HARBHAGWAN DASS v. KHARAK SINGH — 1983 DIGILAW 150 (DEL)

G. C. Jain, J. ( 1 ) THIS is the landlord s petition under Section 25 B (8)of the Delhi Kent Control Act, 1958 (for short the Act ). ( 2 ) ON 7/05/1976, the petitioner, Harbhagwan Dass filed anapplication under proviso (e) to Sub-section (1) of Section 14 read with Section25-B of the Act seeking eviction of the respondent, Kharak Singh from thepremises in suit, consisting of two rooms, kitchen, bath room, latrine,verandah on the first floor and a terrace on the second floor of Flat No. 14,jangpura Extension Market, New Delhi. It was averred that the petitionerwas the owner of the said premises and had let out the same to the respondenton 15/05/1972 on a monthly rent of Rs. 250. 00 for residential purposes only. The family of the petitioner consisted of himself, his wile, two sons and fourdaughters, all grown up and studying. The accommodation in his possessionconsisting of one room which had been divided into two compartments wasinsufficient and he bonafide required the premises in suit for himself and themembers of his family dependent on him. ( 3 ) THE respondent resisted the petition. It was averred" that the latrinewas on the ground floor and not on the first floor, and the application was,therefore, not maintainable. The respondent had constructed a room on theterrace with the consent of the petitioner and had spent Rs. 3500. 00and wasentitled to compensation in case of eviction. The said construction was ofpermanent nature and he had therefore become a permanent tenant. Thesaid room was not included as a part of the tenancy premises and the application was not maintainable. The premises in dispute had been taken by therespondent for and on behalf of the firm Hazara Singh and Sons of whichhe was the sole proprietor, for residential-cum-commercial purposes andwere later on used by the family firm of Kharak Singh styled as Khurmisons. It was also stated that the petitioner was not the owner of the premisesin suit and was in occupation of a reasonably suitable accommodation and hasno bonafide need. ( 4 ) THE learned Rent Controller vide Order dated 5/07/1979 heldthat the petitioner s family consisted of himself, his wife, two sons and fourdaughters. The children were grown up. He was in occupation of a courtyard, verandah and one room which had been created by partitioning ahall. ( 4 ) THE learned Rent Controller vide Order dated 5/07/1979 heldthat the petitioner s family consisted of himself, his wife, two sons and fourdaughters. The children were grown up. He was in occupation of a courtyard, verandah and one room which had been created by partitioning ahall. The other side of the hall was being used by the petitioner as a barbershop and the said accommodation was insufficient for all these family members. She however found that there was no change in the petitioner s financialstatus after the letting and therefore his need was not bonafide. She furtherheld that the premises had been let out for residential cum-commercialpurposes. In view of these findings the petition was dismissed. Feelingaggrieved the landlord has filed this petition. ( 5 ) THE respondent had pleaded that the application was bad beingfor partial eviction because the room on the terrace had not been shownand the latrine was on the ground floor but had been shown on the firstfloor. The latrine has been included as a part of the tenancy premises. Admittedly the latrine meant for common use of the parties was on theground floor. This mis-description of floor however is not sufficient to rejectthe petition when the parties were aware of the correct position. Accordingto respondent s own case the temporary room on the terrace had beenconstructed by him with the consent of the petitioner. He was to take awaythe malba at the time of vacating the premises. The said room was therefore not a part of the tenancy premises. This is further clear from the terms oftenancy contained in memorandum Mark-B relied by the respondent. Theapplication for eviction was therefore not bad for partial eviction. This pleaas a matter of fact was not pressed. ( 6 ) LEARNED counsel for the respondent also did not press the pleathat the respondent had become the permanent tenant. By constructing aroom with the consent of the landlord with the understanding that the malbawould be removed at the time of vacating the premises, a permanenttenancy cannot be acquired. ( 7 ) THAT the petitioner was the owner of the premises in disputestands proved from the admission of the respondent as RW 1 as well asfrom Ext. By constructing aroom with the consent of the landlord with the understanding that the malbawould be removed at the time of vacating the premises, a permanenttenancy cannot be acquired. ( 7 ) THAT the petitioner was the owner of the premises in disputestands proved from the admission of the respondent as RW 1 as well asfrom Ext. AW7/l, copy of the lease and conveyance deed in respect ofthis property which was duly proved by AW 7, Nawal Kishore a L. D. C. in the office of the Land and Development Officer, New Delhi. ( 8 ) THE petitioner as AW 1 deposed that his family consisted ofhimself, his wife, two sons aged 23 and 14 years and four daughters aged24 years, 22 years, 21 years and 27 years. To the same effect is the statement of AW 5, Om Parkash There is no evidence in rebuttal. No in firmityin this evidence was pointed out to me. This evidence was accepted ascorrect by the learned Rent Controller and this finding has not beenassailed. ( 9 ) SIMILARLY the correctness of the finding of the learned Rentcontroller that the petitioner was in occupation of one room which accomodation was insufficient for all the members of his family was not challenged. This finding is based on the unrebutted testimony of AW 1 and AW 5 and iscorrect. ( 10 ) LEARNED counsel for the petitioner however assailed the findingthat the need was not bonafide. It was argued that children