ivil Appeal No 1170 of 1987
1187 From the Judgment and Order dated 64
1987 of the Delhi High Court in SAO No 71 of 1987
Mr Soli J Sorabjee Dr Roxna Swamy and Bharat Sangal for the Appellant
AB Rohtagi and Miss Bina Gupta for the Respondents
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
What is the true meaning of the expression tenant has before or after the commencement of the Act built acquired vacant possession of or been allotted a residence  in terms of clause h of Section 141 of the Delhi Rent Control Act 1958 hereinafter called the Act  is the question raised in this appeal in the backdrop of interesting set of facts
This is an appeal by the tenant against the judgment and order dated 6th April 1987 of the Delhi High Court
To the facts first however we must go to appreciate the point
The appellant was at all material times since 1968 a tenant of the ground floor of premises No 214 Kalkaji Extention New Delhi
The premises had been let out in April 1968 to the appel lant at a monthly rent of Rs340 per month by one Shri RN Kurra deceased husband of respondent No 1 and father of respondents Nos 2 to 8
The premises consist of two bed rooms one drawing room one dining room one kitchen two bath rooms and court yard at the back and porch in the front and one store and also one verandah
It is the case of the appellant that originally the appellant had occupied these alongwith his wife his aged mother his son daughter brother and sister in law
However the brother and sister in law have since moved out and since 1979 the appellant s wife Smt
Santosh Raj was only staying with the family off and on for short periods usually when the appellant was on tour
In the meantime on or about 20th July 1977 the land lord filed eviction petition against the appellant on the ground of bona fide requirement
On or about 25th September 1978 the appellant s wife Smt
Santosh Raj was allotted Flat No 93 Sadiq Nagar ie a government quarter was given to her due to her employment as a teacher in the Government Girls Higher Secondary School No III Kalkaji New Delhi
She goes to live there leaving the rest of her family in the premises in dispute
It is the case Of the appellant aS made out in appeal before us that one Shri PR Arya and his family were asked to share with the appellant s wife on a joint allotment basis because it was not safe for a lady to live alone
The case of the appellant was that the relation ship between the appellant and his wife Smt
1188 Santosh Raj was not very good
There were differences of opinion
The appellant wanted the wife to give up her job and concentrate on the upbringing of the children
The lady was reluctant
She wanted to pursue her own avocation and career
It is highlighted before us that in those circum stances the wife of appellant had applied for government accommodation and had gone to live in the said premises
However by force of circumstances as the children have grown up and daughters became of marriageable age she was induced to give up her job and allotment and she has come back to the husband s premises being the premises in dis pute
On 17th of March 1986 respondent No 1 filed in the Court of the Rent Controller Delhi a petition on the ground that the wife of the appellant Smt
Santosh Raj had been allotted on 25th of September 1978 a residential quarter from the Directorate of Education Delhi by virtue of her employment in Government Girls Higher Secondary School No III Kalkaji New Delhi
The appellant therefore came within the mischief of clause h of section 141 of the Act
Written statement was duly filed in which it was stated that appellant had not acquired any house but that the landlord had tried to take advantage of the strained relationship between the tenant and his wife
It was stated that the tenant had strained relationship with his wife and on ac count of the same only she had acquired a separate accommo dation and started staying there and got her ration card prepared at the same address but since the appellant had grown up children and remained on touring job therefore in order to provide the required protection and care the wife of the appellant came to the house in question temporarily
It was stated that this fact is well within the knowledge of the landlord and other members of the family
It was denied that Smt
Santosh Raj
 the tenant had sublet the quarter No 93
On the other hand it was apparent that the depart ment had allotted the house to the wife of the appellant alongwith one other colleague jointly who had now surren dered the same
It was further stated that this joint allot ment had been made to the appellant s wife on compassionate grounds
The appellant was therefore not liable to be evicted from the premises in question it was asserted
The case was proceeded under section 37 of the Act
It was the contention of the appellant that he wanted to substantiate by production of evidence both oral and documentary that the flat allotted to his wife was on compassionate grounds in recognition of her special need to live apart from him
It could not be an alternative accommodation for the appellant and his family
It was further stated that the wife was allotted Flat No 93 Sadiq Nagar on 25th September 1978
A few months later the appellant s wife was all alone in the flat and felt the need for some company and she arranged one of her colleagues Mrs PR Arya alongwith her 1189 family should come to stay with her in this flat
Mrs Arya s husband Mr PR Arya was entitled to such accommoda tion in his own right as a teacher in Government Boys Higher Secondary School Hari Nagar Ashram New Delhi and accord ingly the appellant s wife arranged to have the flat jointly allotted to herself and Mr PR Arya
