r IN THE HIGH COURT OF DELHI + CM (M) No.^ of 2000 & CM No.777 of 2002 % Date of decision; 12.07.2006 SUKHBIR SINGH & ANR. ...PETITIONERS Through: Ms. Suman Kapoor, Advocate. VERSUS DAYA SHANKAR & ORS. ...RESPONDENTS Through: Mr. Pawan Kumar, Advocate for Respondent No.l. CORAM; HON'BLE MR. JUSTICE SANJAY KISHAN KAUL 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? \ ^ f • i SANJAY KISHAN KAUL, J. (Oral) 1. The father of the respondents late Shri Bharat Singh was the owner of property bearing No.2473, Gali No.9, Beadon Pura, Karol Bagh, New Delhi, which devolved on the respondent No.l. The premises were let out to late Shri Sant Singh consisting of one room, latrine and bath on the ground floor. On the demise of Shri Sant Singh, the petitioners and respondents 2 to 7 being his legal heirs claimed to have become the tenants. 2. The dispute between the landlord and tenant has a chequered history. Late CM(M) No.68 of2000 & CMNo.777 of2002 Page No.1 of 8 Digitally Signed By:VIJAY KUMAR CHAUHAN Signing Date:22.01.2024 16:30:10 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified r-" \ ' -256 Shri Bharat Singh is stated to have terminated the tenancy in the year 1972 and since the premises fell in the slum area, petition was filed before the Competent Authority (Slum) for permission to file eviction petition. The tenant Shri Sant Singh passed away during the pendency of this petition and late Shri BharatSinghfiled a civil suitfor possessionagainsthis legalheirs in the year 1973. Shri BharatSinghpassed away in the year 1975. In 1976, the questionof inheritanceof tenancyin a residentialpremiseswas decidedbythe Apex Court and in view of the changedlegal position,the suitfor possession was withdrawn. 1' 3. The respondent No.l having become owner of the tenanted premises in pursuanceto the Will of lateShri BharatSinghfiled a fresh petitionbeforethe CompetentAuthority (Slum) and the permissionwas granted in December 1978. The respondentNo.l filedtwo evictionpetitions. The firstpetitionwas under Section 14(l)(e) of the Delhi Rent Control Act, 1958 (hereinafter referredto as the.said Act) for bonafiderequirementof the premiseswhile the other petitionwas filed on various grounds under Section 14(l)(a),(b), (c ), (d), (h) & (j) ofthe said Act. The evictionpetitionunderSection 14(1)(e) of the said Actwas dismissedby the AdditionalRent Controlleron 22.1.1987on accountofthe conclusionreachedthat the premiseswere not requiredby the respondentsbonafide consideringthe size of his family and the purpose of lettingwas also not residential. The evictionpetitionfiledon the otherground CM(M) No.68of2000&CM No.777of2002 p^gg^^.2of8 was, however, allowed on some grounds by the Additional Rent Controller on 20.1.1997. The petitioners and respondent No.l aggrieved by the same on different accounts filed appeals before the Rent Control Tribunal and the appeals were disposed of by the impugned order dated 18.11.1999. It is this order, which is sought to be challengedin the present proceedings under Article 227 of the Constitution of India. 4. It is trite to say that the jurisdiction of this Court under Article 227 of the ConstitutionofIndiaisnot appellateinnatureand unlessthereis a patenterror 1 > : < or improper exercise of jurisdiction,this Court is not to reappraise the evidencein the presentproceedings. It is also relevantto note that originally in the said Act a provisionhad been made for the secondappealto this Court but the legislaturein its wisdom subsequentlydeletedthe same. The intentof the legislatureis thus clear that there should be no second appeal in such matters. 5. There were cross-appealsfiled before the Rent Control Tribunal on accountof the conclusion arrived at by the AdditionalRent Controller in terms of its judgementdated 20.1.1997. The reasonfor the same was that all the grounds ofthe respondentswerenot accepted. ThepetitionunderSection14(l)(a),(b), (c ), (d) & (h) of the said Act did not succeedbut the petitionwas allowed under Section 14(1)(j) of the said Act and it was held that the petitioners/tenantshad caused substantialdamage to the tenantedpremises. CM(M)No.68of2000&CMNo.777of2002 No3of8 • / " .A- lT The petitioners were also held liable for the sum of Rs.10,000/- as, compensation,which they were requiredto pay failing which evictionorder would follow. 