KIDAR NATH SODHI Vs. T R KAPOOR

JUDGEMENT

(1.) This civil revision has been brought under Section 25-B(8) of the Delhi Rent Control Act challenging the eviction order dated November 5, 1985, passed by Shri G.D. Dhanuka, Additional Rent Controller, on the ground of bona fide requirement for residence covered by clause (e) of sub-section (1) of Section 14 of the Delhi Rent Control Act.

(2.) Mr. R K. Aggarwal, counsel appearing for the petitioner-tenant, has challenged this eviction order only on one point that the finding of the Additional Rent Controller that the premises had been let out to the petitioner-tenant for residential purpose only is perverse and so, the same should be set aside. The findings of the Additional Rent Controller that the respondent is the landlord-owner of the premises in question and the said premises are required by him for occupation as residence and also for his family members dependent upon him and he is not in possession of any reasonably alternative suitable residential accommodation, aie not challenged before me.

(3.) According to the case set up in the petition, the premises let out to the tenant are residential while the tenant pleaded that in fact, the premises had been let out to him for residential-cum-commercial purposes since May 1979 and from the very inception of the tenancy he has been using the premises for composite purposes inasmuch as he has been carrying on business of supply of hospital clothing and surgicals under the name and style of M/s. R.K.. Enterprises from the premises in question. In the replication the contention of the tenant in this respect was controverted by the landlord. The landlord appeared as AW 1 and examined his neighbour AW 2 Shri Batla and AW 3 Smt. Krishna Devgun, through whom the premises are stated to have been let out, to prove that the premises were let out to the petitioner for residential purposes only and they have not seen the petitioner carrying on any business in the premises in question. The tenant came as RW 1 and deposed that in fact, he took the premises for composite purposes and he has been using the said premises for commercial purposes as well since the very inception of the tenancy and he proved on record Exs. RW1/1 to RW1/8, RW2/1 to RW2/8 & RW4/1 to RW4/7 the documents showing that he has been receiving certain business correspondence at the address of the premises inquestion. He admitted that he has been knowing Smt. Krishna Devgun since 1967. The tenant for the first time came out with the story that in fact, the tenancy was settled through one Surinder Pal, property dealer. It is not out of place to mention that the landlord had at the very initial stage of the case while contesting the application of the tenant seeking leave to defend, taken a specific plea that the premises were let out through Smt. Krishna Devgun. The tenant in the written statement did not come up with the plea that in fact, the premises had been let out through any Surinder Pal, Property Dealer, Thus, the Additional Rent Controller was right in coming to the conclusion that this plea of the tenant that Surinder Pal, Property Dealer, was instrumental in bringing about the letting of the premises in question is an after-thought plea. He had given reasons to disbelieve RW5 Surinder Pal inasmuch as Surinder Pal claimed that he was maintaining regular register in which he has been making entries regarding transactions yet for reasons unknown did not care to preserve that register. If he has been working as regular property dealer,,there is no reason that he should not preserve his record and should destroy the same. He has not given any reason for destroying the said record. The tenant examined RW2 Arun Kumar, RW3 Paras Ram, RW4 Ved Prakash, RW6 Abdul Aziz and RW7 Khem Chand to show that they have business dealings with the petitioner-tenant at the premises in question. The nature of the business of the petitioner appears to be that he procures orders from different customers and arranges for supplying the goods in accordance with the said orders. It is not the case set up-in the written statement by the tenant that any exclusive portion of the demised premises has been earmarked for commercial activity. The petitioner with his wife and two children admittedly have been residing in the demised premises which comprises of only two rooms, kitchen and other amenities. In the absence of any document of letting, the letting purpose could be ascertained either from the oral evidence examined in the case with regard to the terms of the tenancy settled between the parties and in absence thereof, from the nature of the premises, the locality where the premises are situated and the user to which the premises have been put from the very inception of the tenancy. The Additional Rent Controller thought it fit to believe the statement of the respondent and the respondent's witnesses for coming to the conclusion that the letting purpose of the premises was residential only. This Court would not like to appraise the evidence arid come to a different finding when it is clear that this finding of fact given by the Additional Rent Controller is based on correct appraisal of the evidence led before him. Be that as it may, it is also pertinent to mention that before filing the eviction petition the landlord had served a notice of eviction on the tenant setting up the ground of bona fide requirement of residence for the landlord and his family members. The tenant had sent a reply Ex. AX1 through Shri Jagdish Chander Mongia, Advocate. In this reply the tenant never came up with the plea that he had taken the premises in question for commercial purpose as well, In Govind Ram Bansal v. Narinder Singh, 25 (1984) DLT (SN) 4, it was held that if a tenant in a particular reply to noticed failed to set up the plea that premises had been let out for commercial purposes as well, an inference can be drawn by the court that the plea taken by the tenant for the first time in the written statement in this respect is an after-thought plea.