Mr PR Arya with his family entered the flat on or about 28th April 1979 and continued to share the flat with the appellant s wife for three years only
In 1982 they moved out of the flat and since then the appellant s wife has continued in the flat
In 1978 when she first occupied the flat the appellant s wife had a separate ration card giving the flat as her address and had drawn ration on that basis and not with her family in the suit premises
It was further stated that the appellant should have been permitted to adduce evidence both oral and documentary on all the above facts
But the learned Additional Rent Controller directed that no evidence need be necessary as the matter could be decided on admitted facts
In view of the provisions of law as the tenant had acquired vacant possession for residence became disentitled to retain the premises in question he therefore passed an order of eviction
Aggrieved by the aforesaid order the appellant went up in appeal being RCA No 957 of 1986
The learned Rent Control Tribunal negatived the appellant s plea that he should have been allowed to produce evidence in support of his averment of strained relations with his wife and that on account of these strained relations he could not in any way avail of the allotment of the flat to his wife
The Rent Control Tribunal dismissed the appeal of the appellant
Being aggrieved thereby the appellant approached the High Court in second appeal
The High Court by its impugned judgment dated 6th of April 1987 summarily rejected the appeal
Being further aggrieved the appellant has come up to this Court as mentioned hereinbefore
The short question is whether under clause h of Sec tion 141 of the Act allotment of a house to a wife who is a Government employee in all circumstances disentitled the tenant to retain the tenanted premises
We are unable to accept the view of the Delhi High Court
We have noted the provisions
The purpose of the Act is to control rents and eviction in other words to control unreasonable evictions and to ensure that in an atmosphere of acute shortage of accommodation there is proper enjoyment of available spaces by those who want and deserve
In other words to ensure that there is no unreasonable and unnecessary spaces in the hands of one tenant and 1190 other tenants and landlords  need of occupation of spaces remains unsatisfied clause h of Section 141 is an attempt in a way to ration out accommodation between tenants and landlords
Looked at from that point of view unless acquisition of a premises or a flat or allotment of a prem ises or part of a premises by the tenant in which he has domain which he can reasonably and alternatively use as a substitute for the place he is using in the tenancy it cannot lead to a forfeiture of his right to occupy his tenanted premises
The case would be otherwise however if a tenant comes into possession of a premises or is allotted a piece of residence or acquires vacant possession of the premises then such a tenant cannot prevent if other condi tions are fulfilled under section 141h of the Act being liable to forfeiture of his tenancy
But counsel for the respondent heavily relied on a decision of this Court in Prem Chand and another vs Sher Singh 1981 Delhi Rent Judgment 287
That was a case under the Delhi Rent Control Act 1958 and section 141h of the Act came up for con sideration
The respondent tenant was out of possession since October 9 1976
He was dispossessed during the pend ency of the appeal before the Rent Control Tribunal
The respondent s son was a business executive who was at one time allotted a flat by his employers
On December 12 1980 the respondent s wife purchased a flat at Saket from the Delhi Development Authority at a cost of about Rs 120000
The flat was available to the respondent though his explanation is that it had been let out by his wife to their son
The respondent thereafter has now no case to be put back in possession of the flat in dispute
Chandrachud CJ delivering the judgment of the Court observed that the Court had allowed the appellants to amend their applications for possession by pleading that the respondent had acquired possesion of a vacant residence within the meaning of sec tion 141h of the Delhi Rent Control Act 1958
Having considered the averments of the parties on the point at issue it was held in that case that the respondent had through his wife acquired vacant possession of a residence in Delhi and in that view of the matter was held not enti tled to retain old tenanted premises
Mr Avadh Bihari Rohtagi learned counsel strenuously contended before us that this proposition that acquisition of a flat by the wife was acquisition by the tenant and such acquisition in all circumstances would be within the mischief of section 141h of the Act and would disentitle the tenant to retain his flat in question
We are unable to accept this reading of the said Act
The said decision rested on the facts of that case
There in that case this Court found that the respondent s wife had purchased a flat in Saket and further found that the flat was available to the respondent
In those circumstances it was held that there was acquisi tion of vacant possession of a residence and as such section 141h of the Act would 1191 be attracted
It cannot however be laid down as a general proposition of law that acquisition of flat by the wife in all circumstances would amount to acquisition of fiat by the tenant
