D.P. Watihwa, J.
(1) The appellant Was defendant in the suit for possession and recovery of mesne profits filed by the respondents/plaintiffs who are two in number.
(2) The suit was filed on 14.9.1972. The plaintiffs alleged that Mr. Ram Sarup-husband of the defendant was tenant in respect of one room and a Kotha in house bearing No. 4820, Phatak Namak, Hauz Qazi,Delhi,at a monthly rent of Rs. 18.00 . Tenancy of Mr. Ram Sarup was stated to have been terminated with effect from 31.1.1969. Since, as alleged, he did not surrender the tenancy he was merely a statutory tenant. It is stated that some time in January, 1971, Mr. Ram Sarup surrendered possession of the Kotha and promised to surrender possession of the room as well. But he died on 9.11.. 1971 leaving behind the defendant as his widow. The plaintiffs, thereforee, filed the present suit for recovery of possession and mesne profits against the defendant. The defendant denied that she a was statutory tenant and stated that earlier the plaintiffs had filed an application under Section 19 of the Slum Areas (Improvement and Clearance) Act 1956 seeking permission to file a petition for eviction against her husband which was dismissed by the Competent Authority on 410.1967. An appeal against that was also dismissed by the Appellate Authority on 30.4.1998. It was stated that Mr. RamSarup husband of the defendant continued to be the tenant of the plaintiffs. It was also stated that defendant was wrongly deprived of one room by the plaintiffs which act on the part of the plaintiffs was tortious. The trial court framed seven issues and these were : - 1. Whether this court has no jurisdiction to try the suit. 2. Whether the suit has been properly valued for the purpose of court fee and jurisdiction 3. Whether the plaintiffs are the owners of the property bearing Municipal No. 4820, Hauz Qazi, Phatak Namak, Delhi Opp 4. Whether Sb. .Ram Sarup was a statutory tenant at the time of his death as alleged If not, to what effect Opp 5. Whether defendant is a tenant under the plaintiff ?OPD 6. To what amount, the plaintiff is entitled to recover from the defendant? Opp 7. Relief.
(3) During the pendency of the suit Delhi Rent Control Act, 1958 came to be amended by the Delhi Rent Control (Amendment) Act, 1976. In fact the Amendment Act repealed an ordinance which had been issued earlier. Definition of the tenant under Clause (1) of Section 2 of the Delhi Rent Control Act, 1958 was amended. Under this the tenancy became heritable and widow could become tenant provided she was financially dependant on her deceased husband on the date of his death if the deceased husband was a tenant in the premises. The defendant, thereforee, amended her written statement and took up the plea that she had been living in the premises with her husband as a member of his family up to the date of his death and had no independent income and thereafter became a tenant in respect of the premises under the provisions of the amending Act, In the replication it was denied that the defendant was financially dependant on her husband at the time of his death. No particulars were given as to how it could be said that the defendant was not financially dependant on her deceased husband at the time of his death.
(4) The trial court after recording of the evidence dismissed the suit of the plaintiffs qua relief for possession but decreed for Rs. 240.00 towards arrears of rent. The trial court held that the defendant was a tenant in view of the amendment of the definition of the tenant as introduced by the Amending Act of 1976 and as such the suit was barred under Section 50 of the Delhi Rent Control Act, there being a relationship of landlord and tenant between the parties.
(5) The plaintiffs appealed. The lower appellate court framed the following points for its decision : 1. Whether the suit was properly valued 2. Whether notice to quit was waived 3. Whether the suit is premature? 4. Whether the respondent was financially dependent upon the deceased Sh. Ram Sarup It upset the findings of the trial court and held that the defendant was not financially dependant on her husband at the time of his death and, thereforee, she could not become a tenant within the meaning ofClause(l) of Section 2 of the Delhi Rent Control Act, 1958, as amended. This second appeal has, thereforee, been filed by. the defendant.
(6) It was contended by the defendant/appellant that she was the tenant and that in any case the suit could not be held to be maintainable as her husband died on 9.11.1971 and the present suit was filed on 14.9.1972, when under the Amending Act she could hold on to the tenancy of her deceased husband for a period of one year from the date of his death if she was not financially dependant on him. This plea apart, to me it appears that the finding of the first appellate court that the defendant was not dependant upon her husband is so perverse as to shock the judicial conscience. The defendant clearly stated in her statement that it was her husband who was. earning by working as a labourer. The work that her husband was doing was to affix 'Patti' on wooden crates (Petties) in some shop. It was only after his death that she did some work of cleaning utensils and washing clothes etc. in certain houses to earn for her livelihood. She is also having a child whom, it is stated, she adopted. In the statement she did say that before his death her deceased husband suffered a paralytic attack and was a bed ridden and she had started doing the work of cleaning etc. even prior to his death. However, she corrected herself to state that she started this work only after his death. A lot has been said by the learned trial court on the statement and the court held that the defendant was working even prior to the death other husband, he being unable to earn anything and so it must be held that the defendant was not financially dependant on her husband at the time of his death. Against this statement of the defendant the plaintiffs examined some witnesses who said that the defendant was working in some houses, but then there are no particulars as to where she was working and what she was earning and since when. It was rightly observed by the trial court that defendant was a poor and illiterate lady and her statement that she was financially defendant on her husband at the time of his death was correct and had to be believed. The trial court further rightly observed that even if it was presumed that the defendant was working at the time of death of her deceased husband by cleaning utensils in the houses of her neighbourers, it could not be said that she was not financially dependant on her husband and that her act might be to supplement the family income and by no stretch of imagination it could be construed that the defendant ceased to be financially dependant on her husband. I endorse these findings. Due to some calamity befalling the husband if he is incapacitated and .the wife does some menial work to sustain the household, it is difficult to comprehend that she ceased to be financially dependant on her husband. The learned lower appellate court has mis-directed itself and wrongly allowed the appeal of the plaintiffs.
(7) I would, thereforee, allow the appeal and set aside the impugned judgment and would restore-that of the trial coruts. The appellant will be entitled to costs. Counsel's fee Rs. 500.00 .