Mangal Sain Jog Dhian vs Hari Shankar Rastogi And Ors.
2002 Latest Caselaw 1931 Del

JUDGMENT

S.K. Mahajan, J.

1. This order will dispose of the second appeal filed by the appellants/tenants against the order dated 19th December, 1989 passed by the Rent Control Tribunal whereby the order dated 24th October, 1988 passed by the Additional Rent Controller disposing of the petition of the respondents under Section 14(1)(a) of the Delhi Rent Control Act (in short referred to as "the Act") was disposed of after giving benefit of Section 14(2) of the Act to the appellants. Brief facts relevant to the decision of this appeal are :

2. One Lala Jog Dhian was the owner of the property bearing No. 5703-5722, Nai Sarak, Delhi in a family partition in the year 1947, the property fell to the share of Smt. Chandrawati Devi wife of the said Lala Jog Dhian and she, therefore, became the owner/landlord of the said property. In a portion of the property bearing No. 5722, Nai Sarak, Delhi, comprising of one big hall, three rooms and one shed on the ground floor the appellant No. 1, a partnership firm of which Hari Shankar Rastogi and Hari Nath Rastogl were partners, was tenant on a Rent of Rs. 60.50 paise per month. In 1973 the said Chandrawati Devi filed a petition for eviction of the appellants on the ground that the appellants had neither paid nor tendered the whole of the arrears of rent legally recoverable from them w.e.f. Bhandon Sudi Samwat 2028 despite service of noticedated 11th July, 1971 upon them.

3. The petition for eviction was contested by appellant No. 1 through appellant No. 2. It was alleged in the written statement that Chandrawati Devi had no locus standi to file the petition as she was a limited owner to the extent of only Realizing rent and that the appellants were tenants not only in respect of the ground floor of the property bearing Nos. 5722 but also in respect of premises bearing Nos. 5719, 5720, 5721 on the ground floor and first floor of the property. It was alleged in the written statement that Smt. Chandrawati Devi had taken a portion of the tenanted premises from the appellants for celebrating the marriage of near niece but the same had not been returned to the appellants and they thus having been deprived of the user of a portion of the tenanted premises were entitled to suspend rent. The learned Additional Rent Controller decided both these points against the appellants and passed an order under Section 15(1) of the Act on 12th July, 1988. The order under Section 15(1) of the Act having been complied with the Additional Rent Controller after giving benefit of Section 14(2) of the Act to the appellants, disposed of the petition for eviction!

4. The order of the Additional Rent Controller was challenged by way of appeal before the Rent Control Tribunal on the ground that the appellants were deprived of a portion of the tenanted premises and as such they were entitled to suspend rent and consequently neither any order could be passed under Section 15(1) of the Act not there was any question of granting benefit of Section 14(2) of the Act to the appellant. The Tribunal after hearing the parties was of the view that

the appellants had not led any satisfactory evidence to prove that they were tenants in respect of any other portion except the premises in property No. 5722, Nai Sarak, Delhi. It was observed by the Tribunal that the burden of proving that any other premises apart from in disputed premises was under the tenancy of the appellants or that they were deprived of any portion of the tenanted premises. It was held by the Tribunal that the onus of proving that they had been deprived of a part of the tenanted premised tied on the appellants but they having not discharged the onus, it could not be held that they were tenants in any portion other than the premises in property No. 5722, Nai Sarak, Delhi. The Tribunal, therefore, dismissed the appeal of the appellant. Aggrieved by the impugned judgment of the Rent Control Tribunal, the present appeal is preferred by the appellants.

