KASTURI LAL Vs. SHIV CHARAN DAS MATHUR

JUDGEMENT

(1.) This second appeal under section 39 of the Delhi Rent Control Act, 59 of 1958 (hereinafter referred to as 'the Act'), has been tiled by the tenant against the order of the Rent Control Tribunal, dated 10th September, 1975 by which it has dismissed the appeal in limine and affirmed the order of the Additional Controller, dated with September, 1975 ordering the appellant to deliver possession of the premises in dispute to the respondent,

(2.) The material facts of the case are that the premises in dispute (Nos. 2672-73, Ward No. V, Roshanpura, Nai Sarak Delhi), belong to the respondent landlord. On 3rd April, 1972 the respondent landlord filed an application under section 21 of the Act for permission to let out the said premises for a period of two years with effect from ll th April, 1972. The appellant tenant filed a written statement admitting the contents of the application. The statements of the parties were recorded and the Controller by order dated 6th April, 1972 granted permission to let out the premises for a period of two years. The permission was granted for two years commencing from llth April, 1972 and expiring on 10th April, 1974 and the premises were let out for the same period, but the rent was charged from 1st April, 1972. On 4th April, 1974 the respondent landlord served a notice terminating the tenancy and having done so, he filed an application on 28th May, 1974 for issuance of warrant for delivery of possession of the premises in dispute. Its notice was issued to the appellant, who raised objections. The objections inter alia, were that the premises in dispute was really commercial and not residential and so they fell outside the purview of section 21 of the Act. It was also alleged that the shutters, "tand" etc. had been put up in the premises which had in fact been used for business purposes. Another objection was that the rent for the period up to 10th October, 1974 had been paid and as such a new tenancy had been brought about. The Additional Controller after recording evidence of the parties held that as was evident from the proceedings to grant permission under section 21, the appellant before me had taken the disputed premises on rent for a limited period of two years for residential purposes alone and after having obtained such permission, it did not lie in his mouth to say that the same were let out for commercial purposes and since the letting purpose was residential, its subsequent use for commercial purpose was not material. The Additional Controller also repelled the contention that any separate writing was necessary for creation of the tenancy after obtaining the permission. Consquently, the objections were dismissed with costs and a warrant for delivery of possession was issued. Feeling aggrieved, the tenant appellant filed an appeal before the Tribunal. In this appeal. the main contention raised was the necessity of a further writing creating the tenancy after obtaining the permission of the Additional Controller. This did not prevail. It was also submitted that the landlord had accepted rent after the expiry of the period of tenancy, but this was within the period of six months allowed for applying for obtaining possession and as such the objection failed. The Tribunal followed the decision of Avadh Behari J. reported as Ashok Chopra v. Manmohan, 1975 RLR, Note 64. and dismissed the appeal in limine.

(3.) Mr. Harnam Dass, the learned counsel for the appellant has, in support of the appeal contended that (1) the premises were commercial and so section 21 of the Act did not apply ; (2) the legal requirements of the aforesaid provision had not been complied with, since there was no written agreement creating the tenancy after the grant of permission by the Controller ; and (3) the rent had been accepted by the landlord after the expriy of the period of two years and as such it had created a new tenancy.