6. One of the major issues considered by the Appellate Court relates to the devolution of the tenancy and as to whether such tenancy was inheritedby all the legal heirs of Shri Sant Singh or only by his wife Shrimati Kailash Kaur. The notice of termination of tenancy on Shri Sant Singh in the year 1972 was not in dispute and also found adjudication in the judgement dated 22.1.1987 passed earlier by the Additional Rent Controller. The Appellate Tribunal, / thus, came to the conclusion that the tenancy devolves only on his widow Shrimati Kailash Kaur. This is a pure finding of fact and the reasoning given by the Appellate Court cannot be faulted in this behalf. 7. The second question considered is as to whether there were arrears of rent outstanding against the tenant. It was held that since the tenancy devolves I ** only on ShrimatiKailashKaur on the serviceof notice upon her in 1976 for arrears, the tenant was obliged to clear the same. The sequitor to this was the issue whethertherehad been complianceof the paymentof rent in pursuance to the notice. Findings arrived by the Courts below is that the notice dated ,7.7.1972was not compliedwith at all whereasthe depositsmade in Courtin pursuanceto the notice issued in the year 1976 were invalidand illegal.The AppellateTribunal,thus, rightlycame to the conclusionthatthe petitionunder CM(M) No.68of2000&CM No.777of2002 paggNo.4of8 .Jr" i-. Section 14(l)(a) of the said Act for non-paymentof rent was liable to be allowed. 8. The principalcontentionis in relationto the purposeof lettingand this is also the aspectemphasisedby the learnedcounselfor thepetitioners. The tenancy was createdin pursuanceto a writtenRent Deed dated 6.5.1952(exhibitP-3), whichclearlyspelloutthepurposeof lettingas residential.It is inview of this that the AppellateTribunal came to the conclusionthat once such a written documenthas been provedand is availableon record the provisionsof Section 92 of the Evidence Act would come into play and the oral testimony would not be admissible. In my consideredview, this is a right approach adoptedby the Tribunal. 9. Shrimati Kailash Kaur passed away long time back and after her demise it is her sons, who have been utilising the premises and using it for busmess purpose contrary to the purpose of letting. 10.TheAppellate Tribunal allowed the appeal under Section 14(l)(a)(b) & (c ) of the said Act and the respondents were directed to pay the arrears of rent within one month from the date of the order. However, in view of the respondents succeeding in respect of the ground under Section 14(l)(c) of the said Act one month's time was granted to stop mis-user. 11.The respondents also filed CM No.777/2002 to bring on record subsequent additional facts including an application filed by the petitioners and CM(M)No.68of2000&CMNo.777of2002 PageNo.SofS I ^0 respondents2 to 7 dated 19.1.1976in the earliersuit filed in the year 1973 admittingthe purposeof lettingas residentialone. The suit was disposedof on the groundofcompromisethat since the lettingpurposeswas acceptedto be residentialthe suit for possessionhas become infructuous. Even at the stage of grantof permissionby the CompetentAuthority(Slum),the purpose was found to be residential. The order was sought to be impugned in the writ petitionbut to no avail. It has been, thus, stated that if at all the issue of purposeoflettingis to be treatedas resjudicatait becameso atthat stageand subsequentlywhatthe AdditionalRent Controllerheldon 22.1.1987cannotbe reliedup. This was withoutprejudiceto thecontentionof thelearnedcounsel for the respondent No.l that the finding arrived at by the AdditionalRent Controller on 22.1.1987 was based on the evidence produced on record only in that case. The purpose of grant of perpetual lease dated 17.8.1963 is also stated to show that the user was residential which lease has been placed on record. 12.A perusal of the order dated 22.1.1987 shows that the Rent Deed was produced even in the said proceedings but oral testimony was relied upon to come to the conclusion that even though the Rent Agreement states the purpose of letting as residential, the counterfoils of the rent receipts show the purpose as commercial, the oral testimony shows that the premises was being used for commercial purposes. It was, thus, observed that though the oral CM(M) No.68of2000 & CM No.777of2002 PageNo.6 of8 J; testimonycontraryto the writtendocumentmay not be acceptablethe parties can change the purposeof letting. However,insofaras the noticesfor mis- user are concerned, one of the notices was not tendered in evidence or proved. 