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2006 DIGILAW 2360 (DEL)

ASHOK KUMAR v. RAMAN ARORA

2006-12-19

SANJAY KISHAN KAUL

body2006
SANJAY KISHAN KAUL, J. ( 1 ) THE petitioner filed an eviction petition against the respondent / tenant under Section 14 (1) (d) and (h) of the Delhi Rent Control Act, 1958 ( hereinafter to be referred to as, 'the said Act' ) in respect of two rooms' set on the first floor of property No. 3480, Nicholson Road, Kashmere Gate, Delhi - 110 006 stated to be let out for residential purposes. ( 2 ) THE petitioner had purchased the property from the previous owner under whom the respondent was the tenant. It is the case of the petitioner that neither the respondent nor any members of his family have been residing at the premises for more than six months prior to filing of the petition and the premises were lying locked. It is being alleged that the respondent permanently shifted to B-85, derawal Nagar, Delhi and that the respondent had also acquired vacant possession or had been allotted the said property. The respondent contested the case and claimed that the property at Derawal Nagar was owned by Shri Khushal Chand. ( 3 ) THE parties led their evidence and in terms of the order dated 06. 04. 1994 of the Additional Rent Controller ( hereinafter to be referred to as, 'arc' ), an eviction order was passed under Section 14 (1) (d) of the said Act. ( 4 ) THE evidence was appreciated by the ARC including the electricity bills and it was found that the recorded consumption for eight months was only 20 units. Similarly, only two kilolitres of water was stated to have been used for a period of two months and the case of the petitioner was that this meagre consumption was on account of leaving the electricity points on and water taps open even in the absence of the respondent only to create evidence. The summons in question were also served to the respondent at B-85, Derawal Nagar, Delhi. The ARC rejected the plea of the respondent that since he was unmarried, he had to go outside. The trial court found substance in the plea of the petitioner that since the parents of the respondent were staying at B-85, Derawal Nagar, delhi, the respondent was residing with his parents while keeping the tenanted premises locked. The ARC rejected the plea of the respondent that since he was unmarried, he had to go outside. The trial court found substance in the plea of the petitioner that since the parents of the respondent were staying at B-85, Derawal Nagar, delhi, the respondent was residing with his parents while keeping the tenanted premises locked. ( 5 ) THE respondent aggrieved by this order filed an appeal before the Rent Control tribunal ( hereinafter to be referred to as, 'the Tribunal' ) and the appeal has been allowed in terms of the impugned order dated 04. 08. 2003. It may be noted that the Tribunal proceeded to re-appraise and re-evaluate the evidence in respect of this aspect and thereafter proceeded to come to a different conclusion. ( 6 ) LEARNED counsel for the petitioner has referred to the judgment of learned single Judge of this Court in Sushil Chander Gupta v. Radha Krishan Bathijia, 1981 (1) All India Rent Control Journal 711, which dealt with the scope of section 14 (1) (d) of the said Act and Section 39 of the said Act. It may be noticed that earlier the first appeal from an order of an ARC lay to the tribunal under Section 38 of the said Act both on questions of law and facts and the second appeal lay to this Court under Section 39 of the said Act only on a question of law. Subsequently in 1988, the legislature in its wisdom amended the provisions whereby Section 39 was deleted from the statute and the first appeal to the Tribunal under Section 38 of the said Act lay only on a question of law. Thus, the scope of interference by the Tribunal under Section 38 now is analogous to what this Court was required to do under Section 39 of the said Act and that is why this judgment would apply to the facts of the present case. Learned Single Judge came to the conclusion that a question of residence or non-residence is not a question of presumption, but is a question of fact. It is not a question of inference, but a positive proof. Thus, the landlord cannot prove the negative except by his statement and the tenant is required to prove the positive. Learned Single Judge came to the conclusion that a question of residence or non-residence is not a question of presumption, but is a question of fact. It is not a question of inference, but a positive proof. Thus, the landlord cannot prove the negative except by his statement and the tenant is required to prove the positive. The burden at once shifts to him to show that he was residing in the tenanted premises during the period in question. ( 7 ) LEARNED counsel also referred to the judgment of learned Single Judge of this court in Sudarshan Khanna v. Smt. Krishna Kanta Bhasin, 2002 (1) RCR 36 to advance the proposition that where in the rent matters, the second appeal has been taken away from the High Court by the Parliament, the invocation of Article 227 of the Constitution of India must be confined to very rare cases where it is apparent from the face of the record that there was no ground for lower court to return the particular finding and conclusion that is under challenge. It was simultaneously observed that under Section 38 of the said Act, the appeal against the order of the Rent Controller lies only on a question of law and the tribunal is precluded from entering upon the factual arena. ( 8 ) IF the aforesaid legal principles are applied, I am of the considered view that the Tribunal could not have entered into the arena of re-appreciating the said evidence to come to a different conclusion. It is not a case of absence of evidence, but of re-appraisal of evidence. Not only that, the direction in which the Tribunal proceeded suffers from a patent error in view of the observations in Sushil Chander Gupta's case (supra) on the question of eviction proceedings under Section 14 (1) (d) of the said Act. The impugned order of the tribunal, thus, cannot be sustained. ( 9 ) IT may be noticed that learned counsel for the respondent really could not dispute the aforesaid proposition and, thus, submitted that while the impugned order suffers from such patent error and erroneous exercise of jurisdiction, this Court may grant time to the respondent to vacate the tenanted premises on or before 31. 12. 2007. ( 9 ) IT may be noticed that learned counsel for the respondent really could not dispute the aforesaid proposition and, thus, submitted that while the impugned order suffers from such patent error and erroneous exercise of jurisdiction, this Court may grant time to the respondent to vacate the tenanted premises on or before 31. 12. 2007. Learned counsel on instructions from the respondent states that he does not want to take up the matter further as he is conceding that the impugned order be set aside and, thus, prays only for time to vacate the tenanted premises. Learned counsel for the petitioner has no objection to the same. ( 10 ) THE impugned order of the Tribunal dated 04. 08. 2003 is set aside and the order of the ARC dated 06. 04. 1994 is affirmed. ( 11 ) THE petition is allowed leaving the parties to bear their own costs.