This position has been very properly highlighted in the decision of the Delhi High Court in Smt
Revti Devi vs Kishan Lal where Deshpandey J as the learned Chief Justice then was held that the mere occupation of a new residence by the tenant without any legal right to do so would not be covered by proviso h to section 141 of the Delhi Rent Control Act
If he goes to stay in the house of his wife legally speak ing he has no right as such to stay and can be turned out from the house at any time by its legal owner namely the wife
There was no law according to which the husband and the wife could be deemed to be one person
Therefore where proviso h required that the tenant himself should acquire vacant possession of another residence before he can become liable to eviction the effect of its language cannot be whittled down by arguing that proviso h would apply even if it is not the tenant himself but his wife or his other relation were to acquire such other residence
Therefore as a general proposition of law the acquisition of other residence must be by the tenant himself before proviso h to sub section
1 of section 14 of the Act would apply
The learned Judge dealt with this and observed that in construing the above provision it has to be borne in mind that the scheme of the Act had to be appreciated
Tenancy is a right vested in the tenant
The main purpose of the Act is the protection of tenants from eviction
The various provisos to sub section
1 of section 14 laid down the exception to this rule
The learned Judge observed that when proviso h made tenant liable to eviction its effect was to divest the tenant of his right of tenancy
The intention of the legislature in divesting the tenant of his right was based upon the fact that the tenant had legally acquired another residence as of right
There is no law according to which husband and wife could be deemed to be one person
Therefore the correct position must be that if a wife or a husband acquires a property and the other spouse if heshe is the tenant has a legal right by virtue of such acquisition and stay there then only can such acquisition or allotment of premises would disentitle or attract the provisions of cl
h of section 141 otherwise the whole purpose would be defeated
In other words if for all practical and real sense the tenant ac quired built or was allotted another residence then his need for the old tenanted residence goes and the tenant loses his right to retain his tenanted premises
That is the rationale behind the scheme
Dr Roxna Swamy drew our attention to the various as pects of the case where no proper opportunity was given to the tenant to show that in fact the husband would not and did not have any right at all to 1192 come to the premises allotted to the wife which was taken because of the strained relation of the husband and wife regarding the career of the wife
In such a house the hus band will not come he will certainly have no legal right or access for either staying or coming in the premises acquired by the wife
If it defeats the husband s tenancy then it would be mockery of justice
Mr Rohtagi tried to submit that there was no evidence before the trial court as well the High Court of the alleged strained relationship between the parties
What is necessary is that unless there is a positive evidence and here there is none of acquisition of property prima facie in the name of the tenant or allotment of flat to the tenant it cannot be said to have been ac quired by or allotted to some members of the tenant s family other than the wife
That cannot defeat the tenant s right under clause h of section 141
If there is such an acquisition by or on behalf of the tenant then the tenant and members of the tenant s family would have dominion over the acquired residence
Such acquisition would bring to the tenant the mischief of section 141h of the Act
In the case of this nature the appellate court had ample power in our opinion to have taken additional evidence
Our attention was drawn to a decision of the learned Single Judge in the case of Raj Kumar vs Vedprakash  1982 Jabalpur Law Jour nal 45 1
Our attention was drawn at the bar that a judgment can be given on admission that is to say in this case that an allotment had been made in favour of the wife or the tenant
Our attention was drawn to Mulla s Code of Civil Procedure Vol
II 14th Edition page 1148 which highlights that such oral admission must be definite and unambiguous and must be satisfactorily established
In our opinion from the fact that the wife of the tenant was allotted a tempo rary Government accommodation it cannot be said that there was admission by virtue of which the tenant could lose his tenancy that the wife has acquired a house which is avail able to the husband over which the husband has a domain which could be a substitute to the tenanted premises
In that view of the matter we are of the opinion that there was no admission at all
Our attention was drawn to certain observations of Bhagwati J as the learned Chief Justice then was in Phiroze Bamanji Desai vs Chandrakant M Patel and others   where dealing with certain facts wheth er premises given on a licence could be considered in con sidering the bona fide requirement of the landlord to the allotment or acquisition
In our opinion this principle is wholly irrelevant for the point in controversy before this Court
We are not concerned here whether there was ground for bona fide requirement of the landlord for which a suit had been filed and which is pending 1193 appeal
