Radha Paintal And Anr. vs Narinder Nath Bakshi Thr. Lr'S
2004 Latest Caselaw 1243 Del

JUDGMENT

R.S. Sodhi, J.

1. This petition is directed against the judgment dated 6.4.2002 of the Additional Rent Controller, Delhi in Petition No. E-862/00 (Old No.3/94) and E-863/00 (Old No. E-174/94) wherein the Additional Rent Controller has decreed the Suit of the landlord under Section 14(1)(e) of the Delhi Rent Control Act (for short 'the Act') but dismissed it under Section 14(1)(h) of the Act.

2. Brief facts of the case as noted by the Additional Rent Controller are as follows:-

''.....that the respondent Sh.R.S.Paintal was inducted as tenant by the previous landlady, who happened to be the late mother of the present petitioner Sh.Narinder Nath Bakshi. The tenanted premises comprised of two rooms, kitchen, bathroom, W.C., balcony in property bearing No.23/2, First Floor, Double Storey, Ramesh Nagar, New Delhi and the rate of rent agreed was Rs.25/- per month. No written agreement was executed. It is alleged that after demise of the previous owner/landlady, the petitioner become the owner by virtue of a Will executed in his favor in May, 1981. The petitioner is at present living in accommodation exactly similar to that in possession of the respondent i.e. on ground floor. His family comprise of himself, his wife, mother in law and three daughters. Out of these three daughters, one daughter is married while two are college going. He has no other reasonable suitable alternative accommodation. The premises being residential in nature are required by the petitioner and their family members for their bonafide necessity of residence.

In the petition u/s 14(1)(h) of the Act, it was pleaded that the respondent has acquired another house bearing No.23/4, First Floor, Double Storey, Ramesh Nagar, New Delhi and therefore he is liable to be evicted on this point. The respondent resisted the petition on various grounds interalia that Smt.Ram Pyari Chhibbar, the original landlady had let out both the premises No.23/1 and 23/4 simultaneously to the respondent in 1956. The suit premises i.e. property No.23/1 was le out for residential-cum-commercial purpose whereas flat No.23/4 was given for residence purpose only. The Will referred by the petitioner is forged and fabricated and manipulated document. It does not disclose the date of execution and first page of Will is not even signed by the alleged testator. The petitioner has no locus standi to file the petition without including the heirs of the deceased landlady. The accommodation in possession of the petitioner is quite sufficient and the alleged insufficiency is malafide. The petitioner himself has been carrying on trade and business in the portion in his possession the ground floor and the alleged paucity of accommodation though not admitted and was specially created by the petitioner evidently to defeat the interest of the respondent. The petitioner has in his possession besides two rooms, kitchen, bathroom, one room, one store and store and open courtyard in rear of the house and one room on the front side with open courtyard of the property in his possession. He has about 100 sq.yards of land also available to him which he is using it for commercial purpose i.e. business of building material. Besides this he has other residential premises available to him bearing No.253, Gali Halwaian, Paharganj, New Delhi and other two houses one bearing No.WZ 714/314, Gali No.6, Geetanjali Park, Sagar Pur, Near Janakpuri, New Delhi and one more house in Naiwala Karol Bagh, New Delhi, the details of which are not known to the respondent. The petition is not maintainable being one for partial eviction because the tenanted premises included the entire stair case right from ground floor up to terrace, the open terrace and the gallaries on two sides on the premises. The petitioner has entered into agreement to sell the suit property to one Sh.Manohar Lal of Janakpuri and for this reason the petition has been styled and filed in the garb of a petition for bonafide necessity. The respondent is in possession of property No.23/4 since the inception of tenancy in respect of the suit premises. In fact both the premises were let out to the respondent by original landlady simultaneously. He has not acquired any premises after the creation of tenancy in respect of the suit premises. Hence clause (h) of Section 14(1) is not attracted.''

3. It is contended by counsel for the petitioner that the premises in question was let out for residential and commercial purposes and, therefore, the landlord could not be entitled to possession under Section 13(1)(e) of the Act. He draws my attention to Exhibit PW-1/2, PW1/3, PW1/9 and PW1/10, which are rent receipts wherein 'commercial purpose' is mentioned. He also contends that the landlord had sufficient alternative accommodation inasmuch as Premises No. 253, Ghee Mandi, Pahar Ganj, is available to the petitioner.

4. On the other hand, counsel for the respondent contends that the premises in question were residential in nature. They are on leasehold land from the LandDO and their use is restricted to residential only. He also submits that rent receipts, PW-1/2, PW1/3, PW1/9 and PW1/10 are fabricated inasmuch as the portion for commercial purpose is an interpolation. He further contends that AW1/3 and AW1/4 are rent receipts of 3.11.1987 and 1.6.1987, which clearly show that the premises in question have strictly been used and let out for the purpose of residence. The word - 'commercial' does not find any mention. The Survey Report, PW-1/11, signed by the petitioner also shows that the premises in question is a residential building.

5. I have heard counsel for the parties and gone through the judgment under challenge as also the material on record. It appears to me that the trial court while appreciating the evidence on record has held that Exhibit PW-1/2, PW1/3, PW1/9 and PW1/10 appear to be interpolated. Inasmuch as the words 'residential cum commercial' have been added, which according to the court, is clear from a naked eye.

6. I have gone through the receipts. The word 'residential cum commercial' appears to be inserted later by a different type, but this fact has not been brought out in the evidence of the landlord. However, Exhibit AW1/3, AW1/4 are receipts of the same premises where the word 'residential cum commercial' is conspicuously absent. Further, a perusal of the Survey Report also indicates that the premises in question is residential.

7. In this view of the matter, I see no infirmity in the finding of the Additional Rent Controller that the premises in question was let out for residential purposes.

8. Coming to the question of alternative accommodation, counsel submits that the Electricity Bill, in respect of Premises No.253, Ghee Mandi, Pahar Ganj, even as of date is in the name of Mr.Narender Nath Bakshi, the landlord, and, therefore, it is wrong to say that the premises is not available to the landlord for residential purposes.

9. Counsel for the respondent, on the other hand, contends that Premises No. 253, Ghee Mandi, Pahar Ganj, is a custodian property, as is evident from PW1/D1, possession whereof is not with the landlord.

10. Heard counsel for the parties. In view of the categoric statement and the Exhibit PW-1/D1, I hold that the so-called reasonable, suitable, alternative accommodation, is not available to the landlord.

11. Counsel for the petitioner also submits that the landlord is not the owner of the premises in question and that the Will, which is the basis of his inheritance, has not been proved. Counsel for the respondent, on the other hand submits that the premises in question stands mutated vide Exhibit PW-1/1.

12. Heard counsel. From Exhibit PW-1/1 it stands established that for the purposes of the Delhi Rent Control Act, the landlord is the owner of the premises in question. In this view of the matter, I find no infirmity in the order under challenge.

13. C.R.668/2002 is dismissed.