Sultan Ahmed @ Sultan Ali vs Illauddin (Since Deceased) ...
1999 Latest Caselaw 1112 Del

ORDER

Vijender Jain, J.

1. Aggrieved by the order passed by the Rent Control Tribunal on January 11, 1982, the Second Appeal was filed by the appellant in this Court. Respondent-Illauddin filed the eviction petition in May, 1975 against the appellant tenant. Order of eviction was passed by the Additional Rent Controller on October 22, 1979 under Sections 14(1)(a) and 14(1)(e) of the Delhi Rent Control Act.

2. Mr. G.L. Rawal, learned counsel for the appellant, has contended that the finding of the courts below on the bona fide requirement was not sustainable. He has further contended that courts below did not properly appreciate that the eviction petition was filed for partial eviction. It has also been alleged before me vehemently by Mr. Rawal that the purpose of letting was composite and the courts below have not appreciated the evidence which was before the Additional Rent Controller as well as before the Rent Control Tribunal. It has also been contended by the counsel for the appellant that as a matter of fact the eviction petition which was filed was vague and there was material concealment of the accommodation available with the eviction petitioner. In support of his contention he has cited S.P. Chengalvaraya Naidu (Dead) by LRs. Vs. Jagannath (Dead) by LRs. and others (1994) 1 SCC 1, Ramrati Kuer Vs. Dwarka Prasad Singh & Others , Dr. Gopal Dass Verma Vs. Dr. S.K. Bhardwaj & Another AIR 1965 SC 337 and Smt. A.N. Kapoor Vs. Smt. Pushpa Talwar .

3. Mr. Rawal has contended that the courts below considered the evidence which was beyond pleadings and acted without jurisdiction and on this score the impugned order be set aside.

4. On the other hand, Mr. Ishwar Sahai, learned senior counsel for the respondent, has contended that no objection that the eviction petition was lacking any material particulars or the same was vague was taken in the written statement and the appellant cannot be permitted at this stage to take such objection in the second appeal. In support of his contention, he has cited Hari Singh Vs. Kanhaiya Lal and Jitender Singh Vs. Manmohan Lal 1977 Rajdhani Law Reporter 522. Repelling the contention of the counsel for the appellant that the eviction petition was filed for partial eviction, Mr. Sahai has contended that Ex. A/1, which was the saledeed in favour of the respondent was brought on record. In the said saledeed there was no mention of the Barsati on the first floor. He has contended that there was no advantage in concealing the fact that Barsati was in existence, if it was within the knowledge of the respondent . Defending the impugned order, Mr. Sahai has contended that in an affidavit filed by the appellant before the competent authority under the Slum (Improvement & Clearance ) Act, the appellant himself has stated that he has been residing in the property since inception along with other members of his family. That document Ex. Px was rightly taken into consideration to decide that the premises were let out for residential purposes and the same were used for residential purpose alone. Mr. Sahai has further contended that the application (CM No. 3191/99) of the appellant under Order 41 Rule 27 of the Code of Civil Procedure is belated and even if subsequent acquisition of accommodation available in the hands of the family of the respondents is taken into consideration, still the accommodation is less than what is required by the respondents.

5. I have given my careful consideration to the arguments advanced by learned counsel for both the parties. Let me first deal with the argument that the property was let out for composite purpose. In paragraphs 4 and 5 of the affidavit (Ex.Px), the appellant has stated as under :

"4. That since the inception of the tenancy the deponent is residing in the suit premises with his parents and brothers jointly as members of one and the same family. My wife is also a household lady and not an earning member.

5. The deponent has 8 children. These are four sons and four daughters. All are minors and none of them is an earning member."

6. Much has been said and argued about taking into consideration paragraphs 4 and 5 of the said affidavit. This affidavit was filed by the appellant inn opposition to the application for grant of permission under Section 19 of the Slum (Improvement & Clearance) Act. There is a categori-

cal statement by the appellant that all the members of his family are residing in the property in dispute. That included the families of even brothers. The extent of accommodation available with the appellant has rightly been pointed out by the Tribunal. It is not conceivable that 20 people can reside in the same accommodation as well as carry on the work. As a matter of fact, Ex.Px clinches the whole issue, which has not been reproduced in the impugned judgment and that is paragraph 6 of the said affidavit. The stand taken by the appellant is to the following effect :-

"6. I am working with M/s Photo Offset Printing Press, Baradari Ballimaran, Delhi and getting Rs. 250/- p.m. In support a certificate from the employer in original is enclosed."