of the petitionerhad since grown up and in any case a poor barber also had a right tomake himself more confortable. ( 11 ) THE expression bonafide used in the proviso (e) to Sub-section (1) of Section 14 means genuine and not fanciful. The landlord must provethat he needed the premises, the need was genuine and not a frivolous one. It is also to be seen whether the landlord was motivated by extraneousconsiderations in trying to recover the possession from the tenant. In thepresent case, the family of the landlord consists of 8 members, all grownup. It is difficult to understand how all the grown up family memberscould even sleep on the floor of one room which is about 11 -4" X 13 - 2"asper plan Ext. AW 4/2. The fact that the petitioner was a barber and therewas no change in his financial status is of no significance. It is difficult to understand how all the grown up family memberscould even sleep on the floor of one room which is about 11 -4" X 13 - 2"asper plan Ext. AW 4/2. The fact that the petitioner was a barber and therewas no change in his financial status is of no significance. He had a rightto live properly andcomfortable. The circumstance that earlier he let outthe premises does not debar him from making himself comfortable. Itcannot be ignored that during the five years time his children havegrown up considerably, creating a lot of shortage of accommodation andinconvenience. There is nothing on the record to suggest that the petitionerhas no genuine desire to occupy the premises or had a mind to let out thepremises in suit after getting it vacated. It is correct that the respondentsoonafter the creation of tenancy in his favour filed an application forfixation of standard rent and the standard rent has been fixed at Rs. 150. 00per month and the appeals are pending. This itself however is not sufficientto hold that the petitioner landlord was motivated by extreneous circumstances keeping in view the number of the family members of the petitionerand the extent of accommodation with him. His need was genuine andbonafide. Finding of the learned Controller was illegal. ( 12 ) TO succeed, the landlord has also to prove that the premises inquestion had been let out for residential purpose. It is settled law that theburden to prove the fact rests on the party who substantially asserts theaffirmative of the issue and not upon the one who denies it. Therefore, itwas the duty of the landlord to prove that the letting purpose was residentialonly. The contention of the learned counsel for the petitioner to thecontrary cannot be accepted. ( 13 ) THERE is no formal rent note or lease deed. The petitioner hasrelied on the memorandum marked-A containing the terms of the lease. The respondent on the other hand, has produced another documentmarked-B which purports to be a copy of the rent note. None of these docu-ments has been duly proved. In any case, none of these documents providesfor the letting purpose. ( 14 ) BOTH the parties, however, have led oral evidence consistingof their own statements. The respondent on the other hand, has produced another documentmarked-B which purports to be a copy of the rent note. None of these docu-ments has been duly proved. In any case, none of these documents providesfor the letting purpose. ( 14 ) BOTH the parties, however, have led oral evidence consistingof their own statements. The petitioner besides his own statement examinedaw 2, Gian Chand, who deposed that the terms of the tenancy weresettled in his presence and the premises was let out for akhand Path andthe respondent was to vacate it after the akhand Path . This evidencewas rightly rejected by the Rent Controller because it was not the case ofthe petitioner that the respondent was to vacate the same after the akhand Path . ( 15 ) THE respective statements of the partics have to be examined inthe light of the surrounding circumstances at the time of letting. Thefactors to be examined for letting purpose are the nature of the premises,the location of the building, the dominant use to which it was put andother relevant circumstances. ( 16 ) AN examination of AW 7/1, copy of the lease and conveyancedeed, reveals that the building was a shop-cum-flat shop on the groundfloor and the flat on the upper floor. Even in the document marked-B whichwas produced by the respondent, the premises were described as a flat . The word flat , according to the Concise Oxford Dictionary, means astorey, a suite of rooms on one floor as residence, an apartment. Admittedlythe premises in dispute is on the first floor. Passage to the premises isfrom the back lane. Thus, the nature of the premises indicates that thepremises are residential. ( 17 ) RESPONDENT s case as set up in para 6 of the written statementis that the premises in suit had been taken on lease for and on behalf ofhazara Singh and Sons of which the respondent was the sole proprietor. Later on business in these premises was carried on in the name of khurmisons . Admittedly at the time of letting Hazara Singh and Sons had aregular business premises at A-333, Defence Colony, New Delhi. There isno suggestion even that any branch office of this firm was opened in thepremises in suit. Later on business in these premises was carried on in the name of khurmisons . Admittedly at the time of letting Hazara Singh and Sons had aregular business premises at A-333, Defence Colony, New Delhi. There isno suggestion even that any branch office of this firm was opened in thepremises in suit. No evidence except the respondent s oral statement hasbeen produced that any business of Hazara Singh and sons was startedin the premises soon after taking the premises on lease. Respondent hasproduced receipts Ex. RW 1/3 to RW 1/5 which are on printed voucherform of this firm. It shows that the firm maintained vouchers. Therespondent admitted that he had bills since 1972. No such documentshowing any business transaction at these premises has however