on clause 8 of the lease deed to show that the premises in question could be used for the purpose of the company which according to the learned Additional Rent Controller meant that the same could be used for commercial purpose also. Reliance was placed by the learned Additional Rent Controller on M/s. Flowmore Private Ltd. v. Keshav Kumar Swarup", 35 (1988) Dlt 242=1988 (2) Rent Control Journal 191. In that case a learned Single Judge of this Court relied on clause 5 of the lease deed and came to the conclusion that the letting purpose was residencial-cum-commercial. Clause 5 in that lease deed was to the following effect: "5. That the lessee shall use the premises for the residence and personal use of Directors and or their relatives and for the purpose of the Company".

The clause itself indicates that it could be used for residence and for other purpose of the company which means the commercial purpose also. However, in the case before me the clause is limited and the lease deed on which reliance has been placed, though the lease deed was not exhibited, was signed by Shri J. Mehra on behalf of the lessee and as such the words used are turn its own purpose'. Clause 8 of the lease deed cannot be read in isolation and it has to be read with the other clauses, namely, clauses 10 and Ii of the deed. Reading the three clauses together there can be no escape from the conclusion that the intention of the parties was that the premises had to be used for residential purpose only. In fact I am in respectful agreement with the interpretation of the said clauses in M/s. Mehra Mehra referred to above.

(7) As regards the bona fide requirements of the petitioners, though the learned Additional Rent Controller has recorded no finding but there can be no dispute that the requirement is bona fide. In fact in the statement of the respondent it was not disputed that an eviction decree had been passed against the petitioners and the further facts brought out in the application to the effect that the petitioners had to shift from that house to another and now to a third house were also not disputed. The present house occupied by the petitioners is of two bed rooms, which accommodation is .highly insufficient for the family beside the fact that they have to pay a high rent for rented premises and are deprived of their own house. In these circumstances the requirement of the petitioners is bona fide.

(8) For the reasons recorded above this petition is allowed and the impugned order passed by the learned Additional Rent Controller is set aside. The eviction order is passed against the respondent. The respondent will have the statutory period of six months to hand over vacant possession of the premises in question. The petitioners will also be entitled to costs of the petition. Counsel fee Rs. 500.00 .