7. Once the appellant has himself stated that he was employed in some other press how he can turn around and say that he was working in the premises in question ? He cannot be allowed to approbate and reprobate at the same time. I do not find any infirmity with the order of the Additional Rent Controller as well as Rent Control Tribunal on this score.

8. Adverting to the argument that the petition was filed only in relation to the ground floor, but there was a Barsati Floor on the open roof. According to the stand of the appellant he had been an old tenant since the time the property fell in the hands of Custodian of Evacuee Properties. It was for him to produce the records from the office of the Custodian of Evacuee Properties that he was also described to be in possession of Barsati. For the reasons best known to him, he did not produce the best evidence, if any available. The irresistible conclusion is that as deposed by AW 2 that the room at the first floor might have been constructed by the appellant himself. Appellant had chosen not to summon the records from the office of Custodian of Evacuee Properties. In any event of the matter it hardly makes any difference if the premises which were let out by the landlord to a tenant and eviction petition is filed for the same even if there is some additional construction, which has been built by the tenant without the knowledge and consent of the landlord, there will be no impediment in the way of the landlord to maintain an eviction petition in relation to the whole of the property.

9. Lot of stress was laid before this court by Mr. Rawal that subsequent facts be taken into consideration and application (CM No. 3191/99) to that effect has been filed under Order 41 Rule 27 of the Code of Civil Procedure. On the basis of this application, Mr. Rawal has vehemently contended that the respondent should be non-suited in this appeal on the ground that they have concealed material fact regarding accommodation available with Late Illauddin, the eviction petitioner. According to the appellant additional accommodation has been acquired by the sons of late Illauddin, i.e. Salauddin has acquired one room on terrace in property at Gali Khazoor, Kucha Chellan, Darya Ganj, Delhi. It has also been contended that Mst. Nargis, wife of Mirajuddin has also purchased two rooms on first floor with balcony and toilet.

10. Affidavit has been filed by the respondents stating that the small room on the terrace floor of the property at Gali Khazoor, Kucha Chellan, Darya Ganj, Delhi is used for storing of the goods for their business. It has also been admitted that Mst. Nargis has acquired two rooms on first floor with balcony and toilet with the funds provided by her brother.

11. Without going into the controversy whether funds have been provided by the brother of Mst. Nargis or has been acquired by Mst. Nargis herself, what has been acquired is only two rooms on the first floor measuring 37 sp. yd. out of a total area of 83 sp. yd. Even if this accommodation is taken into consideration still keeping in view the large family of the respondents, the accommodation available in their hands are too meagre. The last contention is with regard to a plot of land allegedly purchased by respondents' father late Illauddin in the year 1962. What Mr. Rawal has canvassed before me is that Illauddin at the time of filing of the petition has withheld this information and, therefore, on account of the concealment of this fact, the appeal be allowed.

12. I do not see any force in the argument of the learned counsel for the appellant. Firstly, photo-copy of the sale-deed which has been filed in this court pertains to the year 1962. The same has been brought on record in September, 1999. That sale-deed is in relation to an open plot of some agricultural land as would be evident from the description of the land in the sale-deed. Even if this plot of land was available with Illauddin in the year 1962, there was no construction on the said piece of land. Mr. Rawal has tried to convass that in the said sale-deed a photo-copy of some sort of site plan has also been attached therein that there was some construction. No such recital is found in the sale-deed. It is too late for the appellant to invoke the aid of Order 41 Rule 27 of the Code of Civil Procedure, of a document which was in existence in the year 1962 and same has been brought on record only in 1999. The stand of the respondent is that they do not have any accommodation on the said property.

13. In view of the above discussion, I do not see any merit in the contention of the learned counsel for the appellant. This Court in the Second Appeal will not like to interfere with the concurrent finding of facts of the courts below. More so, the case is very old pending in this Court since 1982.

14. Dismissed.

15. Interim Order stands vacated.