Parmeshwari Bai vs Raj Narayan Dahiya
2006 Latest Caselaw 403 Del

JUDGMENT

R.S. Sodhi, J.

1. C.M.(M) 215/2001 seeks to challenge the judgment dated 19.03.2001 of theAddl. Rent Control Tribunal, Delhi (for short 'the Tribunal') in R.C.A. No. 6/2001 whereby the Tribunal, while adjudicating on an appeal from the order of the Additional Rent Controller dated 30.11.2000 dismissing the petition under Section 14(1)(j) of the Delhi Rent Control Act (for short 'the Act') and passing an eviction order under Section 14(1)(b) and 14(1)(h) of the Act, partly allowed the appeal upholding the order of eviction under Section 14(1)(b) of the Act and setting aside the order of the Controller under Section 14(1)(h) of the Act.

2. Brief facts of the case, as have been narrated by the Additional Rent Controller, are as follows:

This eviction petition relates to one room on the ground floor of property No. 63401/2/Part-2, Ward No. XII, Block-A, House No. 1-A, Kamla Nagar, Delhi-7, with common use of latrine and bath room on ground floor itself which petitioner has filed against the petition under Section 14(1)(b),(h) & (i) alleging that the room and one kolki had been let out to respondent on 5.6.92 by predecessor in interest of petitioner. Subsequently, however, respondent surrendered the tenancy of kolki and she remained a tenant only in respect of one room and common facilities. The premises were let out to her for residential purposes @ Rs. 20/- per month excluding electricity and water charges. It is claimed that during subsistence of tenancy, respondent acquired vacant possession of residentialhouse No. 37-A(Municipal No. 6358) Kamla Nagar, Delhi and she has shifted there since many years after parting with possession of whole of the tenanted premises to her married daughter Smt. Raj without obtaining the consent in writing of petitioner. Smt. Raj is living in the premises along with her husband and children. It is further alleged that respondent has caused or permitted to be caused substantial damage to the building by constructing puce dochhatti, hence she is liable to be evicted there from.

2. In written statement respondent stated that no cause of action has accrued to the petitioner therefore petition is not maintainable. Further petitioner has suppressed material facts in petition. An eviction petition bearing No. 745/70 had been filed by predecessor in interest of petitioner against the respondent in respect of the tenanted premises which has compromised in the court of Shri V.S. Aggarwal, then learned A.R.C. It had been agreed between the parties that premises in question shall be used by respondent for residential purposes for her family members and for the servant employed in the business being carried out by her. Afresh agreement dated 7.5.1973 was also executed by them inter-alia containing that premises shall not be got vacated from the tenant on any ground till such time the business of Adarsh Restaurant is continuing to run in 1A, Kamla Nagar, Delhi except in case of default in payment of rent. The respondent in view of said compromise had surrendered the possession Kolki to the petitioner and continued to be tenant in respect of the remaining portion. The said previous eviction petition had been dismissed as withdrawn on 18.4.1973. In view thereof the earlier agreement of 1962 became void and the present petition having been filed in violation of the subsequent agreement is not maintainable. It is contended that petition is bad for non-joinder of necessary parties as petitioner has filed no document to show the that suit premises fell to his share only.Respondent has not parted with the possession of suit premises. There was therefore no question of obtaining consent of the landlord in this respect. She also denied being not in occupation of the premises. Respondent denied that she has caused substantial damage to the premises in question. With these pleas she urged for dismissal of petition with costs.

3. In replication while reiterating the contents of petition and refuting the adverse contents of written statement that if there exists any such document the same is null and void. In any case no restaurant or hotel is being run after 19.1.1988 in the premises owned by petitioner. The shop in whichrestaurant was being run by respondent has been surrendered to the petitioner. It is claimed that tenancy premises had fallen to the share of petitioner after partition and it has already been mutated in his favor. The respondent has also accepted the petitioner as here landlord.

4. In evidence petitioner examined only himself as PW1 and prove the site plan Ex. PW1/1, counter foils of rent receipts as Ex. PW1/2 and Ex. PW1/3, agreement Ex. The agreement was originally bearing deficient stamp duty. It was exhibited only after payment of deficient stamp duty, as well as penalty. Petitioner closed his evidence on 30.11.95. Respondent appeared as RW1 and proved the rent agreement as Ex RX ( This document has been exhibited after payment of deficient stamp duty and penalty). Certified copy of order in previous eviction petition as Ex. RW1/1 and certified copy of petitioner therein as Ex. RW1/2. She closed her evidence on 29.10.96.

3. It was contended by counsel for the petitioner that merely because the daughter of the petitioner was living in the suitpremises does not mean that the tenant had parted with possession.He contended that the admission of the tenant to the effect that her daughter was living in the suit premises cannot be taken as an admission ofhanding over possession as required under Section 14(1)(b) of the Act.

4. Counsel for the respondent contended that at no point of time has thetenant denied thepositive case of the landlord that possession of the premises in question has been parted with to Ms. Raj Rani, the married daughter of the tenant. He contended that in the absence of any denial the tenant isdeemed to have admitted the parting of possession.

5. I have heard counsel for the parties and have, with their assistance, gone through thestatements of witnesses as also pleadings and the judgments on record.The only point at issue iswhether thelandlord has been able to prove the ground under Section 14(1)(b) of the Act, namely, that the tenant has parted with possession of the premises to Ms. Raj Rani. The Controller, while dealing with this issue, has held that Raj Rani is the married daughter and is living in the premises in question along with her husband and family members.The stand taken by thetenant that Ms. Raj Rani is living at House No. 37-A, Kamla Nagar, Delhi, has not been substantiated.Specific assertions in the plaint in paragraphs 5 and 16 as also elsewhere that possession of the suit premises has been surrendered to Ms. Raj Rani, is not categorically denied.AW-1, who was cross-examined, was not challenged on her statement that "at present the premises are in possession of one married daughter of the respondent.Her name is Raj Rani.She is residing in the premises with her husband and a minor son".Therefore, I find nothing on record to show that the tenant has retained legal control over the suit premises and in the absence of positive denial by the tenant of the allegations made by the landlord that possession of the premiseshad been surrendered to the married daughter, Ms. Raj Rani,without obtaining consent in writing leads but to the conclusion that the ingredients of Section 14(1)(b) of the Act have been satisfied.Even otherwise, the two courts below have concurrently come to the conclusion that the tenant has parted with possession of the tenanted premises to her married daughter, Ms. Raj Rani, without obtaining the consent in writing of the landlord.

6. In that view of the matter, I find no reasons to interfere with the orders under challenge.The petition is dismissed. The trial court record be sent back forthwith.