BAIJ NATH Vs. BHAGAT SINGH

JUDGEMENT

(1.) This second appeal under Section 39 of the unamended Delhi Rent Control Act, 1958 (hereinafter referred to as the Act) is filed by the appellant-tenant against the order of the Rent Control Tribunal (hereinafter referred to as the Tribunal) dated 12-10-1977. The brief facts are as follows.

(2.) . The second floor of premises bearing no. 4564, Ward no. XIII. Deputy Ganj, Delhi were let oat to the respondent at a monthly rent of Rs. 43.00 . The respondent filed a petition under Section 14(l)(h) of the Act for eviction for the appellant on the ground that he had acquired another resi dential house in School Block, Shakarpur Extension, Delhi. The appellant filed his written statement and denied that he bad acquired the premises at Shakarpur Extension. Delhi. He however stated that he had purchased premises in Abadi Malikpur ChhaWani, Civil Lines Delhi. The appellant however contended that the said premises were of commercial nature inas- much as it consisted of one shop and one room behind the said shop. The appellant, therefore, contended that he had not acquired vacant possession of a residence within the meaning of Section 14(l)(h) of the Act. The respondent, therefore, amended the petition incorporating the plea that the appellant had acquired residential accommodation in Abadi Malikpur Chhawani, Civil Lines, Delhi and, therefore, had disentitled himself to the protection of the Act. The amendment was allowed. The Additional Rent Controller (hereinafter referred to as the Controller) considered the question of acquisition of residence of the appellant in respect of both the above mentioned premises. The Controller came to the conclusion that the accom- modation at Malikpur Chhawani, Civil Lines, Delhi is of residential nature consisting of one shop and two rooms alongwith open court-yard. The Controller further held that the question of suitability of the said accom- modation was not required to be gone into once it was proved that the tenant bad acquired another residence and accordingly he allowed the petition and ordered eviction of the appellant under Section 14(l)(b) of the Act. An appeal was filed by the appellant tenant before the Tribunal. The Tribunal by its impugned order dismissed the appeal. Before the Tribunal it was contended by the tenant that the house located in Abadi Malikpur Chhawani, Civil Lines, Delhi was constructed on land belonging to Municipal Corporation of Delhi (hereinafter referred to as the Corporation) and the Corporation had demolished the said structure because the construction thereon was unauthorised. The appellant, therefore, submitted that since he ceases to be in possession of the said house, he still continues to enjoy the protection under the Act. The Tribunal did not allow the appellant to go beyond the pleadings and observed that the evidence has to be confined on the pleas taken in the pleadings. The Tribunal further observed that the plea that the appellant cannot be said to have acquired another residential house in his own right as be was duped by the previous owner Mohan Singh, could not be raised because no such plea was sought to be taken by amending the written statement. The Tribunal further reiterated that the premises at Malikpur Chhawani, Civil Lines, Delhi were residential premises consisting of one shop and two rooms and open court-yard etc. Being aggrieved by this judgment of the Tribunal, the appellant has filed the present second appeal. Alongwith the appeal, the appellant has also filed an application (CM 1939/ 77) under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the written statement. In the said application, it is prayed that the appellant bepermitted to amend para 18(a)(2) of the written statement urging the ground that the premises at Maiikpur Chhawni, Civil Lines, Delhi had been sold by Maman Singh to the appellant by practising fraud and have since been demolished by the Corporation and are not available for the appellant because he has no right, title or interest in the said property.

(3.) . It was contended by the learned counsel for the appellant that since the appellant did not have a legal right over the premises acquired by him at Malikpur Chhawani, Civil Lines, Delhi, eviction order cannot be passed under Section 14(l)(h) of the Act. Learned counsel submitted that the pre- mises acquired by the appellant were constructed on the land belonging to the Corporation and the original owner had duped the appellant and be had no right to sell the said property to the appellant. Learned counsel relied on the judgment of this Court in Smt. Asharfi Devi v. Chowdhri Mukh Ram Saini, 1971 RCJ 691, and Smt Revti Devi Kishan Lal, 1970 RCJ 417 and submitted that unless a tenant has a legal right in the property, he cannot be said to have acquired another residence. Learned counsel submitted that if the tenant loses the newly acquired premises became of his voluntary act then he may not be entitled to protection of the court but if he loses the premises because of some involuntary act, then that subsequent event must be taken into consideration. It was next contended that lbe accommodation at Malikpur Chhawni, Civil Lines, Delhi was not suitable for the need of the appellant in as much as the present tenanted premises consists of 7 rooms ; whereas the premises acquired by him was very small and could not accommodate his large family. Learned counsel, therefore, submitted that the courts below ought to have considered the question of suitability before passing the eviction order Learned counsel relied on the judgment of the Supreme Court in Ganpat Ram Sharma & Others v. Smt. Gayatri Devi, 1987 (2) RCJ 253 and submitted that the Supreme Court has observed that the question of suitability is a matter within the special knowledge of the tenant and he must prove and establish those facts and if be does so, no order of eviction can be passed against the tenant. It was next contended that the premises at Malikpur Chhawni, Civil Lines, Delhi are no longer available to the appellant in as much as the premises have been demolished by the Corporation. The subsequent event of demolition of the premises has to be taken into consideration before passing an eviction order under Section 14 (l)(b) of the Act. Learned counsel submitted that the Tribunal erred in not allowing the appellant to urge that the original owner had played fraud on the appellant and he was not legally entitled to purchase those premises because the same stood acquired on the ground that this plea was not taken in the written statement.