Mahla Ram vs Faquir Chand And Ors.
1991 Latest Caselaw 601 Del

JUDGMENT

S.C.Jain J.

(1) This second appeal is filed against the judgment passed by the Rent Control Tribunal on 12-5-1978, whereby he dismissed the appeal filed by the appellant-tenant and allowed the appeal filed by the respondent- landlords and passed an eviction order with respect to the premises in dispute on the ground covered by clause (d) of proviso to sub-Section (1) of Section 14 of the Delhi Rent Control Act.

(2) In brief, the facts of the case are that Faquir Chand and others, hereinafter referred to as the respondents, filed an eviction petition on 8-11-1971 with respect to the suit premises consisting of one room and 'dalan' in building bearing No. 7595, Sui Walan against Mahla Ram, hereinafter referred to as the appellant, on the ground of non-payment of rent non residence for continuous period of six months and on account of his having built or acquired another house in Kucha Neel Kanth. The Rent Controller Delhi vide his order dated 7-1-1974 directed the appellant to deposit i¯ the Court arrears of rent attherateofRs.5.00 per month w.e.f. 10.1.1971 in terms of Section 15(1) of the Delhi Rent Control Act within one month of the date of order and benefit under Section 14(2) of the Delhi Rent Control Act was given to him. Other grounds on which eviction was sought were not accepted by the Rent Controller.

(3) Both the parties challenged the order of the Rent Controller by filing two separate appeals. The Rent Control Tribunal vide his order dated 12-5-78 dismissed the appeal filed by the tenant and allowed the appeal filed by the landlord and passed an eviction order against the tenant on the ground under clause (d) of proviso to sub-section (1) of Section 14 of the Delhi Rent Control Act.

(4) Aggrieved, the tenant has filed this second appeal. In the second appeal the scope is very limited and the matter involving substantial question of law can only be looked into.

(5) In this case the relationship of landlord and tenant is not in disputed. The dispute is with respect to the purpose of letting. According to the appellant, he was tenant in the disputed premises much prior to the respondents becoming owners of this property and he took these premises on rent for commercial purpose and the same have been used as such since then. It is not in dispute that when the respondent became the owner/landlord of this property a fresh rent not Ex. Ax was executed by the appellant-tenant in favor of the respondent. In this rent note, purpose of letting has been specifically mentioned as residential. Initially the appellant-tenant denied the execution of this rent note (Ex. Ax) and denied his thumb impressions on this document. His specimen thumb-marks were sent to C.F.S.L. for comparison with the disputed thumb marks on the rent note Ex. Ax. As per the report of the Director of Cfsl the specimen thumb impression and the disputed thumb impression are of the same person. At this stage the appeallaat, admitted that rent note Ex. AX. was executed by him and he had put his thumb impression and the rent note was read over to him by the scribe and then he thumbmarked the same. On the basis of this evidence available on record, the Rent Control Tribunal came to the conclusion that the 'purpose of letting was residential and not commercial.

(6) Counsel for the appellant-tenant, however, submitted that the appellant-tenant became tenant in the suit premises even before this property was purchased by the respondents showing the purpose of letting as commercial and a rent note was executed and that rent note came in the possession of the respondent, but the respondent did not produce the same in the Court and, therefore, a presumption should be raised against the respondent that the purpose of letting was commercial and not residential. According to him, the initial rent note is the best evidence to prove the purpose of letting and the respondents have intentionally withheld the same raising a presumption against them.

(7) This contention of the learned counsel for the appellant is not acceptable. Shri Faquir Chand, one of the owners, appeared as Aw 1 and he had stated that the tenant had executed a rent note in favor of the previous owner and that rent note is lying with him. Another rent note wan executed when the respondents became owners of the property in dispute. That rent note was produced in evidence and in such circumstances the respondent though that it would be needless to produce the earlier rent note when the subsequent rent note has been proved and exhibited. In case the tenant wanted the production of the earlier rent note, he ought to have given a notice for its production, but he has failed to do so. No adverse inference can be drawn against the landlord for non-production of the previous rent note. The Rent Control Tribunal has correctly appreciated the evidence on record while holding it so. I find no grounds to interfere in the judicious finding of the Rent Control Tribunal which is based on appreciation of facts. The fact remains that the premises were let out to the appellant-tenant for residential purpose only. I find no ground for disturbing the finding of the Rent Control Tribunal on this point.

(8) Regarding non-residing in the premises for more than six months, it has come in the statement of Faquir Chand that the tenant and his family members have not been residing in the suit premises for the last more than 4 years. Even the witnesses examined by the appellant-tenant have not stated that either the appellant or any member of his family is residing in the suit premises. They have only stated that these premises are being used as a godown. From the evidence on record, it is clear that the appellant and his family members had not been residing in the suit premises for more than six months continuously proceeding the filing of the eviction petition. The Rent Control Tribunal has correctly held it so on the basis of appreciation of evidence available on record. Thus the ground of eviction covered under clause (d) of sub Section (1) of Section 14 stands proved.

(9) As far as the ground of non-payment of rent is concerned, Aw 3/3 is a copy of notice dated 30-7-71, which was sent to the tenant by registered Ad post and was served on the tenant on 3-8-71. The arrears of rent were demanded from 10-1-70. Learned counsel for the appellant-tenant has not been able to point out any legal infirmity in the notice sent by the landlords to the tenant. Rather, a reply Ex. Rw 4/1 was sent by the tenant to this notice. On the basis of evidence available on record, the Rent Control Tribunal confirmed the finding of the Rent Controller as far as the arrears of rent was concerned. I find no infirmity or illegality in that order passed by the Courts below on this point and I confirm the findings of the Courts below on the point of arrears of rent.

(10) This second appeal deserves no merit and I hereby dismiss the same and confirm the finding of the Rent Control Tribunal given in the order dated 12-5-78. The appellant tenant shall pay Rs. 500.00 as costs as he has been dragging the matter by taking frivolous grounds.