13.In my consideredview, there is weight in the submission of the learned counsel for the respondentNo.l that the issue of purpose of letting cannotbe said to be fore-closed by the judgement dated 22.1.1987 of the Additional Rent Controller. There are undisputed findings by the Competent Authority (Slum) y , as affirmed by the High Court in respect of the purpose of letting being residential. This was prior to the order dated 22.1.1987. Further, there were separate petitions proceedings under different grounds of eviction. The fact that the respondentsfailed to succeedon grounds of bonafide requirementand gave the sameup cannotimplythatthe findingarrivedthereinin respectof the purpose of letting would be final and binding or that it was not open to the Additional Rent Controller or the Tribunal in the separate eviction petition to come to a different conclusion based on the evidence before it. In my considered view, the Tribunal has rightly come to the conclusion that when there is a written contract where the purpose of letting is set out as residential coupled with the factum of the rent receipts the purpose of letting is residential. Oral testimony to show that the tenant was using the premises for commercial purposes cannot imply the consent of the landlord. The landlord was protesting and merely because a tenant uses it for a contrary purpose CM(M)No.68of2000 & CMNo.777of2002 Page No.JofS I i 3) testimonycontraryto the writtendocumentmay not be acceptablethe parties can change the purposeof letting. However,insofaras the noticesfor mis- user are concerned, one of the noticeswas not tendered in evidenceor proved. 13.In my consideredview, there is weight in the submissionof the learned counselfor the respondentNo.l thatthe issue of purposeof lettingcannotbe said to be fore-closedby thejudgementdated22.1.1987of the AdditionalRent Controller. There are undisputed findings by the Competent Authority (Slum) ) as affirmed by the High Court in respect of the purpose of letting being residential. This was prior to the order dated 22.1.1987. Further, there were separate petitions proceedings under different grounds of eviction. The fact that the respondents failed to succeed on grounds of bonafide requirement and gave the same up cannot imply that the finding arrived therein in respect of the purpose of letting would be final and binding or that it was not open to the Additional Rent Controller or the Tribunal in the separate eviction petition to come to a different conclusion based on the evidence before it. In my considered view, the Tribunal has rightly come to the conclusion that when thereis a writtencontractwherethe purposeof lettingis set out as residential coupled with the factum of the rent receipts the purpose of letting is residential. Oral testimonyto show that the tenantwas usingthe premisesfor commercialpurposes cannot imply the consentof the landlord. The landlord was protestingand merely because a tenant uses it for a contrary purpose CM(M)No.68of2000&CM No.777of2002 p^gg^oJofS I i Y J cannotbe a ground to presumesuch consent. 14.Thetenantenjoyedthe benefitduring his lifetimeand his wife also enjoyed the benefit after the demise of the original tenant. The remaining legal representativesof the deceasedtenant,who are financiallyindependentin their own right cannotcontinueto enjoy the tenancyon the ground that they have inheritedthe samewhenthepurposeof lettingis residential. 15.Inview of the aforesaid,I do notfind anypatenterror or erroneousexerciseof jurisdictionby the Appellate Tribunal calling for any interferenceof this Court. 16.1n the end it may be observed that though the arguments were concluded yesterday and this Court was in the course of dictating the judgement dismissing the petition learned counsel for the petitioner sought time to obtain instructions whether the petitioner was willing to vacate the premises subject to grant of some time. In view thereof, formal order of dismissal of the petition was deferred till today. Learned counsel for the petitioner today states that the petitioners are not willing to vacate the property and would opt to agitate the issue further by recourseto legal remedy as may be availableto the petitioners. IV.Dismissed. July 12, 2006 b'nesh CM (M) No.68of2000&CM No.777of2002 o SANJAY KISHAN KAUL, J. PageNo.8of8