SHAM LAL Vs. BAROO MAL

JUDGEMENT

(1.) Respondent Baroo Mal sought eviction against his tenant, the present appellant on various amongst the following grounds namely that the tenant has acquired possession of another residential premises. Hence eviction under Section 14(1) (h) of the Delhi Rent Control Act (in short the Act).

(2.) To attract the provisions of Section 14(l)(h) of the Act the landlord has to prove (i) that premises in question was let out for residential purpose; and (ii) that the tenant has acquired vacant possession of another premises. To satisfy these ingredients the landlord has to plead in the petition both these ingredients. Admittedly the room under the tenancy of the petitioner was given for residential purpose. To satisfy the second condition reply to para 18(a)(ii) of the written statement can be looked into wherein the present petitioner has admitted that additional accommodation has been acquired to settle large family. The said residential premises had been acquired from Shri Sunder Lal Kapur on rent. This appellant admitted in his written statement that "since his family was large, therefore, additional accommodation was required to accommodate the whole family which could not be accommodated in the tenanted premises". Factum of having acquired additional accommodation in the house of Shri Sunder Lal Kapur has not been denied. In the course of evidence, however, this appellant took the plea that the said additional accommodation was acquired by his son Virender Kumar. to strengthen his case, appellant herein adduced the evidence of Shri Sunder Lal Kapur. He made the statement wherein he stated that accommodation was let out to Mr. Vinod Kumar on rent whereas respondent's testimony through out had been that the accommodation in the house of Shri Sunder Lal Kapur was acquired by the appellant herein. No rent deed or receipt was produced to show that Shri Vinod Kumar had acquired the premises from Mr. Sunder Lal Kapur. Controller rightly drew inference against the appellant. Appellant failed to prove that it was Vinod Kumar who took that premises on rent. This part of appellant's testimony and that of Mr. Sunder Lal Kapur is contrary to the admission made by this appellant in reply to para 18(a)(ii) of the petition. It was in this background that the Court found that both the ingredients of Section 14(l)(h) of the Act have been satisfied, therefore, the decree of eviction must follow. Aggrieved by the order of eviction this second appeal has been preferred by the tenant.

(3.) To understand when property stood acquired. We must know what is "acquired"? It means one coming into possession. That is to say that the tenant obtained vacant possession of another premises by virtue of a right vested in him. This right can be two-fold, (i) either by ownership; or (ii) by becoming tenant of another premises. The Court in the case of Shyam Sunder Vs. Kishan Chand, 1966 DLT page 223 while dealing with identical issue observed that vacant possession can be acquired by taking a premises on rent. Since the appellant acquired tenancy premises in the house of Shri Sunder Lal Kapur, Hence under law he acquired vacant possession of another premises, therefore, liable to be evicted. Whether the tenant actually shifted to the newly acquired premises or not is not relevant. It also does not matter whether the premises are used by the tenant as actual residence or does not at all use either or both of them. The version given by the appellant that his son Vinod Kumar acquired vacant possession in the house of Shri Sunder Lal kapur has not been proved on record. This was not the case set up by the appellant in his written statement. It was for the first time in the evidence that the appellant pleaded that his son acquired the premises from Mr. Sunder Lal Kapur. The Courts below i.e. the Controller as well as the Tribunal rightly rejected this plea being in variance with the pleadings. The contention of Mr. S.P.Pandey that the strict procedure of the Code of Civil Procedure is not applicable in rent matters. There is no quarrel with this but at the same time Court cannot allow a party to take the other party by surprise. By admitting in reply to para 18(a)(ii) that appellant acquired the premises from Mr. Kapur he could not be allowed to withdraw this admission nor could be allowed to say that it was his son who acquired. Moreover, in second appeal this 'Court cannot reappraise evidence. No error of law has been pointed in the finding of the Courts below. There is no denying the fact that rigours of the procedure laid down in the Civil Procedure Code may not be applied to the rent matters. But at the same time principles of natural justice docs apply. The appellant could not take the respondent by surprise by stating certain facts in the evidence and not pleading the same in the written statement. The purpose of filing the written statement was to enable the appellant to meet the case of the respondent. In the written statement the present appellant in no uncertain words admitted that he had taken the additional accommodation because his family being large could not be accommodated in the tenanted premises. Therefore, the Controller and the Tribunal were right in drawing the inference that this tentamounts to admission on the part of the present appellant that it was he who acquired the additional accommodation in the house of Shri Sunder Lal Kapur and not his son Shri Vinod Kumar. Gujarat High Court in the case of H.R.Shah Vs. A.M.Kaparia, 1982(2) RCJ page 573 went to the extent of saying that if there is evidence that the tenant and his family members are living together and one of them has acquired suitable residential accommodation and if there is no evidence to the effect that they had not been looking upon themselves as one unit or when the members of the family live together, mess together, then acquisition of another accommodation by one of them would be considered to be acquisitioned by the tenant. In this case it was not the case of the appellant that Vinod Kumar his son who is 22 years of age was not living with him or that he was not having common mess with him or that their family was not one unit. Rather the reply by the appellant to the respondent's petition in particular to para 18(a)(ii) clearly show that the appellant's family was one unit, they were living together, messing together and being large family required additional accommodation, which this appellant acquired in the house of Shri Sunder Lal Kapur. Therefore, the principle laid down in the case of Shri H.R.Shah (Supra) would apply to the facts of this case that the acquisition of additional accommodation would be acquisition by the tenant. What we have to see is whether the tenant has acquired another residence. The reason why the tenant has acquired another residence is not relevant. It would be thus no defence to a petition that the tenant had acquired another residence because the tenanted premises was not sufficient to meet the requirements of his large family.