Khairul Nissan vs Tufail Ahmed
1993 Latest Caselaw 438 Del

JUDGMENT

D.K. Jain, J.

(1) This appeal under section 39 of the Delhi Rent Control Act, 1958 (hereinafter referred to as the Act), is directed against the order dated 04 February 1978 of the Rent Control Tribunal, Delhi, reversing the order dated 24 September 1974 of the Addl. Rent Controller, Delhi and dismissing the appellant/landlady's (hereinafter referred to as the landlady) petition under section 14(l)(e) of the Act on the ground that the premises in question were not let out for residential purposes only but for residential-cum-commercial purposes.

(2) MST. Khairul Nissan daughter of late Mr. Haji Mumtazuddin, the landlady, filed a petition under section 14(l)(e) of the Act against Mr. Tufail Ahmed, respondent/tenant (hereinafter referred to as the tenant) for his eviction from the premises, comprising of the entire first floor of the house No.5403, Kucha Rehman,Chandni Chowk, Delhi on the ground of non-payment of rent and bona fide requirement of the landlady, pleading that the premises in question had been let out by her father Haji Mumtazuddin to the tenant for residential purposes only, she was the owner and that the tenant be evicted. Arrears were paid and the eviction petition was contested by the tenant, denying that the landlady was the owner or that the premises had been let out only for residential purposes or that she bona fide required it for her or her family's residence. It was stated that the premises were let out for residential-cum-commercial purposes.

(3) After recording evidence, the learned Addl. Rent Controller found that the landlady was the owner of the premises in question, which were let out only for residential purposes and she required the premises bona fide for her and her family's residence. He, accordingly, passed an order of eviction of the tenant. On appeal, the learned Rent Control Tribunal confirmed the Rent Controller's findings that the landlady was the owner of the premises and she needed it for her and her family's residence, as the same were not contested by the tenant. However, the learned Tribunal upset the finding of the Rent Controller regarding the letting purpose, as found. Accordingly, tenant's appeal was accepted and the order of the Rent Controller was modified to the extent that the eviction petition was dismissed with regard to the ground of bona fide requirement.

(4) In the present appeal, the finding of the Rent Control Tribunal regarding letting purpose is assailed and it is submitted that the said finding is based on misinterpretation of the documents produced by the landlady and the evidence adduced by her.

(5) Though served, there has been no appearance on behalf of the tenant. Mr. Mohd. Ahmed, learned counsel for the landlady, has taken me through the evidence and has strenously argued that the letting purpose was residential only. For it, he has heavily relied on the description of the premises in the two rent notes, Ex.A-6, dated 14September 1949 and Ex.A-5,dated 14 August 1950, wherein the premises let out are described,in the first rent note to be two rooms "Minjumla Balakhana" and in the second as "Balakhana" in the house in question. He has further relied on the use of the word "Abad in the said rent notes and has urged that "Balakhana" are residential structures and the word "Abad used in the rent notes clearly indicates that the premises had been let out for residential purposes only. Learned counsel has further sought support from the admissions in the statements ofRW4, Mr. Abad Hussain, RW5, Mr. Ahmed Sayeed and RW6, Mr. Salamat to show that the structural nature of the premises is residential and there are residential houses in the neighborhood. He maintains that this would show that the premises were meant and let out for residential purposes only and the learned Tribunal having found that the pre- dominant user of the premises in question was residential, gravely erred in holding that the letting purpose was residential-cum-commercial.

(6) I do not agree. The learned Tribunal has in the impugned order lucidly dealt with the point at issue and has marshalled the evidence to come to the finding it did. The inference sought to be drawn by the learned counsel from the use of the words "Balakhana" and "Abad" to contend that it necessarily means that the letting purpose was residential,I feels misconceived. The word"Balakhana"literallymeans"anupperroom or an upper storey or a balcony" as distinguished from the ground floor of the house. The word "Abad" simply implies "inhabited or occupied" which is opposite to barren or vacant. The use of these terms in the rent notes wherein the specific letting purpose is not mentioned as residential, in my view, would not make the premises residential only or necessarily mean that the structure on the first floor, in occupation of the tenant, is not let out for commercial purposes. The onus to prove the letting purpose as residential, in her petition under section 14(l)(e) of the Act was on the landlady and she has failed to discharge it. The finding of the learned Tribunal is based on strong, cogent and reliable evidence. It further finds support from the last rent note, Ex.A-4, dated 20 May 1954, wherein the premises let out are described as three adjoining "Pewasta" rooms No.5403. The words "Balakhana" or "Abad" do not occur in this rent note, which is under operation and was executed in suppression to the earlier two rent notes, referred to hereinabove. The oral evidence and the documentary evidence produced by the tenant comprising the statements of the witnesses from the office of the Labour Commissioner, Sales-tax Office, neighbours, customers and technician who had been repairing the machinery of the tenant in the premises wherein the tenant had been carrying on the business of manufacture of caps and hats under the name and style of "Prem Hat House" abundantly proves that the premises in question were used for commercial purposes. In my view the nature of the structure of the premises as residential or that these are situated in the residential area would not change the letting purpose, found by the learned Tribunal.

(7) I have no hesitation in confirming the finding of the learned Tribunal that the premises in question were let out for residential-cum-commercial purpose.

(8) No other ground is pressed. There is no merit in the appeal and the same is accordingly dismissed. Since no one has appeared on behalf of the tenant, there will be no order as to costs.