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1966 DIGILAW 10 (DEL)

SHYAM SUNDER v. KHAN CHAND

1966-01-19

H.R.KHANNA

body1966
H. R. Khsnna ( 1 ) THIS second appeal under section 39 of Delhi Rent Control Act (No. 59 of 1958), hereinafter REFERRED TO as the Act filed by Sham Sunder is directed against the order of Rent Control Tribunal, Delhi, affirming on appeal the order of the Controller whereby an order for ejectment of the appellant from the premises in dispute was made in favour of Khan Chand, respondent. ( 2 ) THE brief facts of the case are that the appellant is occupying the premises in dispute, which consist of one room, a tin shed, a store and a terrace, situated in Basti Harphul Singh, Delhi, as a tenant of the respondent on a monthly rent of Rs. 8. The respondent made an application for ejectment of the appellant under section 14 of the Act on the allegation that the appellant had acquired vacant possession of a residence at 9, Kishan Ganj, Delhi. ( 3 ) THE application was resisted by the appellant who denied that he had acquired vacant possession of a residence at Kishan Ganj. According to the appellant, he and the other members of his family including his brother and widowed mother, were residing in the suit premises as displaced persons from 1948. The appellant s brother got married in 1949 and had three children. The appellant had four children and the entire family consisted of twelve members. As the premises in dispute consisted of one small room and were insufficient for the members of his family, the appellant got one small barsati in Kishan Ganj for accommodating the family. The whole of the family was in occupation of both the premises. According to the appellant the expansion of the members of the family necessitated the getting of additional accommodation, and this fact did not amount to acquiring vacant possession of a residence as contemplated by law. ( 4 ) THE Controller held that the appellant had acquired vacant possession of a residence and as such ordered his ejectment. The order of the Controller, as stated above, was affirmed on appeal by the Tribunal. ( 4 ) THE Controller held that the appellant had acquired vacant possession of a residence and as such ordered his ejectment. The order of the Controller, as stated above, was affirmed on appeal by the Tribunal. Clause (h) of the proviso to sub-section (1) of section 14 of the Act, under which the order for the ejectment of the appellant has been made, provides that an order for recovery of the permises may be made on the ground- "that the tenant has, whether before or after the commencement of the Act, built, acquired vacant possession of, or been allotted, a residence. "in the present case the Controller appointed Shri K. L. Sawhney as Local Commissioner to visit the premises at No. 9, Kishen Ganj. Delhi, and he found thut the appellant was in possession of those premises which consisted of one living room, one bath room, one kitchen one latrine and an open space. This is a complete set of residence according to the standard and mode of living of the appellant because the premises in dispute were, if anything, less spacious than the new premises taken on rent by him in Kishen Ganj. The appellant could thus be said to have acquired possession of another place for his residence. ( 5 ) MR. Misra on behalf of the appellant has argued that the appellant took the premises in Kishen Ganj on rent because his younger brother had got married and as a result of birth of children the strength of the families of the appellant and his brother had gone up to twelve. The necessity of taking the premises in Kishen Ganj on rent aros3, it is submitted, because the premises in dispute had become insufficient for the needs of the family of the appellant. In this respect I am of the view that if the premises in dispute were not sufficient for the requirement of the family of the appellant and he was on that account impelled to take other premises, he should have vacated the prerniaes in dispute. The underlying object of enacting clause (h) of the proviso to sub-section (1) of section 14 of the Act was that the tenant should not have more than one premises for his residence in these days of housing shortage. The underlying object of enacting clause (h) of the proviso to sub-section (1) of section 14 of the Act was that the tenant should not have more than one premises for his residence in these days of housing shortage. In case the tenant has taken on reat any premises for his residence and he thereafter acquires the vacant possession of another premises for his residence, the tenant in such an event uality would have to quit the earlier tenanted premises. ( 6 ) MR. Misra, however, points out that the new premises in Kishen Ganj, which the appellant has taken on rent, are not so pacious as to accommodate both the families of the appellant as well as his brother, who used to live with the appellant. Although it is open to question if the family of the brother of the appellant, who is doing independent separate business, can be considered to be part of the family of the appellant, the contention advanced by Mr Misra. is liable to be repelled on another ground. It is for the tenant when he takes the new place for his residence to see that it is sufficient for his needs. Having taken vacant possession of the new premises for residence, he cannot refuse to vacate the earlier tenanted premises on the ground that the new premises, the possession of which he has acquired for residence, are not sufficient for his requirement. I may in this connection point to the change which has been introduced in the language of clause (h) of the proviso to sub-section (1) of section 14 of the Act reproduced above. This clause replaces clause (h) of the proviso to sub-section (1) of section 13 of the Delhi and Ajmer Rent Control Act No. XXXVIII