Harsh Talwar vs Rani Gadhoke Decd. Through Lrs
2012 Latest Caselaw 564 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 27.01.2012

+ CM (M) No. 107/2012, CAV No.92/2012 & CM Nos.1660-
62/2012

HARSH TALWAR                                            ..... Petitioner
                           Through:    Mr. Sanjiv Kakra, Advocate.

                      versus


RANI GADHOKE DECD. THROUGH LRS         .... Respondent
                 Through: Mr.Sanjeev Sindhwani, Adv.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 Order impugned before this Court is the judgment of the

Additional Rent Control Tribunal (ARCT) dated 20.10.2011 which

in an appeal under Section 38 of the Delhi Rent Control Act

(DRCA) had endorsed the finding of the Additional Rent Controller

(ARC) dated 19.04.2008 wherein the eviction petition filed by the

landlord namely Rani Gadhoke (through legal representatives)

and others seeking eviction of the tenant Harsh Talwar from the

second floor of property No. 44, Ring Road, Lajpat Nagar, ITI,

New Delhi on the grounds contained in Section 14 (1) (c), (d) &

(h) of the DRCA had been decreed.

2 Record discloses that the eviction petition had been filed by

the landlord under the aforenoted provisions of law as also the

ground (k) under Section 14 (1) of the DRCA but the said

provision is not relevant for the controversy in dispute before this

Court. Eviction petition discloses that the premises had been let

out to the respondent for a residential purpose; neither the

respondent and nor his family is residing in the premises since the

last two years; they have shifted their residence to property No.

90, Panchsheel Park, New Delhi; the tenant has also acquired

another premises; premises are being misused as the premises

had been let out for a residential purpose but are being used for a

commercial purpose. The tenant had been asked to stop the

misuse by a legal notice dated 24.07.1980 but inspite of service of

the said notice, the respondent had not stopped the misuse. He is

using it in a manner contrary to the purpose for which it has been

let out and against the bye-laws of the MCD. A second notice

dated 31.12.1998 was also served upon the tenant. In the eviction

petition, it has further been contended that the barsati floor does

not have any separate electricity meter; it is connected with the

ground floor.

3 Written statement was filed. It was denied that the premises

were being put to misuse; contention of the tenant was that the

premises had been let out for commercial purpose only and this

was well within the knowledge of the tenant and there has been a

continuous user of the premises in the same manner i.e. a

commercial purpose; case for misuse is not made out. Admittedly

from the ground floor a proprietorship firm under the name and

style of M/s Yak International + CIE is being run; contention of

the tenant being that the landlord had let out these premises i.e.

second floor later in time from the ground floor; the ground floor

tenancy had been created in favour of the tenant on 01.01.1978; it

was a tenancy created under Section 21 of the DRCA; the present

tenancy on the second floor had been created in April, 1978 for a

distinct purpose which was for a commercial use; grounds under

Section 14 (1)(c),(d) & (h) are not made out. Further contention of

the tenant was that admittedly the landlord has service a legal

notice for misuse upon the tenant as way back on 24.07.1980 and

the eviction petition having been filed on 08.04.1998 i.e. after a

lapse of almost 19 years shows that the landlord had impliedly

consented to the user of the said premises for a commercial

purpose; the landlord has now no right to agitate this issue as he

has slumbered over this right, if any, since the last 19 years; the

impugned judgment is liable to be set aside.

4. Oral and documentary evidence was led by the respective

parties. There was one witness produced on behalf of each party.

The landlord AW-1 had reiterated his averments on oath in Court.

RW-1 had filed his affidavit dated 14.11.2007. Paragraph 6 is

relevant for the controversy in dispute; it reads as under:-

"6. That since the relationship between the landlord and the dependent was extremely good and the deponent required extra accommodation. He requested the then landlord S.R. Gandhoke to let out the second floor including two site terraces on the second floor and a terrace/roof top floor of the property bearing No. 44, Ring Road, Lajpat Nagar-III, New Delhi. The oral tenancy was created in favour of M/s. Yak International + CIE which is a proprietary concern of the respondent and the premises were given for commercial purposes as the deponent required the same for use of only commercial purpose. The very fact that there is no kitchen on the second floor, no wardrobe/wooden almirah, showcase etc. shows that the premises was let out only for commercial purposes. It is further stated that in the suit premises there is a provision of wooden racks for storing files, all other articles required for commercial activities."

5. The language used in this paragraph has been highlighted

by learned counsel for the respondent/landlord to substantiate his

submission that even the tenant in this paragraph has admitted

that the premises i.e. second floor had been let out to him as an

extra accommodation meaning thereby that the ground floor

which was admittedly a tenancy created in favour of the tenant

under Section 21 of the DRCA and the second floor was an extra

accommodation which added to it and it was thus clearly a letting

for a residential purpose. This submission of learned counsel for

the respondent has considerable force. This is especially so that it

keeping in view the pleadings and the evidence led between the

parties which has been interpreted in eh correct perspective by

the Court below.

6. Admittedly this was an oral tenancy which had been

created; there was no documentary evidence on either side which

could be adduced in support of their respective case. Record

shows that in the legal notice dated 24.07.1980, a specific plea

had been made by the landlord that the premises had been let out

for a residential purpose but it was being used for a commercial

purpose; receipt of this legal notice is not denied. No reply has

been filed to this legal notice. A second legal notice was issued by

the landlord on 31.12.1998 to which a reply had been filed

disputing its contents. It was at this stage that the tenant had

taken up the plea that the premises had all alone been let out for a

commercial purpose; this was in fact within the knowledge of the

landlord himself; had it not been so, the creation of tenancy for

the second floor would have also been a tenancy under Section 21

of the DRCA. It had further been contended that it is also

admitted by the landlord that NBCC who was the earlier tenant in

the said premises was also using these premises for a commercial

purpose.

