Faqljir Chand vs Ved Prakash
1994 Latest Caselaw 55 Del

JUDGMENT

Sunanda Bhandare, J.

(1) This revision petition is directed against the order of the Rent Controller, Delhi dated 4th August, 1992 whereby the eviction petition filed by the petitioner under Section 14C of Delhi Rent Control (Amendment) Act 1988(hereinaftcr referred to as the Act) was dismissed.

(2) The brief facts which led to the filing of the petition are as follows: The petitioner let out the premises consisting one bed room, one drawing cum dining room, one kitchen, one Wc with attached bath room and front Verandah in property No. 145 Gagan Vihar, Delhi on 14th October, 1985. The petitioner being a Central Government employee tenanted the premises to the respondent since he did not require them while he was in service. The petitioner retired from Government service on 2nd October, 1989. Since petitioner's own premises were not vacant and tenanted to the respondent he shifted to premises No. H-141.N.A. Colony, New Delhi, an official accommodation allotted to his friend Shri R.K. Singhal. Since the petitioner could not continue in the friend's accommodation for long and he wanted his own accommodation back after his retirement, he moved the petition for eviction under Section 14C of the Act.

(3) The learned Rent Controller by way of the impugned order while accepting that the premises in occupation of the respondent were required by the petitioner for his own residence and he being a retired employee of the Central Government was entitled to get back the premises under Sec.l4C of the Act, dismissed the eviction petition on the sole ground that the petition filed by the petitioner was not in respect of the whole of the premises tenanted to the respondent and had sought only partial eviction of the respondent. The Rent Controller held that the respondent was the tenant of the entire house and not the portion of the house as stated in the eviction petition. The petitioner relied on written agreement entered into between him and the respondent at the time of letting to show that only part of the premises wa.s let out to the respondent. However, since the lease agreement was not registered, it was not exhibited. The petitioner had also not paid adequate stamp duty on the lease agreement, however after the petition was filed, on an order passed by the Rent Controller he made up the deficiency in the stamp duty. The Rent Controller however refused to rely on the rent agreement since it was not registered, registration being necessary in view of the fact that the lease was for a period of two years. The Rent Controller, therefore, decided the question of the extent of accommodation without looking at the lease deed but on the basis of oral evidence led by the parties. The petitioner had stated that the respondent had committed trespass in the year 1988 and the criminal complaint was filed in 1990 just before the filing of the eviction petition. The Rent Controller observed that since the petitioner had remained silent for two to three years and had not filed a criminal complaint till 1990, an adverse inference had to be drawn against the petitioner and accordingly he held that the respondent is in fact a tenant in respect of the entire property and the eviction petition as filed in respect of only a part of the premises was bad on the ground that partial eviction had been sought.

(4) The petitioner contended that only the portion shown in the lease deed was let out to the respondent and other part of the house at the back side was illegally trespassed by the respondent while the petitioner was posted outside Delhi. When the petitioner came to know of the trespass he lodged a police complaint and also sent a notice to the respondent calling upon him to withdraw himself from the said premises. Immediately thereafter he filed the eviction petition.

(5) The petitioner examined himself in support of his case and stated that the respondent had illegally trespassed on the back portion of the premises and there was no tenancy agreement in respect of that portion. The petitioner also examined one Shri Gurinder Dhillon who was a witness to the written agreement to prove that only the portion marked in the plan Along with the lease agreement was let out to the respondent.

(6) The respondent examined himself and one other witness namely Shri Dhanbir, a milk vendor.

(7) Undoubtedly, the lease deed could not be relied upon because it was not registered and the extent of accommodation mentioned in the lease deed could not be said to be collateral purpose. Thus, it was essential for the petitioner to prove the extent of accommodation without relying on the lease deed.

(8) On going through the evidence I find that the respondent has been disbelieved by the Rent Controller in respect of the other issues under consideration namely; the petitioner being a Government servant and his bona fide requirement. An adverse inference has been drawn against the petitioner simply because of the delay in filing the police complaint. The statement of the petitioner has been disbelieved and reliance is placed on the statement of the respondent to come to the conclusion that the entire house and not only the portion mentioned in the petition was let out to the respondent. The respondent is not a truthful witness. He has chosen to deny each and every averment made by the petitioner and he has been disbelieved. The only other witness the respondent has examined is a milk vendor. The evidence of this witness also does not inspire any confidence. He is supposed to be selling milk to the respondent since 9 to 10 years. In his examination-in-chief he states that he gives milk in the house of the respondent since about 9 to 10 years. However, in his cross-examination he stated that the respondent occupied the house 6 to 7 years back. He has also given incorrect house number as 125. He admits in his cross-examination that he was brought to the Court by the respondent and he was briefed of the facts regarding tenancy by the respondent a week back. He is ignorant about the ownership of the property, the rent and the area. The evidence of this witness is far from inspiring. Thus, the only evidence on the basis of which the extent of the premises let out could be determined is the evidence of the respondent himself. The respondent admits in his statement that the petitioner had lodged the police complaint and in fact he had visited the premises Along with the police. Since the respondent deposed falsely in respect of other issues, in my view, it was wrong on the part of the Rent Controller to rely upon the statement of the respondent to draw an adverse inference for determining the extent of accommodation in his possession or in respect of which tenancy was created. The petitioner has been truthful in his evidence and his statement and averments made in the eviction petition on other issues have been accepted. Simply because he did not lodge a police complaint immediately after the alleged trespass by the respondent does not prove that he has deposed falsely in respect of the extent of accommodation let out to the respondent. The petitioner has categorically stated that the trespass took place when he was posted in Madras and he came to know about it in May 1988 when he returned from Madras. It appears that the police did not take action against the respondent for trespass. The petitioner did not approach higher officials of the police, however chose to file the eviction petition. This fact alone cannot be held against the petitioner. Naturally since the respondent was a tenant of the petitioner the police would not have taken any action even in respect of a trespass till it was proved in a Court of law. The find ing of the Trial Court regard ing extent of accommodation is thus not based on any evidence at all. Even otherwise looking at the overall circumstances of the case, the petitioner proved his case under Section 14C of the Act, the Rent Controller erred in dismissing the eviction petition on a highly technical ground by drawing adverse inference. The impugned order, in my view, has resulted in miscarriage of justice. As such, the order of the Rent Controller cannot be sustained. In the circumstances, the revision petition is allowed. The order of the Rent Controller dated 4th August 1992 is set aside and a decree of eviction is passed in favor of the petitioner and against the respondent. The respondent is granted one month's time. to vacate the premises. No costs.