Mohd. Shafi Bakshi vs Krishna Bansal
1993 Latest Caselaw 429 Del

JUDGMENT

D.K. Jain, J.

(1) This revision petition under section 25B(8) of the Delhi Rent Control Act, 1958 read with sections 115 and 151 CPC is directed against the judgment,dated 05 July 1989, of the Addl. Rent Controller, Delhi, who had passed a decree for eviction of the petitioner/ tenant (hereinafter referred to as the tenant) from the ground floor of house No. S-77, Greater Kailash, Part I, New Delhi on respondent's/Iandlady's (hereinafter referred to as the landlady) application under section 14(1)(e) of the said Act.

(2) The landlady, a widow of an Air Force Officer, let out to the petitioner the entire ground floor of the said property comprising of three bed rooms with attached baths, one drawing-cum-dining room, one kitchen-cum-pantry, back verandah and courtyard, one servant's quarter and lawn in front, on 27 December 1979, vide a registered lease agreement dated 27December 1976,(Ex.A-l),for a fixed period of two years commencing from 01 January 1977, initially at Rs.1,800.00 p.m. It appears that the rent was subsequently increased to Rs.2,200.00 p.m. According to the landlady, she bona fide required the said premises for her and her family's residence, dependent on her.

(3) On leave to contest being granted, the tenant in the reply filed, denied that : (i) the landlady was the owner of the tenanted premises, (ii) she required it bona fide for her and her family members, or that (iii) her son was living with her. He further claimed that the premises were let out for commercial-cum-residential purposes and right from inception of the tenancy, he had been doing business there from and had been paying rent by crossed cheques from the account of his business firm. He alleged that the landlady wanted to increase rent which was pot agreed to by him and, therefore, the landlady filed the eviction petition.

(4) The landlady in support of her case examined herself as well as five other witnesses. The tenant only examined himself. It appears that after, the parties had closed their evidence, an application under Order 6 Rule 17 Civil Procedure Code was moved by the tenant to incorporate an additional plea in his written statement to the effect that he was prepared to vacate the ground floor for the landlady and shift to the first floor which had lesser accommodation. The application wa¯ allowed. The tenant filed amended written statement. In the replication to the amended written statement it was pointed out by the landlady that her son had now got married and he and his wife were living with her besides her brother-in-law, who was earlier staying at Hissar, had also started living with her and thus her requirement for additional accommodation was even more than what was required at the time of filing of the eviction petition. Even though the parties had closed their evidence earlier, in view of the new stands taken, they were permitted to lead further evidence. The landlady again examined herself and stated about the increase in the family and her requirement for additional space. She was cross-examined by the tenant who chose not to lead any evidence in rebuttal.

(5) On the evidence produced, the learned Rent Controller found : (i) the landlady was the owner (ii) her family comprised of herself, her daughter (31 years old), her son, carrying on business in Delhi since 1982, her daughter-in-law, being an officer in Punjab National Bank, New Delhi and a grand child (3 months old), all living with her, besides her brother-in-law living with them for most of the time in Delhi and the family required five bed rooms, and (iii) that the tenancy premises had been let out for residential purposes only, the tenant was not using it for commercial purposes and mere issuance of some rent cheques from his business account would not change the letting purpose and thus passed the decree for eviction of the tenant.

(6) In the revision petition herein, the findings of fact regarding (i) landlady's bona fide requirement of premises for the family, the extent of family members found, and (ii) the letting purpose was only residential have been assailed. It is stated that the learned Rent Controller has exceeded jurisdiction in going beyond the pleadings and holding that the son and his family or brother-in-law were living with the landlady or that she required five bed rooms. Similarly, it is alleged that rent having been paid through cheques from his business concern, the letting purpose was commercial-cum-residential and the Rent Controller erred in holding to the contrary.

(7) Before me, the tenant has chosen to remain absent and unrepresented despite the fact that the matter has been shown in the cause list as part-heard on the second day. I have heard Shri S.P. Aggarwal, learned counsel for the landlady who contends that all the findings recorded by the Rent Controller are pure findings of fact and, therefore, while exercising revisional jurisdiction, they should not be interfered with. Having perused the pleadings and the evidence on record, I do not find merit in any of the grounds raised.

(8) It is true that in the eviction petition, while explaining her bona fide requirement of the premises in question, there was no averment to the effect that it was also required for landlady's brother-in-law and her grand child, who were dependent on her, but the fact remains that in the replication filed by her after the tenant was permitted to take an additional plea that the ground floor accommodation should be sufficient for her, it was clearly averred that her brother-in-law who was a bachelor and of about 70 years of age had also started living with her and that her daughter-in-law was in the family way and thus two additional rooms were required.