7. The last contention of learned counsel for the petitioner

shall be dealt with in the first instance. Admittedly the NBCC had

taken these entire premises i.e. the ground floor, first floor and

second floor of 44, Ring Road, New Delhi. Contention of the

landlord is that these premises had been let out for residential

purpose but the NBCC was using it for commercial purpose;

which was a misuse; this was a tenancy for one year and NBCC

had thereafter vacated the premises. Thereafter the tenancy of

the ground floor and the first floor was created by the landlord

admittedly under Section 21 of the DRCA which was for a

residential purpose. Both the courts below had considered the

evidence adduced before it and had held that the tenancy created

of the second floor was an extra/extended accommodation; the

word „accommodation‟ also carries a mileage; the extra

accommodation would necessarily be an extension of

accommodation which was already available with the tenant

which was admittedly the ground floor. It is an admitted fact that

this tenancy of the ground floor was entered into on 01.01.1978

and within two months i.e. in March-April, 1978, the second

floor/barsati had also been let out to the tenant. RW-1 in his cross-

examination has also admitted that he has no documentary

evidence to show that he is carrying out his business from the

second floor; his contention that there was separate electricity

and water bills issued for these premises is not substantiated as

the only electricity bill produced were for the periods which were

post litigation i.e. of 2003 and if his contention that right from the

inception, the second floor was being used for a commercial

purpose having a separate electricity connection, nothing

prevented him from filing documents for this period which was

from March-April 1978. RW-1 has also admitted in his cross-

examination that in all the advertisements issued by his company,

the address does not show it as the barsati floor. Both the Courts

below in this scenario had correctly noted that the tenancy of the

second floor is only an extension of the accommodation of the

ground floor and since the ground floor was admittedly let out for

a residential purpose; the present letting was also residential. This

finding cannot be faulted with. Even in the grounds of appeal filed

by the tenant before the RCT (para 15) show that the contention

of the tenant is that the premises had been let out by the landlord

for a residential purpose but they were being misused by the

NBCC. It was in these circumstances, that landlord had

hereinafter for the subsequent tenancies thought it fit to create a

tenancy under Section 21 of the DRCA which he had done for the

ground floor and the first floor; and the second floor being only an

extension of accommodation of the ground floor (which was a

creation within two months) was also a letting for residential

purpose.

8. Record further shows that the ground floor of the premises

had not been vacated by the tenant; an eviction petition had been

filed to which the objections had been filed by the tenant in 1980.

The matter reached the High Court and then to the Apex Court;

the Supreme Court on 08.06.1998 had finally dismissed the appeal

of the tenant and the tenant pursuant to the orders of the

Supreme Court has since vacated the suit premises. Certain dates

would be relevant in this context. Present eviction petition qua the

second floor had been filed on 08.04.1999. This was preceded by a

legal notice dated 31.12.1998. All this was within a short span of

dismissal of the SLP of the tenant on 08.06.1998; contention of

the landlord that since the tenancy created of the second floor

was a continuation of the tenancy of the ground floor and since

the ground floor of the suit premises was vacated only after the

SLP had been dismissed on 08.06.1998 immediately thereupon the

present legal notice dated 31.12.1998 was served upon the tenant

asking him to vacate this property. This explanation furnished by

the landlord is plausible and accepted by both the two courts

below. There is no reason as to why this Court should interfere

with such a reasoned finding as is vehemently contended by

learned counsel for the petitioner.

9. This Court is sitting in its power of superintendence under

Article 227 of the Constitution of India and unless and until a

flagrant injustice or manifest illegality has been committed by the

two courts below, powers of interference are limited. The Apex

Court in Waryam Singh Vs. Amarnath AIR 1954 SC 215 a

judgment of the Constitution Bench has laid down the guidelines

which were to be followed by the High Courts in exercise of its

powers of superintendence. This Court is not an appellate forum.

Merely because another view than the view taken by the court

below is a possible view, the High Court may not interfere in its

powers of superintendence. No patent illegality has also been

pointed out by learned counsel for the petitioner. In this

background, the impugned judgment does not call for any

interference.

10. The last contention of the petitioner that acquittal of the

accused in prosecutions which had been launched against him

under Section 29 (2) of the DDA Act also show that the premises

were in fact being used for a commercial purpose right from the

inception i.e. from 1962 is a submission without force. It has also

been dealt with by the two courts below. An acquittal in a criminal

prosecution (where admittedly the landlord was not a party) does

not in any manner support the submission of the tenant that the

landlord had consented to the user of the premises for a

commercial purpose.

11. Reliance by learned counsel for the petitioner upon the

judgment reported as AIR 1992 SC 799 Smt. A.N. Kapoor, Vs.

Smt. Pushpa Talwar is misplaced; this was a case where there was

no dispute that the premises which had been initially let out for a

residential purpose were being used as a guest house since 1961

which was a fact well within the knowledge of the landlord who

did not ever raise any objection; in this factual context, the Court

had noted that the ground of eviction available under Section 14

(1)(e) of the DRCA (which till that time was available only for

residential purpose) being prior in time to AIR 2008 3146

Satyawati Sharma (Dead) by L.R.s vs. Union of India & Another

was no longer available to such a litigant; facts of the said case

are distinct and have no application to the facts of the present

case.

12. Petition is without any merit. Dismissed.

                                           INDERMEET KAUR, J
JANUARY       27, 2012
A