This fact of acquisition or allotment of flat in the name of wife which incidentally she has lost having given up her job can be in certain circumstances a factor in judging the bona fide needs of the landlord but the same indisputably cannot be any ground to evict the tenant on the ground that he has acquired vacant possession or been allot ted residence in terms of clause h of section 141
Mr Rohtagi drew our attention to certain observations of this Court in Gajanan Dattatraya vs Sherbanu Hosang Patel and others 1976 1 SCR 535 where this Court held that the tenant s liability to eviction arises when the fact of unlawful subletting is proved
The fact that subsequently the other tenant had left the premises does not cure the mischief done
Mr Rohtagi placing this decision tried to urge before us that the allotment itself of a residence or acquisition of a residence by the tenant or the wife of the tenant was sufficient to attract clause h of section 141 of the Act
The fact that subsequently the tenant had left the premises was irrelevant and did not affect the position
Itwas further submitted that the tenant had acquired a premises or allotted a residence which could be considered to be so in terms of clause h of section 141 but the flat in question allotted to the wife of the tenant could not by any stretch of imagination be considered to be a matrimonial home
In England the rights of the spouses be husband or wife to the matrimonial home are now governed by the provisions of Matrimonial Homes Act 1967
Halsbury s Laws of England Fourth Edition Vol
22 page 650 deals with the rights of occupation in matrimonial home and paragraph 1047 deals with and provides that where one spouse is enti tled to occupy a dwelling house by virtue of any estate or interest or contract or by virtue of any enactment giving him or her the right to remain in occupation and the other spouse is not so entitled then the spouse not so entitled has the certain rights known as rights of occupation that is to say if in occupation a right not to be evicted or excluded from the dwelling house or any part of it by the other spouse except with the leave of the court given by an order if not in occupation a right with the leave of the court so given to enter into and occupy the dwelling house
But such rights are not granted in India though it may be that with change of situation and complex problems arising it is high time to give the wife or the spouse a right of occupation in a truly matrimonial home in case of marriage breaking up or in case of strained relationship between the husband and the wife
We however cannot for the purpose of this case get much assistance from the prin ciple adumbrated in paragraph 1047 of Halsbury s Laws of England
In England cases before 1968 established that occupation of the matrimonial home by a tenant s wife after the tenant had left counts as occupation by the tenant so as to preserve the 1194 statutory tenancy for as long as the marriage itself sub sists
In those circumstances in England the landlord could not properly be granted an order for possession against the husband unless there were available grounds for possession against both husband and wife
The tenant cannot abandon his rights while his wife remains nor can the landlord evict the wife even if the tenant consents or purports to surren der his statutory tenancy
This is the result of the case law in England and much social awareness and the case laws have been given statutory expression in the Matrimonial Homes Act 1967
We have no such law
The premises in ques tion which the wife occupied was indisputably not the matri monial home
It is nobody s case
The husband would not therefore have any statutory or legal right against the Government to use and enjoy the allotted premises to the wife of the tenant because of her job
Looked at from any point of view the tenant cannot be made to lose his tenancy because of wife acquiring possession of a flat or allotment of a flat because of her official duties over which the husband has no right or domain or occupation
In the premises we are unable to sustain the judgment under appeal
To complete the story the wife of the tenant has resigned and has joined the husband at 214 Kalkaji Extension New Delhi
We hope there will be no more strained relationship in the family
Hereafter they will live happily provided the landlord permits so
We shall try to ensure that they so permit
The appeal is allowed and the judgment and order of the High Court and the Courts below are set aside
The eviction petition under section 141h of the Delhi Rent Control Act 1958 is dismissed
In the facts and circumstances of the case the parties will bear and pay their own costs
This however will not in any manner prejudice the fights if any of the parties in the other eviction petition on the ground of bona fide need of the landlord which we are told is still pending
NPV Appeal allowed


Summary:
The premises in question had been let out in April 1968 to the appellant at a monthly rent of Rs340 by the husband of respondent No 1 and the father of respondents Nos 2 to 8
In July 1977 the landlord filed an eviction petition against the appellant on the ground of bona fide require ment
In September 1978 appellant s wife was allotted a Government quarter due to her employment as a teacher In the Government school
In March 1986 the first respondent filed a petition before the Rent Controller that the wife of the appellant having been allotted a residential quarter came within the mischief of clause h of Section 141 of the Act and was therefore liable for eviction