of 1952), according to which a tenant was liable to be ejected if- "the tenant has, whether before or after the commencement of this Act, built, acquired vacant possession of, or been allotted a suitable residence. "the word "suitable" in the corresponding clause of Act XXXVIII of 1952 has been omitted in Act 59 of 1958, and ore can take it that this omission by the legislature was deliberate and not without significance. It would consequently be not necessary to show that the new place acquired by the tenant is also suitable for his needs. "the word "suitable" in the corresponding clause of Act XXXVIII of 1952 has been omitted in Act 59 of 1958, and ore can take it that this omission by the legislature was deliberate and not without significance. It would consequently be not necessary to show that the new place acquired by the tenant is also suitable for his needs. The argument on behalf of the appellant that the premises taken by him in Kishen Ganj are not sufficient for the requirement of his family cannot, in the circumstances, be allowed to prevail. ( 7 ) MR. Misra then contends that the appellant has, during the pendency of the ejectment proceedings, vacated the premises in Kishen Ganj. This fact, in my opinion would not make material difference because the appellant became liable to ejectment when he shifted to his new place of residence after having acquired vacant possession of the same. Once that liability to ejectment has been incurred the same cannot be undone by the appellant surrendering possession of the premises he took on rent in Kishen Ganj. Reliance on behalf of the appellant has been placed upon Maharaj Jagat Bahadur Singh v. Bairi Pafshaj. S^w and Ulessrs Gitlab Rai Kishori La v. Shri Banarsidas Chandiwala Sewa Smurak Trust, Delhi, to show that if the ground of ejectment has ceased to exist the application for ejectment is liable to be dismissed. In the case of Maharaj Jagat Badadur Singh the landlord sought the ejectment of the tenant from a cinema building on the ground that he required the building to be vacated in order to carry out the repairs having been directed to do so by the authorities concerned. The Executive Engineer during the pendency of the ejectment proceedings reported that satisfactory repairs had been done. It was held that the Rent Controller should have taken into consideration that fact. In the case of Messrs Gulab Rai Kishori Lal the landlord trust filed suit for ejectment against its tenants on the ground that it bonafide required the tenanted premises for the furtherance of its activities for the setting up of a school therein. When the matter came up in revision it was found that the trust had transferred it? In the case of Messrs Gulab Rai Kishori Lal the landlord trust filed suit for ejectment against its tenants on the ground that it bonafide required the tenanted premises for the furtherance of its activities for the setting up of a school therein. When the matter came up in revision it was found that the trust had transferred it? property including the premises in dispute to a college for its income, and that alternatively the landlord trust was negotiating to sell the property to the Corporation at a price made higher by the fact that the tenants would have been removed. It was held that these facts cculd be taken into consideration to see as to whether the land lord-trust bona fide required the premises for the establishment of a school therein. The above cases, are evidently distinguishable and cannot help the appellant for the liability of the appellant to be ejectedarose because of his having acquired vacant possession by taking on rent new premises. A distinction has to be kept in view between the cases where the liability of the tenant for ejectment arises because of some act or omission or default on his part, and those cases where the ejectment of the tenant is sought not because of any act, omission or default on the part of the tenant but for some other reason. In cases where the tenant becomes liable to ejectment because of any act or omission or default on his part he cannot avoid ejectment except in cases where the statute itself grants some relief and makes provision for the condonation of the default. For example where a tenant sublets the premises against the terms of the statute and thus incurs the liability to ejectment the subsequent eviction of the subtenant would be no answer to proceedings for ejectment brought by the landlord against the tenant. See in this connection Naurang Lal v. Suresh Kumar, ( 8 ) LASTLY, it is argued by Mr. Misra that the word "acquired" in clause (h) shows that the new premises which are obtained by the tenant should be on a permanent basis like purchase and that in case the tenant acquires new premises for residence by taking them on rent the clause would not be attracted, There is no force in this contention. Misra that the word "acquired" in clause (h) shows that the new premises which are obtained by the tenant should be on a permanent basis like purchase and that in case the tenant acquires new premises for residence by taking them on rent the clause would not be attracted, There is no force in this contention. The words used in clause (h) reproduced above are not "acquired ownership" of the premises, but "acquired vacant possession. " One can acquire vacant possession of premises for residence even without becorning owner thereof and there is no warrant for the proposition that clause (h) would not be attracted if the new premises, of which the tenant has acquired vacant possession for residence, have been taken by him on rent and not by purchase. The same view was taken by Jindra Lal J. in Des Raj Goyal v. Satya Parkash Gupta, decided on 26th October, 1964. ( 9 ) THE appeal consequently fails and is dismissed, but, in the circumstances, I leave the parties to bear their own costs.