Jai Parkash Gupta & Ors. vs Nand Lal & Anr.
2000 Latest Caselaw 32 Del

ORDER

Madan B. Lokur, J.

1. The Appellants filed an appeal under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter referred to as the Act) directed against the order dated 17th December, 1983 passed by the learned Rent Control Tribunal (hereinafter referred to as the Tribunal) in R.C.A.No. 459 of 1982.

2. The Appellants are the landlords in respect of the suit premises situated on the second floor of property No. VII-21, Naya Bans, Delhi. Respondent No . 1 was said to be the tenant in the suit premises and Respondent No. 2 was said to be the sub-tenant inducted by the tenant.

3. While the eviction petition was filed on various grounds, the learned Additional Rent Controller in his order dated 24th May, 1982 passed in Suit No. E-1007 of 1973 found in favour of the landlords only on the ground of sub-letting and directed the eviction of the Respondents. The relevant provision of law on which eviction was ordered is proviso (b) to Section 14(1) of the Act. The said proviso reads as follows:

"Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely -

(a) xxx xxx xxx

(b) that the tenant has, on or after the 9th day of June,1952, sub-let, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord;

(c) to (1) xxx xxx xxx"

4. While deciding the eviction petition, the learned Additional Rent Controller proceeded on the basis that the tenant was inducted in the suit premises sometime in 1967 and that the sub-tenant, as per the electoral roll pertaining to the year 1971, was residing in the suit premises in 1971. No document had been filed by the sub-tenant to show that he had resided in the suit premises prior to 1971. The learned Additional Rent Controller also came to the conclusion that the sub-tenant was in exclusive possession of the suit premises.

5. Against this order, the Respondents preferred an appeal before the Tribunal. In the appeal, the Respondents moved an application under order XLI Rule 27 of the Code of Civil Procedure seeking permission to lead additional evidence. Permission was sought to produce the voter's list for the year 1965 to show that the sub-tenant was living in the suit premises in 1965, that is, even before the tenant came into the suit premises. This application was allowed and the additional evidence was taken on record.

6. The learned Tribunal held that the tenant never lived with the subtenant as members of one family. It was found that the tenant and the subtenant were living separately and were separate families. However, the learned Tribunal went on to conclude that since the sub-tenant was the brother-in-law of the tenant it was not unnatural for the tenant to allow the sub-tenant to live in the suit premises. The finding of fact given by the learned Additional Rent Controller that the sub-tenant was in exclusive possession of the suit premises was not upset by the learned Tribunal.

7. Learned counsel for the Appellants made his submissions on 14th January, 2000. Even though the matter was shown in the cause list, no one appeared on behalf of the Respondents. Accordingly, Judgment was reserved.

8. The first grievance of learned counsel was that the Tribunal was in error in permitting the Respondents to lead additional evidence without permitting the Appellants to rebut the same. In furtherance of his submission, learned counsel submitted that there was a violation of the principles of natural justice in as much as the Appellants were not given an opportunity to rebut the additional evidence. Learned counsel relied upon Smt. Ashalata Mitter Vs. Amiya Kumar Dey & Ors., ; The State of Madras & Anr. Vs. R. Ranganatham Chettiar, and Hazarilal Vs. Nagar Parishad, Alwar, .

9. Having considered these decisions and the relevant paragraphs read over to me, I am of the view that the law laid down is to the effect that if additional evidence is led or is allowed to be led by one party , then the opposite party ought to be given an opportunity of rebutting that evidence, unless that evidence is of an unimpeachable quality. In the instant case, there is no doubt about the fact that the appellants were not given an opportunity to rebut the additional evidence led by the Respondents in the form of a voters list of 1965. I am of the view that the Appellants ought to have been given an opportunity to rebut the additional evidence, more so as in this case the additional evidence goes to the root of the matter, as will be presently seen. In the absence of giving an opportunity to the Appellants to rebut the additional evidence, I am of the view that it was unsafe to rely upon the same. A voters list is surely not unimpeachable evidence as regards proof of residence as any voter in this country would know.

10. Additionally , I am of the view that it was all the more necessary for the learned Tribunal to give the Appellants the chance to rebut the evidence in view of the fact that before the learned Additional Rent Controller, Respondent No.1 had produced the electoral roll of 1961,1965 and 1971 to show that he had shifted to some other premises. Similarly, Respondent No.2 had produced the electoral roll of 1971 to show that he was living in the suit premises. Quite clearly, it was not difficult for the parties to obtain the electoral rolls and there was no reason why Respondent No.1 did not produce the electoral roll/voters list for the year 1965 before the learned Additional Rent Controller so that the Appellants could have rebutted the contents of the same at the initial stage itself.

11. Learned counsel then contended that the admitted case of Respondent No.2 was that he was in occupation of the suit premises. He submitted that the learned Tribunal had held that the Respondents were living separately and had separate families and were not members of one family, as it were. In this view of the matter, since Respondent No.1 was the tenant in the suit premises, it was for him to explain the possession by Respondent No.2 of the suit premises. (See for example Abdul Aziz Vs. Mohd.Yakub, 1971 All India Rent Control Journal 492).

12. The material on record does not show any explanation having been given by Respondent No.1. However, the learned Tribunal proceeded on the basis that it was not unnatural for Respondent No.1 to permit Respondent No.2 to reside in the suit premises because of their close relationship. I am afraid such a presumption cannot take the place of a valid explanation. Respondent No.1 was required to show that Respondent No.2 was in lawful possession of the suit premises-something which he has failed to do.

13. In this context, it is necessary to state that the case set up by Respondent No.2 was that he was in possession of the suit premises even before Respondent No.1 was inducted as a tenant, as such, there was no question of sub-letting the premises in his favour by Respondent No.1. This story was disbelieved by the learned Additional Rent Controller since Respondent No.2 had failed to show that he had resided in the suit premises prior to 1971.

14. However, the learned Tribunal accepted this case of Respondent No.2 and concluded that since the voters' list for the year 1965 indicated that the wife of Respondent No.2 was a voter from the address of the suit premises, therefore, Respondent No. 2 had been in the occupation of the suit premises prior to the tenant and consequently , the question of sub-letting did not arise.

15. For the reasons given by me earlier, the voters list for the year 1965 ought not to have been relied upon by the learned Tribunal without giving an opportunity to the appellants to rebut the same, more so, as mentioned above, this voter's list went to the root of the matter.

16. If the voters' list for the year 1965 is discarded as I think it should, there is no evidence on record to show that Respondent No.2 entered the suit premises prior to Respondent No.1. It must, therefore, follow that Respondent No.2 entered the suit premises after the induction of Respondent No.1 as the tenant.

17. Learned counsel for the Appellants has rightly pointed out that the learned Tribunal has not disturbed the finding arrived at by learned Additional Rent Controller that Respondent No.2 was in exclusive possession of the suit premises.

18. Under the circumstances, it is quite clear that the ingredients of clause (b) of the proviso to Section 14(1) of the Act have been made out. Respondent No.1 had admittedly parted with the possession of the suit premises and given the same to Respondent No. 2. It has also been found that Respondent No.2 was in exclusive possession of the suit premises.

19. In view of the above, the appeal is allowed and the impugned order is set aside.

20. There will be no order as to costs.