MANAWAR KHAN Vs. ABDUL REHAMAN

JUDGEMENT

(1.) The tenant-appellant was ordered to be evicted from the premises belonging to the respondents-landlors by the Controller on the ground that the landlords bonafide needed the premises for their residence under Section 14(1) (e) of the Delhi Rent Control Act, 1958 (hereinafter called the Act). The order of eviction was confirmed by The Tribunal. This second appeal to this Court lies under Section 39(2) of the Act only on a substantial question of law. The learned counsel for the appellant in his argument, therefore, confined only to the following grounds of attack on the order of the Tribunal, namely :-

(2.) The first application for eviction was withdrawn by the landlords because of a formal defect. For, the landlords came to know of a recent decision of the Supreme Court in which it was held that the termination of the contractual tenancy by notice was necessary before an application for eviction under the Act could be filed. The Controller gave permission for the withdrawal of the application with liberty to file a fresh application. This was in accordance with the principle embodied in Order 23 Rule 1(2) of the Civil Procedure Code. The same principle applies to an application for eviction under the Act. The second application was not, therefore, barred. The permission granted by the Competent Authority cannot be said to have been restricted only to the first application. The first application being formally defective was validly withdrawn before any decision on merits and, therefore, the permission granted by the Competent Authority was available to support the second application. I find so.

(3.) Though the appellant had not pleaded in the written statement that the landlords had other houses which could amount to a reasonably suitable residential accommodation within the meaning of section 14(1) (e) of the Act, from the trend of cross-examination of the landlord's witnesses, the landlords suspected that the tenant was making out such a defence. The landlords, therefore, applied to the Controller that a Commissioner for local investigation should be appointed to inspect not only the premises occupied by the tenant but also the other premises which were now in the evidence being alleged to belong to the landlords. The Commissioner sent a registered notice to the tenant informing him of his appointment for the purpose of inspecting not only the suit premises but also other houses alleged to be available to the landlords as reasonably suitable residential accommodation. The tenant refused to accept that notice. The Commissioner, therefore, inspected the premises and submitted a report. The Commissioner was also examined as a witness and his evidence is on record. Learned Counsel for the appellant complained that the Court should have directed the parties to appear before the Commissioner under Order 27 Rule(1) Civil Procedure Code. But the failure of the court to do so did not prejudice the tenant inasmuch as the notice of such appointment was given by the Commissioner himself but was refused by the tenant, at any rate, the Commissioner has been examined as a witness and the tenant had opportunity to cross-examine him. Under Rule 10 of Order 26 C.P.C. the court was entitled to examine the Commissioner as a witness and the Controller rightly did so. This evidence of a Commissioner cannot be disregarded inasmuch as it was not in any position worse than that of evidence of any other witness. Finally, there is ample other evidence on record to show that other alleged houses did not belong to the landlords at all and that they were used by the landlords for commercial purposes. The landlords could not change the user of those houses without the permission of their own landlords who owned those houses. There is, therefore, absolutely no evidence on record to show that any residential accommodation other than the suit premises was available to the landlords and that such accommodation was reasonably suitable. The tenant himself could not deny that the other houses were used for the commercial purposes inasmuch as the Commissioner has actually seen them. The tenant, therefore, admitted in his evidence that the other houses were used for commercial purposes but added that they were being so used after the institution of the proceedings for eviction. This suggestion of the tenant is not borne out by the evidence. Firstly, therefore, the Controller and the Tribunal have not committed any such error as would justify this court looking into the facts of this question. Secondly, even if the facts are looked into, the concurrent findings of the courts below are simply borne out by the evidence on record.