(9) It is well settled that the pleadings should not be construed strictly or hyper technically. The object of the pleadings is to bring the parties to an issue so that when the cause comes on for trial, they know what is the real point to be adjudicated upon. In my view, the replication is also a part of the pleading though Order 6 Rule I Civil Procedure Code defines the pleading as meaning the plaint or the written statement. Even otherwise, I feel that a claim should notbe thrown out on a mere technicality of pleadings when the substance of the matter is there and no prejudice is likely to be caused to either side. In Bhagwati Prasad vs. Chandramaul, , the Supreme Court has also observed, in para 10, that if a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is specifically proved by evidence.

(10) Having opined so, I advert to the first ground. The evidence produced by the landlady comprising of herself as AW1, her son - AW2, clerk from the office of the Registrar of Companies - AW3, the owner of the ration fair price shop - AW5, and an officer of the Punjab National Bank, where her daughter-in-law was working-AW6, amply prove that her son, his wife and child were actually living with the landlady. The evidence recorded after the amendment of the written statement and filing of replication thereto, amply proves that landiady's brother-in-law was also living with her for most of the time in Delhi. In the replication to the amended written statement there are averments about the requirement of additional accommodation for brother-in-law and the grandchild of the landlady, who examined herself again as PW7. It has come in evidence that the brother-in-law (husband's elder brother) of the landlady is a bachelor, aged about 70 years and stays with her for about 15/20 days in a month. This evidence has gone unrebutted. Similarly, there is evidence on record in the form of statement of PW7 that after the filing of the eviction petition, her son was blessed with a child who requires a separate room.

(11) I do not feel that the learned Rent Controller has committed any procedural irregularity, by taking into account the fact emerging from the evidence on the subsequent events about additional requirement of accommodation of the landlady, or that the same resulted in miscarriage of justice. There may be and normally is a substantial time gap between the filing of and decision on the petition for eviction. During the trial, the family members may increase or decrease. In either case, I feel, it would be unjust, while deciding, to confine requirements to the number of persons mentioned as family members in the eviction petition irrespective of discemable increase or decrease therein, for which sufficient evidence has come on record. Subsequent events have to be taken into account to do justice in this regard. Apart from the fact that in the present case it had been specifically averred in the replication that her daughter-in-law was in the family way, in my opinion, there is no legal bar in taking into account the events subsequent to the filing of the eviction petition if they emerge from the evidence adduced and have material bearing on the landlady's right to evict. Looked at from this angle, I do not find any illegality in Rent Controller's taking into consideration the subsequent event to arrive at the conclusion that the premises are required bona fide by the landlady for occupation as a residence for herself and members of her family dependant on her.

(12) It has been held by the Supreme Court in Pasupuleti Venkateswarlu vs. The Motor & General Traderes, that where, during the pendency of a proceeding under the Rent Control legislation by the landlord, for permission to evict the tenant, a subsequent event in the facts of the case takes place, which has a material bearing on the landlord's right to evict, the approach of the High Court in revision, in takeing cognizance of the new development cannot be said to be.wrong'or illegal. A similar view has been expressed by this Court in Begum Hamid Ali Khan vs. Col.B.H. Saidi and another, 1982 (1) All India Rent Control Journal 342.

(13) The next question to be considered is as to whether the property was let out for residential-cum-commercial purposes or for residential purposes only. The landlady has placed on record the registered lease deed Ex.A-1. Clause 10 of the said document clearly stipulates that the premises was to be used by the lessee for purpose of residence only. The landlady has categorically stated that the premises were let out to the petitioner for residence. Nothing material was brought out in cross-examination. In rebuttal there is only a bald statement of the tenant. There is no cogent evidence to prove that letting was for commercial purposes. The finding of the learned Rent Controller is unassailable.

(14) It is well settled that though under section 25-B(8) of the Delhi Rent Control Act, revisionary jurisdiction of this court is wider in the scope than under section 115 Civil Procedure Code but still the jurisdiction is not that of an appellate court and it has inherent limitations. This court has no power to interfere unless it finds that the order of the Rent Controller is without jurisdiction or contrary to law or to the express provisions of any Act or where it has arrived at a finding wholly perverse or contrary to evidence or based on no evidence or where some procedural irregularity has been committed resulting in miscarriage of justice. I am of the considered view that in the present case the findings of fact recorded by the learned Rent Controller that the premises in question were let out only for residential purposes and are bona fide required by the landlady are based on sufficient material and cannot be interfered with.

(15) I see no reason to differ from the view taken by the learned Rem Controller and therefore I maintain his order of eviction passed against the tenant The revision petition is accordingly dismissed. There will be no order as to costs.

(16) I would, however, allow two months' time to the tenant to vacate (he premises is question and to deliver its vacant possession to the landlady.