CHHATU THAWANI Vs. KAPOORI DEVI

JUDGEMENT

(1.) This is an appeal filed by tenants Chhatumal Thanwani and Ruchi Ram against the judgment of Rent Control Tribunal, Delhi, dated the 3Cth of July 1964 under section 39 of the Delhi Rent Control Act, 1958.

(2.) . The landlady is Smt. Kapoori Devi respondent. In January 1948 the entire second floor of the three storeyed house situate at 87. Darya Ganj, Delhi, was let to the 3.ppellants as tenants. The respondent filed a suit for possession on 3rd of November 1950 infer alia on the ground that the appellant had sublet the premises. The suit was dimissed on the 30th July 1951. An appeal taken to the Court of the Senior Subordinate Judge also failed and was dismissed on the 28th of March 1952. The present petition was filed by the respondent under section 14 of Delhi Rent Control Act 1958 (Act 59 of 1958), after notice through her lawyer for recovery of possession of the premises. The eviction was sought on the grounds of (a) non-payment of rent since 1st April 1959; (b) subletting without the prior consent of the landlady and (e) bona fide requirement by the landlady for the residence of herself and her faimly members. In paragraph 16 of the written statement it was alleged by the appellants that the respondent had already filed a suit for ejectment on the ground that the respondent had sublet the premises to one Gopi Thawani and therefore the present suit was barred on the principles of res judicata. In the first suit the landlady did net ask for possession on the ground that .she required the premises for her residence or for the residence of her family members. The appellants denied subletting and also disputed the claim of the landlady that she required the premises. It was further alleged that the landlady had three rooms with court-yard, kitchen. Bath-room and latrine, and that she had let out three rooms on the ground floor adjacent to the portion in her occupation to one Mr. Tandon and his son-in-law, about 6 months earlier and had let out another portion to one Mr. Sharma about 12 months earlier. On the basis of these facts it was contended by the appellants that her plea of bona fide requirement was not valid and did not merit consideration. On the 16th of April 1960 the Rent Controller struck out the appellants defence after three witnesses had been examined on behalf of the respondent. The remaining witnesses of the respondent landlady were examined ex-parte and one of such witnesses was Babu Ram P. W. 5, the husband and the attorney of the respondent. On 27th of April 1960 the Rent Controller ordered the eviction of the appellants ex-parte on grounds of non-payment of rent and personal requirement. The order dated the 16th of April 1960 striking out the defence of the appellants was set aside in appeal by the Rent Control Tribunal on 24th 'of January 1961 and the Tribunal directed the retrial of the case from the stage, at which it was, immediately before the striking out of the defence. The evidence was then recorded second time and Babu Ram husband ef the landlady respondent appeared again as a witness. By order dated the 21st December 1963, the Rent Controller dismissed the application for ejectment. The Rent Controller did not accept the plea of the respondent landlady that she was suffering horn rheumatism and needed the premises in dispute because the promises in he occupation was damp and not suitable for such a patient. He also held that even otherwise the landlady did not require the premises in dispute. On appeal by the respondent to the Rent Control Tribunal, the order of the Rent Controller was reversed and six month's time was given to the appellants-tenants to vacate the premises. The Rent Control Tribunal inter alia held that the accommodation in possession of the respondent- landlady was quite insufficient for the needs of the landlady and the dependent members of her family and that her ailment necessitated a more sunny place, than the ground floor which was damp.

(3.) Mr. R. S. Narula, the learned counsel for the appellants submits that the petition for ejectment was not maintinable because there was no notice terminating the tenancy Admittedly this point was neither raised in the written statement nor before any of the Courts below. In view of this I see no cause to permit this point to be raised at this stage particularly because the scope of appeal under section 39 is limited to substantial questions of law. Mr. Narula then draws my attention to section 14(l)(e) and submits that for the purposes of the said provision the person seeking eviction should not only be a landlord but also an owner. According to the learned counsel it had not been challenged in the petition that the respondent was the owner of the premises. In paragraph 18 of the application it had been stated that-"* * * the premises are bona fide required by the landlady for the residence of herself and her family members." The term "landlady", in its common acceptation means both an owner as well a person who has let out a premises to a tenant. There is no warrant for the proposition that in paragraph 18 the respondent was using the word in a restricted sense. That being so it is wrong to contend that she did not even allege that she was the owner of the premises. It is significant that the appellants never raised this question cither in the written statement or before any of the Courts below. As a matter of fact it is stated in the order of the Tribunal that the ownership of the premises was admitted. In this view l find no force in the contention of the learned counsel,