JANE ALAM Vs. AHMED MIAN

JUDGEMENT

(1.) A landlord will be entitled to eviction order under Section 14(1) (e) of the Delhi Rent Control Act if he is able to prove that (a) the premises in question were let out for residential purpose, (b) that he is the landlord/owner of the premises, (e) that the premises are required bonafide for himself for occupation as residence for himself and for any of his family members dependant upon him and for whose benefit the premises are held and (d) that the landlord has no other reasonably suitable residential accommodation

(2.) In this case, the main thrust of the argument of the Counsel for the tenant, who is petitioner-herein, is that the premises were let out for residential-cum-commercial purpose and no eviction order under Section 14(1) (e) of the Delhi Rent Control Act could have been passed. He drew my attention towards the oral as well as documentary evidence on record to prove his stand that the premises were let out for residential-cum-commercial purposes. Ex. RW3/1 is a copy of the affidavit allegedly sworn by Ahmed Mian, one of the landloads, in which he has given no objection for the grant of licence in favour of the petitioner tenant for using the premises for commercial purpose. Ishwar Chand Sharma, clerk of Factory Licence Department of the MCD had proved a copy of the original affidavit from his record. On the basis of the affidavit given by one of the landlords, a licence was issued by the Factory Licensing Department of MCD. Acopy of the licence is Ex.RW 1/1 which is dated 26.7.77. According to the Counsel for the petitioner, the premises are being used for residentlal-cum commercial purpose since the inception of tenancy i.e. from 22.3.75, though the licence was granted by the MCD from 1977 and there was no objection on behalf of the landlords though they were residing in the same very property till 20.8.83 when they moved an application staling that the premises were unauthorhedly used for commercial purpose. According to the learned Counsel till 1983 no such objection was ever raised though the factory was being run in those premises from the very inception of the tenancy. Another fact which has been brought to my notice is that the landlords bad brought a suit for permanent injunction against the petitioner that he should not carry on business in the premises in question. Temporary Injunction was refused vide order dated 23.2.87 by Ms. Sunita Gupta, SJIC. The landlord filed an appeal MCA 33/83 which was dismissed by Shri P.S. Sharma, Addl. District Judge on 5.3.87 observing that the assertion of the appellant that the premises were let out for residential purposes is not correct. The premises were let out for residential-cum-commercial purposes and "no objection certificate" was given by the landlord Shri Ahmed Mian for the grant of factory licence for these premises. This order of the Addl. District Judge has become final meaning there by that the suit premises were let out not only for residence but also for running the business therein. The suit for injunction filed by the landlord was also dismissed and this finding of the Court below operates as resjudicata on this point. According to the learned Counsel, this fact has not been taken note of by the Addl Rent Controller, though the petitioner has taken a specific plea in this regard. Ex. RW1/2 is a copy of the judgment of Shri P.S. Sharma, Addl. District Judge, which has been duly proved in the statement of R.W.1 Jane Alam, petitioner herein. According to the learned Counsel, the omission to take note of this document by the Addl. Rent Controller is sufficient to remand the case back to the Addl. Rent Controller for deciding the matter afresh in accordance with law and on the basis of evidence on record. Counsel for the respondents has not been able to counter the argument of the Counsel for petitioner on this point. The impugned order passed by the Addl. Rent Controller is silent about this most important fact which has come on the record. He should have met all the points raised and discussed the entire evidence on record The omission on the part of the Addl. Rent Controller in not taking note of the judgment in the civil litigation between the parties is sufficient to set aside the eviction order dated 17.2.87 and for remanding the case back for fresh decision by discussing the evidence on record.

(3.) Under these circumstances, I accept the revision petition, set aside the impugned judgment dated 172 87 and remand the case back to the Court of the Addl. Rent Controller concerned with the direction to decide the matter afresh after hearing the Counsel for the parties and appreciating the evidence available on record. Counsel for the parties are directed to appear before the Addl. Rent Controller concerned on 9.1.1992. Record of the lower Court be sent back immediately.