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2006 DIGILAW 1364 (DEL)

ANMOL KUMAR v. TRILOK CHAND

2006-08-17

SANJAY KISHAN KAUL

body2006
SANJAY KISHAN KAUL, J. ( 1 ) THIS application has been filed under Order 22 Rule 10a read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code)on the ground that the eviction petition was contested only by respondent Nos. 1 to 3 and thus it is not necessary to implead the legal heirs of deceased respondent Nos. 4 and 5 who were ex parte before the Trial Court and whose legal heirs have not been traced out. ( 2 ) IN view of the aforesaid, the application is allowed. ( 3 ) THE petitioners have filed an eviction petition under Section 14 (1) (e) read with Section 25b of Delhi Rent Control Act, 1958 (hereinafter referred to as the said Act) against the respondents in respect of a garage in premises No. 25/151, shakti Nagar, Delhi. It was stated in the petition that the premises were let out for residential purposes but were being misused by running a printing press. The property was stated to have been purchased by the petitioners from the previous owner Shri Som Dutt vide Sale Deed dated 2. 1. 1981 and the total property consists of a house in which this garage is located. The allegation of the petitioners is that respondents have even caused damages to the tenanted premises by reason of running of the printing press. The garage was stated to be required bonafide by the petitioners for parking their car No. DHA 5435 as there was no other reasonable suitable premises for parking the car. In the written statement the respondents took a stand that the printing press was in existence from the very beginning and thus the property was let out for commercial purposes. It is alleged that the whole of the property is commercial and the petitioners have sufficient space in the property to park their vehicle. Leave to defend was granted to the respondents and after trial in terms of the impugned judgement dated 27. 2. 1998 of the Additional Rent Controller the eviction petition has been dismissed. ( 4 ) A reading of the impugned order shows that the finding has been arrived at that the petitioners failed to prove the letting purpose was residential. In this behalf two aspects have weighed with the Trial Court. 2. 1998 of the Additional Rent Controller the eviction petition has been dismissed. ( 4 ) A reading of the impugned order shows that the finding has been arrived at that the petitioners failed to prove the letting purpose was residential. In this behalf two aspects have weighed with the Trial Court. Firstly the tenanted premises were let out by the predecessor in interest of the petitioners and one of the petitioners Shri Anmol Kumar himself testified in the examination-in-chief that only previous landlord would know what did he mean by user for garage purposes. It was held that it was incumbent on the petitioners to have produced shri Som Dutt in the witness box. ( 5 ) SECONDLY RW-1 had proved a certified copy of the judgement dated 14. 8. 1996 passed by same presiding officer while dealing with the matters of the civil court. The said judgement Ex-RW1/p1 had become final and was between the same parties relating to tenanted premises. In paragraph 3 of the judgement according to defendant Nos. 1 and 2 in the said suit, who are the petitioners before this Court, it was their defence that Shri Trilok Chand was a tenant in respect of a garage and was running a printing press. ( 6 ) LEARNED counsel for the petitioners contends that the findings arrived at in the suit are only in respect of the extent of the tenanted premises and use it was being put to but that would not imply that the letting purposes was for printing press. Learned counsel submits that it is the case of the petitioners that the original letting purpose was residential but it was being misused for a printing press. Thus what was stated in the defence in the suit was the extent of tenanted accommodation and the user to which it had been put by the tenant. ( 7 ) LEARNED counsel for the petitioners submits that there was no need to produce the original landlord/owner since the case of the petitioner was that the letting purpose was residential. Learned counsel further submits that the garage is the part of the residential house and thus it cannot be said that the purpose of letting was commercial. ( 7 ) LEARNED counsel for the petitioners submits that there was no need to produce the original landlord/owner since the case of the petitioner was that the letting purpose was residential. Learned counsel further submits that the garage is the part of the residential house and thus it cannot be said that the purpose of letting was commercial. In this behalf, learned counsel points out that the respondents failed to discharge the burden of showing that the premises were being used as a whole of commercial purposes and despite this the Trial court has come to the conclusion that there was no requirement of the respondents to have led such an evidence. ( 8 ) ON consideration of the matter, I find force in the contention of the learned counsel for the petitioners. The allegation in the eviction petition was that the garage was part of a residential house and was required by the petitioners for parking a car. There was no written rend deed and thus the respondents were equally obligated to prove that the user of the garage for a printing press was the purpose for which it had been let out. This is all the more important because the premises itself had been defined as a garage attached to the residential house. It cannot be said that the respondents were under no obligation or that the production of Ex-RW1/p1 was sufficient. The said judgement was relevant insofar as the extent of the tenanted accommodation was concerned and the user to which it had been put by the respondents. It cannot be lost sight of that according to the petitioners it was being misused by putting it to such use. ( 9 ) I am also unable to accept the conclusion of the Trial Court that the mention in the sale deed Ex-PW1/4 and the two rent receipts Ex-PW1/2 and Ex-PW1/3 of the tenanted portion as a garage would not suffice. These aspects have to be seen along with testimony on behalf of the petitioners whereby the garage formed a part of the residential house. The Trial Court seems to have over emphasised on the statement made by PW-1 in respect of what is meant by user for garage purposes. These aspects have to be seen along with testimony on behalf of the petitioners whereby the garage formed a part of the residential house. The Trial Court seems to have over emphasised on the statement made by PW-1 in respect of what is meant by user for garage purposes. It is trite to say that a garage is used for parking of vehicles and thus if the garage was being used for some other purpose, the onus was on the respondents to establish such commercial user of printing press from the beginning as the purpose of letting. ( 10 ) IN view of the aforesaid, the impugned order is set aside and an eviction order is passed in favour of the petitioners and against the respondents in respect of the tenanted premises as defined in the eviction petition. The respondents are granted six months time to vacate the tenanted premises. Parties are left to bear their own costs.