5. Before I deal with the merits of this case, it may be pointed out that during the pendency of the petition Smt. Chandrawati, Devi had expired and the respondents being her legal heirs were substituted as respondents in her place. The only point argued by learned counsel for the appellants is that the appellants having been deprived of a portion of tenanted premises, they were entitled to suspend rent and consequently no order under Section 15(1) of the Act could be passed against them. It is the submission of the appellant that there was sufficient evidence on record to hold that the appellants were tenants not only in respect of the premises bearing No. 5722, Nai Sarak, Delhi but also in respect of other portions of the property both on the ground floor as well as the first floor. It is submitted that a part of the tenanted premises was taken by Smt. Chandrawati Devi for performance of the marriage of her niece but even after marriage, the same having not been returned and she having continued to occupy the same, the appellants were entitled to suspend rent.

6. Under Section 39 of the Delhi Rent Control Act (unamended), an appeal involving substantial question of law shall lie to the High Court from an order made by the Tribunal. A reading of Section 39 of the Act makes it clear that unless substantial question of law was involved, the appeal against the order of the Tribunal would not lie to the High Court. On the facts of this case, the question as to whether or not the appellants were deprived of any portion of the tenanted premises is a pure question of fact and in the opinion of the Court, the second appeal was not maintainable. The contention of learned counsel for the appellants, is that the trial Court as well as the First Appellate Court have not appreciated the evidence on record and have rejected the documents proved on record by the appellants. The submission of learned counsel for the appellants is that the following substantial question of law arise in the present appeal :-

1. Whether the survey report prepared by the Municipal Corporation of Delhi is statutory?

2. Whether any reliance can be placed upon the survey report by the tenant on the ground that the landlord had allegedly relied upon the same in suit against the MCD? and

3. Whether the survey report was not relied upon by the landlord against the tenant.

7. The contention of learned counsel for the appellants is that under Sections 124 to 126 of the Delhi Municipal Corporation Act, the contents of the survey

report are statutory in nature and mis-appreciation of this report or rejecting this evidence on record by the Controller or the Tribunal involved substantial question of law so as to give a right to the appellants to file the present appeal. Since I had heard learned counsel for the parties even on the question as to whether there was any evidence on record to hold that the appellants had been deprived of the user of any portion of the tenanted premises, I have proceeded to decide this appeal even on merits assuming the questions raised by the appellants to be substantial questions of law.

8. The only point for examination by this Court is whether any reliance can be placed on the survey report and, if so, whether such survey reports discloses that the appellants were in possession as a tenant of any portion other than the premises for which the petition for eviction was filed against them. The only document on which reliance has been placed by the appellants is survey report prepared by the M.C.D. This survey report relates to the year 1956. In this survey - report against property Nos. 5719, 5720 and 5721, which were alleged to be under the tenancy of the appellants, the name of the occupier has not been mentioned. The contention of the appellants is that there is a bricket against all these numbers and a sum of Rs. 750/- is shown to be the rent in respect of all the said properties and the name of the appellants having been shown against the property No. 5722, it should be presumed and held that all these properties bearing numbers 5719 to 5722 were occupied by the same tenant. I am unable to accept this argument of the appellants. A perusal of the survey report shows that against each number, the name of the occupier has been mentioned. Where the occupier in respect of one premises is also occupying another premises the same has been described by the words do which shows that the person who was in possession of the preceding portion of the property mentioned in the survey report was also occupying the latter portion. It is only in respect of house Nos. 5717 of 5721 that the name of the occupied has not been mentioned nor any rent has been shown against these portions. This will clearly mean that these premises were, in any case, not in possession of the appellants. The survey report Ex. RW-1/1, in my opinion does not in any manner establish that besides house No. 5722. Nai Sarak, Delhi, the appellants were occupying any other premises in property Nos. 5719 to 5721. The appellant had thus failed to prove that they were tenants of any other premises or portion except the one described in the petition and there was thus no question of their being deprived of the user of any part of the tenancy premises so as to given them a right to suspend rent. Both the Additional Rent Controller and the Rent Control Tribunal were, therefore, right in passing order under Section 15(1) of the Act and giving benefit of Section 14(2) to the appellants. I do not find any illegality in the impugned order which any call for interference by this Court.

9. For the foregoing reasons, there are no merits in this appeal and the same is, accordingly, dismissed with costs.