Samey Pal Singh Vs. K.M. Sharma - Court Judgment

Excerpt:
- - the learned counsel for the appellant has placed strong reliance of the alleged rent note having been executed by one of the previous landlords to the effect that the premises were let for residence and for tailoring work. in thesecircumstances, clause (h) is clearly attracted and no fault can be found with the findings recorded by the rent controller as also by the rent controltribunal.goswamy, j.(1) this second appeal by the tenant is directed against the order dated 24.10.1986 passed by the rent control tribunal, delhi were by his first appeal against the order of eviction was dismissed.(2) the respondent filed an eviction petition under clauses (h) and (j)proviso (1) to section 14 of the delhi rent control act. in paragraph 18(a)of the petition, it was alleged as follows :- '18 (a) (1) the respondent built and acquired vacant possession ofa double storeyed house no. bh/381, purbi shalimar bagh, ringroad, new delhi. as such the respondent is liable to be evicted under clause (h) of section 14(1) of the delhi control act.'(3) it is not necessary to reproduce the pleadings regarding clause (j)inasmuch as the case based on the said clause was found against the landlord and has not been challenged either before the tribunal or before this court.the eviction order was passed under clause (h) of section 14(1) of the act. in the original written statement as also in the amended written statement initially in reply to para 18 of the petition, it was denied that the appellant-tenant had acquired vacant possession of a double storeyed house as alleged but in the later paragraph i.e. paragraph 19 it was admitted that the house mentioned by the landlord in his eviction petition was acquired bat it was pleaded that the same was not suitable for residence of the tenant. it was further pleaded that clause (h) was not applicable inasmuch as the premises in dispute were let to the tenant for residence-cum-commercial purpose and the tenant was carrying on his tailoring work also in the same premises.(4) on perusal of the entire evidence on record, the rent controller as also the rent control tribunal have recorded the concurrent findings to the effect that the premises were let for residential purpose only and no commercial activity was being carried on. it has also been found that the appellant had acquired alternate house which was much beggar than the premises in question. ordinarily, the appeal should have been dismissed on the short ground that it does not raise any question of law more so a substantial question of law but, i have heard the learned counsel for the parties and have also been taken through the pleadings and the evidence on record.(5) it is an admitted fact that the appellant has acquired an alternate house after 1980 i.e. after the present landlord and purchased the property inquestion. it is also an admitted fact that the appellant is a tailor by profession and he is carrying on his tailoring work in a shop which is closed to the premises in question. he has admitted that he has employed three or four tailors in that shop and works along with those tailors in the shop. however, he has tried to set up a case that he also carries on tailoring work in the premises inquestion. the premises in question consists of only one room and one kitchen.the room measures 13'x9'. there are five members of the appellant's family.the appellant has also a fridge, television and other furniture. it is impossible to believe that in spite of there being five members and so many pieces offurniture, the appellant was also carrying on his tailoring work in the said house.his case in his statement is that he was carrying on the tailoring work with the assistance of his wife in the premises in question. except the bald statements of few associates of the appellant, there is no independent witness who has come to depose to that effect. the learned counsel for the appellant has placed strong reliance of the alleged rent note having been executed by one of the previous landlords to the effect that the premises were let for residence and for tailoring work. the said rent-note is ex. aw5/ri. i have looked into the said document. the document is a typed paper and is not stamped.obviously the appellant seems to have managed with one of the previous landlords to procure the document. if such a document was in existence the appellant would have said so in its original written statement or at least in the amended written statement but surprisingly both the written statements are silent at to the existence of any rent-note. in fact in paragraph 14 of the petition it was alleged that the year of tenancy is not known but the appellant was a tenant on monthly basis. this allegation was admitted and it was not said that any rent-note was executed at the time when the appellant was inducted into the premises. in the circumstances, the rent controller as also the rent control tribunal were right in rejecting this document. there is no other document on record to indicate that any commercial activity was being carried on in the premises in question.(6) the respondents filed an application in this court to the effect that the appellant had already shifted from the premises in dispute and was keeping various people in occupation of the room. the learned counsel for the appellant states that the children of the appellant have shifted to the newly acquired house but the appellant continues to reside in the said premises. it is against impossible to believe that the children have shifted but the appellant and his wife have stayed back. there is no doubt that the appellant had acquired spacious premises and at least a part of his family is residing in these premises and are available to the appellant for his residence. in thesecircumstances, clause (h) is clearly attracted and no fault can be found with the findings recorded by the rent controller as also by the rent controltribunal.(7) for the reasons recorded above, i do not find any merit in this appeal which is hereby dismissed. the respondent will be entitled to his costs.counsel's fee rs. 300.00. the counsel for the appellant states that some time should be allowed to the appellant to hand over vacant possession of the premises in dispute. the counsel for the respondent states that he has no objection to the grant of one or two months provided the appellant pays the arrears of rent which are due from june, 1986. in case the arrears of rent are paid within one week from to-day, the appellant will have two month's time to hand over vacant possession of the premises in dispute, failing which the order will be executable after one week from to-day.