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1993 Supreme(Del) 718
High Court Of Delhi
KESHAV METAL WORKS - Appellant
Versus
JITENDER KUMAR VERMA - Respondent
.
Decided On : 12/15/1993
Aman Lekhi, Vijay Kishan
Headnote:1. Delhi Rent Control Act - Section 14(1)(e) — Consequence of non-mention of letting Purpose in Plaint when tenant knew the case of the landlord and led evidence on that issue discussed — Whether petition can be rejected for non-writing letting Purpose particularly when material facts were known to both parties, — Whether the use of the premises would be commercial mearly because tenant receive dak and correspondent discussed.
2. Code of Civil Procedure 1908 - Order 7 Rule 11 — Rejection of plaint — At what stage defendant/respondent should raise the objection of non-maintainability discussed.
3. Registration Act - Section 49 — Courts power to look into unregistered lease deed to determine collateral purpose discussed. In this revision the two main grounds of challenge were that (1) the plaint did not disclose the letting purpose and (2) the trial court ought not to have looked into an unregistered lease deed to determine the letting purpose.
Dismissing the petition, the Court.
Held:
1. If parties understood each others case and led evidence accordingly then that party cannot be allowed to raise the objection about the maintainability of the eviction petition.
2. No doubt it is a mandate of the statute under Section 14(1)(e) of the Act that the eviction petition must disclose the purpose of letting, but we cannot ignore the fact that petitioner knew the case of the landlord, and thereforee, led evidence on that issue. thereforee, subsequently tenant cannot be allowed to raise the objection about the maintainability of the petition on account of lack of material facts or cause of action.
3. This objection is not purely a legal objection, it pertained to facts pleaded and understood by the parties and thereafter led evidence. Hence petitioner is now stopped from raising this objection before this Court in revision.
4. The Petitioner ought to have sought the rejection of the petition for non-disclosure of cause of action at the earliest. If the petitioner had raised this objection before the trial court, it would have given opportunity to the landlord to either amend the petition or withdraw the same. Having not done so, it would amount to waiving of this grounds. Such a plea cannot be permitted to be raised at the revision state.
5. In view of the material facts being known to each party, the petition can not be rejected for non-writing of specifically the letting purpose.
6. When a tenant uses the premises for receiving his business Dak or correspondence it would not make the user as commercial.
7. In fact the nature, character and user of possession, being not a term of the lease it would amount to be a collateral purpose, hence can be looked into even if the lease deed was unregistered, in order to find out the purpose of letting. Under the proviso to Section 49 of the Registration Act, purpose of letting i.e. nature of tenants possession being only a collateral purpose, thereforee unregistered lease can be looked into to determine the purpose. Letting purpose is not a term of the lease deed. It is only the terms of the lease which cannot be looked into if an unregistered lease deed. The essential elements of the lease are (i) the parties; (ii) the subject matter or immoveable property; (iii) the demise or partial transfer; (iv) the term or period; (v) the consideration or rent. But the nature and character of possession does not fall in the category of essential elements. It is distinct from the main purpose of the lease. Hence the unregistered lease deed can be looked into the find out the letting purpose.
The mere fact that the premises is incidently used by the tenant for receipt of his business Dak or for correspondence purposes with Sales Tax Deptt., or other authorities where he has given this as his address, would not change the user from residential to commercial.
( 1 ) M/. S. Keshav Metal Works and Mrs. Manorma Vaid, petitioners herein were tenant in the premises bearing No. A-8/a-7/2 New Friends Colony, New Delhi. Respondent, Mr. J. K. Verma,landlord of the premises sought the eviction under Section 14 (1) (c) of the Delhi Rent Control Act (hereinafter called the DRC Act) on the ground of bonafide requirement. Brief facts are that the owner of the premises Mr. J. K. Verma was working in the Steel Authority of India Ltd at Delhi. He was transferred to Burnpur and thereafter retransferred to Delhi. He had taken loan from his employer for raising construction on the premises in question. His employer some where in June 1981 look the decision that those of the employees who had been sanctioned House Building Advance for building a house at the place of their posting should vacate the company allotted house. / lease accommodation within a period of one year l rom the date of issue of the said circular. This decision was conveyed to the petitioner vide letter dated 4. 2. 82. Since he was to vacate the company allotted house he needed this premises for his bonafide requirement for himself and members of his family as he had no alternative accommodation available except the premises in question.
( 2 ) SUMMONS were served on the present petitioners who sought leave to defend. The same was allowed. The petitioners herein filed written submissions raising preliminary objections, inter alia, that another petition on the same ground was pending before the Additional Rent Controller (hereinafter called in short ARC), therefore, this petition for bonafide requirement was not maintainable. On merit they took the plea that the premises was let out for residential -cum-commercial purposes and that they were residing in the premises and also allending to the business from this very premises, and that the landlord did not require premises for his residence.
( 3 ) EVIDENCE was led by both the parties. The trial court after going through the pleadings and the evidence adduced and also taking into consideration the essential ingredients of Section 14 (l) (e) of the D. R. C. Act, namely : (i) whether the landlord was the owner of the premises; (ii) whcther it waslet out for residential purposes, (iii) whether it was required for himself and member of his family and (iv) whether he had no other reasonably suitable accommodation , came to the conclusion that the premises wasrequired bonafide. While taking note of the above four ingreredients, the trial court came to the conclusion that Shri J. K. Verma was the the landlord \owner and that the premises was let out for residential purpose only and that the same was required bonafide by the owner and that he had no alternative accommodation available. The A. R. C. passed eviction order against the present petitioners.
( 4 ) IT is against this impugned order of eviction, that the petitioners /tenants, have come up in Revision challenging the said order, inter alia, on the grounds that (1) the eviction petition filed by the respondent/landlord, did not p73 disclose any cause of action as stipulated under Section 14 (l) (e) of the DRC Act; alternatively the unregistered lease deed/ rent agreement could not have been looked into by the A. R. C. ; (2) that rejoinder cannot take the place of plaint nor can supplement or fill up the lacuna left in the eviction petition; (3) that no independent wilness was adduced by the landlord to corroborate his testimony particularly when the onus was on him to discharge. He failed to do so.
( 5 ) I have heard learned counsel for the petitioner Mr. Aman Lekhi and Mr. Vijay Kishan for the respondent. The main thrust of mr. Lekhi s argument is that in the eviction petition it has not been pleaded that the premises was let out for residential purpose alone. Hence the petition lacked material fact which constitute cause of action. One of the essential requirements for securing an order of evietion under Section 14 (1) (e)
