Jishan Ali vs Savita Devi
2002 Latest Caselaw 907 Del

JUDGMENT

R.C. Chopra, J.

1. The petitioner/tenant has filed this petition under Section 25-B(8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the "Act" only) against an order dated 24.9-2001 passed by learned Additional Rent Controller, Delhi by which his application for leave to defend was dismissed and the eviction petition filed by the respondent landlady under Section 14(1)(e) read with Section 25B of the Act was allowed.

2. The facts relevant for disposal of this petition, briefly stated, are that the respondent landlady had filed an eviction petition against the petitioner alleging that the petitioner was her tenant in respect of one room and open space in front thereof in property No. WZ-259/2, First Floor, Pradhan Wali Gali, Village Madipur, Delhi. The respondent along with her husband and three married sons was living in a tenanted house at Janak Puri, New Delhi and as such, she bonafide required the suit premises for residential use. The petitioner tenant filed an application for leave to defend the eviction petition contending that the respondent was not the owner of the premises in question and had no bonafide need. He also pleaded that the premises were let out for residential-cum-commercial purposes and the respondent had alternative accommodation available to her at Janak Puri as well as Madipur, New Delhi. He also raised a plea that the eviction petition filed by the respondent was not maintainable as the tenanted premises consisted of two rooms whereas eviction petition had been filed in respect of one room only. It was contended that partial eviction was not permissible.

3. Learned Additional Rent Controller after considering the pleas raised by the petitioner and examining the material on record, came to the conclusion that the petitioner had failed to raise any friable issue entitling him to leave to defend. His application was, therefore, dismissed and an order of eviction was passed against him.

4. I have heard learned counsel for the petitioner and learned counsel for the respondent. I have gone through records of the case.

5. Before adverting to the pleas raised by the parties in this petition, this Court has to keep in mind that the powers of High Court while exercising jurisdiction under Section 25-B(8) of the Act are not as wide as that of an Appellate Court. The High Court cannot enter into appreciation or re-appreciation of the evidence merely because it is inclined to take a different view of the facts as if it were a Court of facts. The extent of jurisdiction and powers of the High Court under Section 25-B(8) of the Act have been laid down by the Apex Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, . Hon'ble Mr. Justice V.N. Khare and Hon'ble Mr. Justice R.C. Lahoti discussed in detail the parameters within which the High Court has to remain while exercising jurisdiction under Section 25-B(8) of the Act and held that the High Court has to test the order of the Rent Controller on the touch-stone of "whether it is according to law". It was held that for this purpose only, the High Court may enter into reappraisal of evidence and find out as to whether view taken by the Rent Controller is wholly unreasonable or the one which no reasonable person acting with objectivity could take on the material available on record. This Court, therefore, has to consider the submissions made by learned counsel for the parties and examine the correctness of the impugned order as per the guidelines laid down by the Apex Court in the aforesaid case.

6. The contention of learned counsel for the petitioner that the respondent was not the owner of the premises in question is without any merit for the reason that the respondent has placed on record not only a photocopy of the registered Exchange Deed by virtue of which she became the owner of the property in question, but has also placed on record photocopies of the house tax receipts and the demand notices to show that she is the owner of the property in question. The presumption raised under Section 116 of the Evidence Act is also against the petitioner, who cannot be permitted to dispute the title of his landlord. The law is well settled that in rent matters, the concept of ownership is distinguishable from the concept of ownership in a title suit and in case it is shown that the landlord is entitled to the property in question in his own legal right as distinguished from, for an on behalf of some one else, to evict the tenant and then to retain the control, hold and use the premises for himself, he can be declared owner of t he premises for the purposes of Section 14(1)(e) of the Act. The Apex Court in a recent judgment titled Sheela and Ors. v. Firm Prahlad Rai Prem Prakash, has held that in rent matters, the burden of proving ownership on a landlord is not that heavy as it is in a title suit and even a lesser quantum of proof may suffice for holding that the landlord is the owner of the premises in question Therefore, in view of the exchange deed, payment of House Tax and the receipt of rent from the petitioner, this Court has no hesitation in holding that the respondent is proved to be the owner landlady of the premises in question.

7. The plea of the petitioner that the premises were let out for residential-cum-commercial purpose and as such, the respondent is not entitled to claim eviction under Section 14(1)(e) of the Act has been rightly rejected by learned Additional Rent Controller in as much as there is neither any satisfactory proof in regard to letting for commercial purpose nor it is shown on record that the respondent landlady had ever permitted the petitioner to use the premises for commercial purposes. The premises in question are residential in nature and as such, its use was also residential for which the same were let out by the respondent/landlady

8. Learned counsel for the petitioner has vehemently argued that the eviction petition filed by the respondent is liable to be rejected on the ground that it was for partial eviction from the tenanted premises. Learned Additional Rent Controller did not agree with this plea and rightly so for the reason that it is shown on record, through the site plan filed by the respondent himself, that besides the tenanted premises in the property of the respondent, petitioner is having another room in the adjoining property also, which is on the other side of the common passage. The water charges bill, a photocopy of which was filed by the respondent shows that the other premises are bearing No.WZ-259/5, Madipur, Delhi and are owned by one Surat Singh and as such, it cannot be said that the said room is a part of the tenanted premises let out by the respondent to the petitioner. Therefore, it cannot be said that it is a case of partial eviction.

9. The averments made by the respondent in the eviction petition as well as in reply to leave to defend application clearly establish that the respondent and her husband have three married sons, who are living with them in a rented accommodation at Janak Puri, New Delhi. There cannot be a better case of bonafide need than the one where a landlord/owner is himself living in a rented accommodation along with his family. It, therefore, can be safely held that petitioner bonafide needs her own property and as such, learned Additional Rent Controller was fully justified in holding that the premises in question were required by the respondent landlady for herself as well as her family's residential needs. The pleas raised by the petitioner that some of them are residing at Rohtak or one of the sons of the respondent is not living with her are not tenable in asmuchas there is nothing on record in support of these pleas. As and when the premises in question are available to the respondent, her entire family may chose to stay with her in their own house. Similarly the plea raised by the petitioner that the respondent landlady is having alternative accommodation at Janak Puri or Madipur, is not supported by any document on record, and as such, has been rightly rejected by learned Additional Rent Controller.

10. This Court, therefore, finds no good grounds for interfering with the impugned eviction order passed by learned Additional Rent Controller. The application for leave to defend filed by the petitioner has been rejected after considering the submissions made by him in their proper perspective. The view taken by learned Trial Judge is neither perverse nor contrary to law.

11. This petition is, therefore, dismissed.

CM.No.83/2002

12. Dismissed.