KARAM CHAND Vs. OMA DEVI

JUDGEMENT

(1.) This is second appeal by the tenant against' the judgment of the Rent Control Tribunal by which he allowed the appeal of the landlord-respondent and passed an order or eviction against the appellant on the grounds covered by clauses (d) and (h) of proviso to Section 14(1) of the Delhi Rent Control Act (hereinafter to be referred to as the Act). The appellant was admittedly a tenant in a room located on the ground floor of house No. 7048 on a rental of Rs. 61- p.m. The present premises were purchased by the respondent sometime in 1970. An application for eviction was brought on the ground that the premises were let for residential purpose and that neither the tenant nor his family has been residing therein for six months before the filing of the application and also on the ground that the appellant had acquired vacant possession of a house No. 22 F.J.J. Colony. The case of the tenant however was that the premises had been let out for commercial purpose and therefore neither clause (d) nor clause (h) was applicable.

(2.) The acquiring of another house No. 21 F.J.J. Colony and also having shifted to that house prior to six months before the filing of the eviction application was not disputed. The main controversy therefore between the parties is whether the premises in dispute had been let out for residential or commercial purpose. It is a common case that if it is found that the premises had been let out for residential purpose then the respondent-landlord is entitled to have an order of eviction. Now the Tribunal has found that the premises were let out for residential purpose and not for commercial one. Normally this is a finding of fact and would be immune from challenge in the second appsal. Mr. Vohra and Mr. Choudhary learned counsel for the appellant however contended that the order of the tribunal was liable to be set aside on the ground that it had allowed additional evidence to be produced before him and that this has vitiated the whole proceedings.

(3.) In the application for eviction it had been alleged that the premises had been let out to the appellant by the previous landlord. This was admitted in the reply by the tenant who had however pleaded that he was in occupation of a jhuggi in front of the shop in dispute and had been allotted a quarter No. 22-F.J.J. Colony in lieu of jhuggi and not the premises indispute. During the course of evidence however the appellant took the stand that he was in possession of the premises in dispute since 1957 from the Custodian. This apparently put the respondent-landlord to search the record of the Custodian from that period so as to show the nature of the letting out of the premises to the appellant. That is why be made an application under 0.41 Rule 27 Civil Procedure Code before the Tribunal seeking to place on record the documents from the Rehabilitation department like survey registers and the occupation register showing the nature of letting out by the department. The Tribunal apparently felt that these documents which were undoubtedly from government and public office and finding that there was ambiguity in the evidence and the circumstances attending upon the occupation of the premises by the tenant prior to the purchase by the present respondent allowed the production of evidence in the interest of justice on payment of costs of Rs. 100.00 . The costs were paid by the respondent and accepted by the appellant. Mr. Tandon counsel for the respondent raised objection that it is not now open to the appellant to raise any objection to the permission to lead the additional evidence after having accepted the costs. In my view the objection is well founded. If the appellant wanted to make a grievance of the order of the production of additional evidence he should not have accepted the costs but when he did so he had estopped himself from challenging this part of the order. Mr. Vohra had urged that the production of the additional evidence could not be allowed to fill up the lacuna and referred to Parsotim Thakur and others v. Lal Mohar Thakur and other (A.1.R. 1931 P.C. 143) and Natha Singh and others v. The Financial Commissioner Taxation Punjab and others (A.1.R. 1976 SC. 1053). The principal propounded is unexceptionable but the tribunal felt that there was ambiguity in the situation as to the circumstances in which the property was occupied by the appellant and permitted the record to be produced were undoubtedly from the public office and if the tribunal has exercised its discretion and allowed the production of the additional evidence it is not for this court in second appeal to review it, and any objection on this score is therefore futile.