B K DAWESAR Vs. K K SAPRA

JUDGEMENT

(1.) This order shall govern the disposal of two connected matters namely SAO No 27/2000 and CRP NO 242/2001. Both these matter relate to property no. B-4/31, Safdarjung Enclave, New Delhi and arise out of the two different proceedings relating to the same property between the same parties.

(2.) Admitted facts between the parties may be noticed first. Property No. B-4/31, Safdarjung Enclave, New Delhi is built up on a plot of land which was granted on perpetual lease basis by the Delhi Development Authority to the revision-petitioner herein for the purpose of raising construction thereon only for residential purpose. It is also not in dispute that the said building is built on stilts consisting of ground, first, and barsati floors. The portion in question which was let out by the petitioner namely Shri K.K.Sapra to the tenant namely Dr.B.K. Dawesar has been built by covering the pillars by half brick walls, thus making one big hall which has been divided into four rooms/cabins/cubicles by wooden partitions of seven feet height and one small latrine/bathroom combined. Admittedly there is no regular kitchen in the tenanted premises. The tenancy commenced on 21st October, 1974. According to landlord, the tenancy was for residential purpose only but according to the tenant, it was let out for residential-cum-commercial purpose inasmuch, he and his wife who are both doctors, were to reside in the said premises as also to run their medical profession and he has been using the same as such from the inception of tenancy. The landlord served a notice dated 19th January, 1976 (Ex-AW3/5) complaining therein that the tenant is misusing the premises for running clinic which misuser was against the terms of the tenancy as the premises was let out for residence only as also in violation of the terms of perpetual lease. Tenant was called upon to stop the user of the premises as clinic and hand over the vacant possession of the premises. It may be pointed out here that no lease deed/rent note was executed between the parties at the time of letting but a receipt (Ex-AW3/3) was issued wherein the premises was prescribed as residential. Since the tenant did not comply with the notice dated 19th January, 1976 nor sent any reply thereto, the landlord filed an eviction petition in the year 1980 seeking eviction of the tenant under clause (c ),(d) and (k) of proviso to sub-section (1) of Section 14 of Delhi Rent Control Act, 1958 (hereinafter referred to as 'Act'). It was alleged in the petition that premises which were let out for residential purpose, are being misused by the tenant for running his clinic therefrom which misuser is against the terms of the tenancy as well as in violation of the terms of perpetual lease under which the plot of land underneath is held by the landlord under DDA and the tenant has not stopped misuser despite service of notice dated 19th January, 1976. It was alleged that neither tenant nor any member of his family has been residing in the demised premises for a period of more than six months before the filing of petition. The eviction petition was contested by the tenant. He pleaded that premises in question were taken on rent for residential as well as professional purposes and as such there is no violation of the terms of the tenancy between the parties. Besides, professionals like doctors are allowed to use a part of residence for professional purposes and as such there is no contravention of terms of perpetual lease deed. The allegation regarding non-residence for a period of six months preceding the date of filing of petition was also denied. On these pleadings, parties went on trial. In proof of his case, landlord examined Mr. Kailash Chand, Clerk from Electrical Office, AW-1; Mr.Ram Dhan, Legal Assistant from Delhi Development Authority, AW-2; Mr. K.K.Sapra, landlord as AW-3; Mr. Balraj Malhotra, neighbour AW-4; another neighbour namely Malik Mathura Dass, AW-5 and Mr. Brahmjit from Gas Agency, AW-6. Tenant-Dr. B.K. Dawesar examined himself as RW-1; Mr. K.K. Meena, Food Inspector, RW-2' Mr. Biru Dass, Head Clerk, Water Department from MCD, RW-3; Mr. Rattan Lal, RW-4; Mr. K.S. Shankaran,RW-5 and Mr. T.J.Shanta Ram, RW-6.

(3.) On consideration of the material on record in the light of arguments advanced, learned Additional Rent Controller held that the demised premises were let out for residential-cum-commercial purposes and tenant has never changed the user of the premises. Besides, professionals are allowed to use a portion of residence for professional purposes. Learned ARC concluded that none of the grounds of eviction pleaded by the landlord under Section 14(1)(c), 14(1)(d) and 14(1)(k) is made out. Accordingly, learned ARC dismissed the eviction petition vide order dated 29th July, 1998. Landlord preferred an appeal and vide order dated 26th May, 2000, learned Tribunal partly accepted the appeal. Finding of the learned ARC that the abandonment of the demised premises as residence for a period of six months before the filing of the eviction petition has not been proved, was upheld by the Tribunal. But on the point of purpose of letting, Tribunal came to the conclusion that demised premises were let out for residential purpose only and the use of demised premises for the purpose of running clinic amounts to misuser which causes nuisance and is otherwise also detrimental to the interests of the landlord inasmuch as he has been served with the notice by the DDA for cancellation of the lease and the tenant has not stopped the misuser despite service of notice dated 19th January, 1976. In the result, it was held that ground of eviction contemplated under clauses (c) and (k) of proviso to Section 14 (1) of the Act are made out and accordingly, learned tribunal passed an eviction order under Section 14 (1)(c) of the Act. As regard the ground under Section 14(1)(k) of the Act, the case was remanded back to the learned ARC for proceeding in accordance with the provisions of Section 14(11) of the Act. Finding of the learned ARC that ground of eviction under Section 14(1)(d) is not made out, was upheld. Feeling aggrieved by the Tribunal's findings regarding purpose of letting and eviction order passed under Section 14(1)(c) & (k), tenant has preferred this second appeal being SAO NO 27/2000.