beenproduced. In these circumstances respondent s statement that business was carried on here since the inception of tenancy cannot be accepted. Moreover even the plea in the written statement was that business in thepremises was started later on in the name of khurmi Sons . ( 18 ) THERE is no satisfactory evidence to prove that any business wascarried on these premises in the name of khurmi Sons and if done sincewhen. RW 1, the respondent stated that when he started business in thepremises he shifted his telephone here from Defence Colony. He admittedthat he received the bills for the telephone installed in these premises in 1975. Thus according to his own case business in the name of Khurmi Sons wasstarted here in 1975 i. e. after about three years of the creation of thetenancy. ( 19 ) THERE is no satisfactory evidence to prove that any business inthe name of Khurmi Sons was carried on at any time. Respondent has notproduced any cash memo, bill, books of account, any order placed by thefirm and/or on the firm. ( 20 ) THE Rent Controller, it appears, has been influenced by somedocumentary evidence which, in my opinion, has no intrinsic value. RW1/1is a licence which was issued to the respondent on 13/07/1977 under thedelhi Shops and Establishments Act, 1954- in respect of the establishmentkhurmi Sons, first floor, 14 Jangpura Extension Market, New Delhi. Therespondent s statement shows that he applied for the licence four monthsbefore it was granted to him. Thus, it is clear that the application forgrant of the licence was filed long after the filing of the present petition. Therespondent s statement shows that he applied for the licence four monthsbefore it was granted to him. Thus, it is clear that the application forgrant of the licence was filed long after the filing of the present petition. This certificate therefore has no evidentiary value. ( 21 ) RW1/2 is a letter dated 13/10/1972 from the Registrar oftrade Marks addressed to the respondent at the address of the premises indispute. He was informed that the scaich had been made in respect ofelectric heater and heating elements etc. , and there did not appear to beany mark on record which resembled to his mark royal . This is just acorrespondence addressed in the respondent s personal name and from thisletter it cannot be said that he was carrying on business at the premises indispute. It simply shows that the respondent was taking steps for gettingthe trade mark roy ai registered and noihing more. ( 22 ) RW1/3 to RW1/5 are the rent receipts on the vouchers of Hazarasingh and Sons signed by the respondent. Respondent in cross-examinationhas admitted that the premises had been taken on lease in Ins own name. On these documents the address given is that of Defence Colony. Thesedocuments do not show that business was carried on in these premisesindispute. ( 23 ) RW1 /6 to RW 1/7 are the money order coupons whereby someamount was sent to the respondent and the sender s name has been mentionedas khurmi Sons . These payments were made after the filing of the petition. The petitioner is, admittedly, an illiterate barber and the fact that hereceived rent sent by Khurmi Sons is no circumstance to show that premiseswere used at the time of letting or thereafter for the purposes of residence. ( 24 ) THE respondent has also produced on record document marked A,which is a copy of the licence granted to him by the Municipal Corporation. This again is for the year 1977-78 and therefore is of no help. It is admittedthat the name khurmi Sons is printed on a glasspane of a room of disputedpremises. This in itself is not sufficient to prove that business was carried onthere. This again is for the year 1977-78 and therefore is of no help. It is admittedthat the name khurmi Sons is printed on a glasspane of a room of disputedpremises. This in itself is not sufficient to prove that business was carried onthere. ( 25 ) THE description of the premises in dispute, the nature of thepremises, the user to which it was put immediately after the letting and eventhereafter till the date of filing the application corroborate the statement ofthe petitioner that the premises in dispute had been let out only for residential purposes. The Rent Controller was not at all justified in recording thefinding to the contrary. ( 26 ) LEARNED counsel for the respondent contended that this was arevision and not an appeal and finding of fact recorded by the Rentcontroller was not liable to be reversed in revision. It is correct that undersection 25b (8) of the Act the High Court exercises only revisional and notapellate jurisdiction. This power, however, is wider than that under Section115ofcpg. This court is competent to examine the record in order tosatisfy itself that the decision of the Controller was according to,law. Findingof fact recorded by the Controller which was perverse or contrary to evidenceor based or no evidence could be set aside. In the present case, the entireapproach of the Rent Controller was wrong. She did not take into consideration the factors which were required to be considered for the lettingpurpose. She was influenced by evidence which had no intrinsic value. Her finding in such circumstances was preverse and liable to be set aside inexercise of revisional jurisdiction of this Court. ( 27 ) ALL the ingredients of proviso (e) to Sub-section (1) of Section14 having been proved the petitioner is entitled to an order of eviction. I,therefore, accept the petition, set aside the impugned order and grant anorder of eviction in favour of the petitioner against the respondent in respectof premises in dispute under proviso (e) to Sub-section (1) of Section 14. The respondent is allowed six months time from today to vacate the premises. He would beentitled to remove the mnlba of the temporary room constructed by him on the terrace, while vacating the premises in dispute. Thepartics arc, however, left to bear their own costs.