Sh. Mohd. Umar vs Smt. Azimunnisa And Ors.
2003 Latest Caselaw 1249 Del

JUDGMENT

R.C. Jain, J.

1. This petition under Section 25-B(8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the `Act') is directed against the order dated 20th July, 2002 passed by the Additional Rent Controller, Delhi thereby dismissing an application of the tenant seeking leave to contest the eviction petition under Section 14(1)(e) read with Section 25-B of the Act and passing an eviction order in respect of the suit premises.

2. The respondents-landlords had filed an eviction petition under Section 14(1)(e) of the Act seeking eviction of the petitioner-tenant (hereinafter referred to as the `Tenant') with the averments and allegations that their predecessor-in-interest Sh.Hafizuddin @ Mohd.Idris was the owner of property No.4534, Gali Shahtara, Shish Mahal, Ajmeri Gate, Delhi. He having died on 13th June, 1997 leaving behind the petitioners as his legal heirs who have inherited the suit property as joint owners. Mohd.Umar was inducted as a tenant in respect of the first floor and barsati floor portion as shown in red colour in the site plan of the said property for residential purpose @ Rs.60/- per month excluding all other charges. The landlords alleged that they did not have any reasonably suitable residential accommodation available with them and, therefore, the tenanted premises is required by them bona fide for their own residence and for the residence of their family members numbering eight. They also alleged that some of them had been residing in a rented accommodation of two rooms and one kothri on first floor and two rooms on the second floor of another property bearing No.4481, Gali Shahtara, Ajmeri Gate, Delhi.

3. The tenant being served with the special summons of the eviction petition filed an affidavit seeking leave to contest the eviction petition not disputing the factum of ownership, relationship of landlord and tenant between the parties and the extent of premises and rate of rent etc. but contended that the premises had been let out to him for residential-cum-commercial purpose and that he had been doing the business of manufacturing chappals besides using the same for residence ever since the inception of the tenancy in 1978. It is stated that even before renting in the suit property, the same was occupied by his fore-fathers for the composite purpose of residence and business. It was disputed that the petitioners required the suit premises bona fide and it was pleaded that they have more than sufficient accommodation at their disposal. It was also pleaded that there is other more suitable portions in the suit premises occupied by other tenants but the landlords have chosen to seek his eviction due to mala fide consideration as they intend to raise a three story building in the open courtyard. It is also alleged that since 1990, the predecessor-in-interest of the landlords had been asking for further increase in rent or to vacate the premises and he neglected in carrying out the repairs. It was also contended that Hafizuddin had agreed to sell the tenanted premises for a consideration of Rs.50,000/- and a sum of Rs.25,000/- was paid to him in cash as earnest money on 5th August, 1994. It was further pleaded that the landlords with the mala fide intention had filed a suit for mandatory and permanent injunction for directing the deponent-tenant to remove himself with bag and baggage from the tenanted premises as the same was in dilapidated condition and was likely to fall down any moment which suit is stated to be pending in the Court of Civil Judge. The stand taken in the present eviction petition is contrary to the stand taken in the suit.

4. The landlords filed a reply to the application for leave to contest the petition thereby controverting and refuting the allegations made and contentions raised in the application and reiterating the averments made in the eviction petition. The learned Controller on a consideration of the facts and circumstances and the material brought on record, found that the tenant has failed to disclose any facts which may dis-entitle the landlords to the relief claimed and that the application for leave to contest the petition did not raise any friable issues and accordingly declined the application for leave to contest the petition.

5. We have heard Ms.Usha Kumar, learned counsel representing the petitioner-tenant and Mr.S.D.Ansari, learned counsel representing the respondents-landlords and have given my thoughtful consideration to their respective submissions.

6. Though in the application for leave to contest the petition, several grounds were put forth seeking leave to contest the eviction petition and they were perused before the Controller and answered by the learned Controller but in the present proceedings, the learned counsel for the petitioner has largely confined her attack to the impugned order only so far as it has held that the suit premises was let out for residential purposes. According to the learned counsel for the petitioner, this finding of the learned Controller is erroneous having regard to the facts and circumstances of the case and the material brought on record which showed that the premises was let out and have been actually used for composite purpose viz. residential-cum-commercial from the very inception of the tenancy. To this end, the learned counsel for the petitioner-tenant has heavily relied upon a registration certificate issued by the Commissioner of Industries, Delhi Administration certifying that M/s.Mohd.Umar, a sole proprietorship concern of Mohd.Umar was registered under tiny unit enterprises for a period of five years w.e.f. 13th January, 1946 at the address of the suit premises for the purpose of manufacturing/processing all leather footwear viz. chappals. One of the condition in this certificate being that the proprietor shall continue to reside in the same premises. The learned Controller has discarded this document in the absence of any other proof in regard to the purchase of raw material, manufacture activity, sale of finished goods or account books of the said concern having been produced on record. In the opinion of this Court, the trial court was justified in taking this view because this document could not have been pressed in service by the petitioner-tenant as admittedly the suit property was let out to the petitioner only in the year 1978, the said certificate having lost its validity much prior to the inception of the tenancy. The petitioner did not produce any certificate validating the said registration after a period of five years from 1946. If the petitioner was really engaged in manufacturing the chappals from the suit premises, he could have certainly produced some cogent proof and evidence to that effect. Assuming for the sake of argument that the petitioner was engaged in some process in relation to making chappals in a part of the suit premises, that user by itself would not change the pre-dominant user of the premises from residential to commercial or to a composite purpose. It is not unknown that people do engage themselves in small commercial activities/ventures of preparing some items of handicrafts with the use of small machines from their residences. Pursuing of such an activity from a residential premises will not ipso facto change the user of the premises from residential to commercial particularly when as per the petitioner's own showing, he and all his family members are also residing in the suit premises. On the face of this position, it is almost impossible to hold that the suit premises were let to the petitioner for commercial purpose or have been used by the petitioner for a composite purpose of residence and manufacture/commerce and he was not entitled to eviction on that score. Even if it is assumed that petitioner has put the premises to composite use, it will not dis-entitle the landlord from seeking his eviction because the premises were let out for residential purpose only.

7. The other pleas with regard to the eviction petition being not bona fide and having been filed with the intention to pressurise the tenant to enhance the rent, is also based on vague and unspecific allegations. The trial court has found that the respondent-landlord is residing in a tenanted premises and his need for the suit premises, is genuine and bona fide having regard to the size of his family.

8. Having considered the matter, this Court is of the opinion that the petitioner has not been able to show that the impugned order is not in accordance with law or against any provisions of Delhi Rent Control Act or is perverse which calls for any interference by this Court in exercise of its power under the provisions of sub-section (8) of Section 25-B of the Act. Accordingly, the petition is hereby dismissed.