The appellant contended that he had not acquired any house and that the quarter in question was allotted to his wife on joint allotment basis on compassionate grounds and that the same had been surrendered and therefore the appellant was not liable to be evicted
It was further contended that the allotted accommodation could not be treated as alternative accommodation for the appellant and his family
The Additional Rent Controller held that having regard to the provisions of law as the tenant had acquired vacant possession for residence he became disentitled to retain the premises in question and therefore passed an order of eviction
The Rent Control Tribunal dismissed the appeal of the appellant
The High Court rejected the second appeal
In the appeal to this Court the question for considera tion was whether under clause h of Section 141 of the Act allotment of a house to the wife who was a Government employee in all circumstances disentitled the tenant to retain the tenanted premises
1185 Allowing the appeal this Court HELD 1
The premises in question which the wife occu pied was indisputably not the matrimonial home
The husband would not therefore have any statutory or legal right against the Government to use and enjoy the allotted prem ises to the wife of the tenant because of her job
The tenant cannot be made to lose his tenancy because of the wife acquiring possession of a flat or allotment of a flat because of her official duties over which the husband has no right or domain or occupation
1194C D 21 The purpose of the Delhi Rent Control Act is to control rents and evictions in other words to control unreasonable evictions and to ensure that in an atmosphere of acute shortage of accommodation there is proper enjoy ment of available spaces by those who want and deserve
1189G H 22 Unless acquisition of a premises or allotment of a premises or a part of a premises by the tenant in which he has domain which he can reasonably and alternatively use as substitute for the place he is using in the tenancy it cannot lead to forfeiture of his right to occupy his tenant ed premises
The case would be otherwise however if a tenant comes into possession of a premises or is allotted a piece of residence or acquires vacant possession of the premises then such a tenant cannot prevent if other condi tions are fulfilled under Section 141h of the Act being liable to forfeiture of his tenancy
1190B C 23 Tenancy is a right vested in the tenant
The main purpose of the Act is the protection of tenants from evic tion
The various provisos to sub section 1 of section 14 laid down the exception to this rule
The intention of the Legislature in divesting the tenant of his right was based upon the fact that the tenant had legally acquired another residence as of right
There is no law according to which husband and wife could be deemed to be one person
1191E F 24 The acquisition of other residence must be by the tenant himself before proviso h of sub section
1 of section 14 of the Act would apply
1191D 25 If a wife or husband acquires a property and the other spouse if heshe is the tenant has a legal right by virtue of such acquisition and stay there then only can such acquisition or allotment of premises would disentitle or attract the provisions of cl
h of section 141 of the Act otherwise the whole purpose would be defeated
That is the rationale behind the scheme
1191F G 1186 26 From the fact that the wife of the tenant was allot ted a temporary Government accommodation it cannot be said that there was admission by virtue of which the tenant could lose his tenancy that the wife has acquired a house which is available to the husband over which the husband has a domain which could be a substitute to the tenanted premises
This fact of acquisition or allotment of fiat in the name of wife which incidentally she has lost having given up the job can be in certain circumstances a factor in judging the bona fide needs of the landlord but the same indisputably cannot be any ground to evict the tenant on the ground that he has acquired vacant possession or allotted residence in terms of cl
h of section 141
1192E F 1193A B 3
The rights if any of the parties in the eviction petition on the ground of bona fide need of the landlord will not in any manner be prejudicially affected
1194F In England the rights of the spouses to the matrimonial home are now governed by the provisions of the Matrimonial Homes Act 1967
Where one spouse is entitled to occupy a dwelling house by virtue of any estate or interest or con tract or by virtue of any enactment giving him or her the right to remain in occupation and the other spouse is not so entitled then the spouse not so entitled has the certain rights known as rights of occupation that is to say if in occupation a right not to be evicted or excluded from the dwelling house or any part of it by the other spouse except with the leave of the court given by an order if not in occupation a right with the leave of the court so given to enter into and occupy the dwelling house
1193D G Such rights are not granted in India
But with the change of situation and complex problems arising it is high time to give the wife or the spouse a right of occupation in a truly matrimonial home in case of marriage breaking up or in case of strained relationship between the husband and the wife 1193G Prem Chand and another vs Sher Singh 1981 Delhi Rent Judgment 287 Smt
Revti Devi vs Kishan Lal  Phiroze Bamanji Desai vs Chandrakant M Patel and others   Galanan Dattatraya vs Sherbanu Hosang Patel and others 1976 1 SCR 535 and Halsbury s Laws of England Fourth Edition Vol
22 page 650 referred to