Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Del) 676

IN THE HIGH COURT OF DELHI AT NEW DELHI
PRATHIBA M. SINGH, J.
Ram Kishan (Deceased) through LRs. – Appellants
Versus
Kanwar Inderjit Singh – Respondent
R.C.S.A. No. 1 of 2020, C.M. Application No. 7775 of 2020
Decided On : 22-11-2021

Advocates:
Advocate Appeared:
For the Appellants : Mr. J.P. Sengh, Mr. R.L. Sinha, Mr. Tanuj Gulati, Mr. Sunil Verma.
For the Respondents: Mrs. Kajal Chandra, Ms. Prerna Chopra, Mr. Viren Kapur, Mr. Divye Puri.

Point of Law: It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so.

Headnote:
Delhi Rent Control Act, 1958 - Section 14 and 14(1)(k) - Lease deed - Tenant - Eviction Order - Validity of - Second Appeal - Whether misuser firstly existed and secondly, whether the misuse was condoned and if so, the effect thereof on the eviction petition - seek eviction and obtain possession of his property - Whether the impugned order dated 14th January, 2020, directing eviction of the tenant, warrants any interference or is liable to be upheld - Appellant - tenant is running a dry-cleaning shop by the name of Uttam Dry Cleaners. The suit property is a leasehold property by the L&DO in favour of the Respondent-landlord.
Finding of the Court:
Admittedly, the conditions in the lease deed have not been amended. The L&DO’s unambiguous affidavit and status report makes it adequately clear that it has not condoned the misuser permanently. The commercial use of the premises has not been regularized by any communication given by the L&DO to the landlord - Court opinion that subsequent circulars or the 1983 Notification or Zonal Development Plan, which may permit condonation or regularization cannot support the tenant’s case in the petition under Section 14(1)(k) of the DRC Act, as misuser continues and has not been stopped - The tenant has enjoyed the suit premises in question for at least more than 50 years. The suit premises is a property located in West Patel Nagar, which is one of the prime areas in Delhi. The tenant had adequate notice to stop the misuser but has failed to do so. The tenant is clearly not residing in the premises and has refused to stop the misuser. This is also not a case of commercial-cum-residential use. Thus, this Court opinion that the eviction order is valid and justified - ld. RCT has concluded that eviction order valid and legal and the tenant did not state in his statement that he is prepared to stop the misuser. Hence the eviction order was upheld.
Result: Second Appeal dismissed.

JUDGMENT :

PRATHIBA M. SINGH, J.

Brief Facts

1. The property in question is a portion of Z-39, West Patel Nagar, New Delhi (hereinafter “suit property”) wherein admittedly, the Appellant-tenant (hereinafter “tenant”) is running a dry-cleaning shop by the name of Uttam Dry Cleaners. The suit property is a leasehold property by the L&DO in favour of the Respondent-landlord (hereinafter “landlord”). The said lease deed was executed on 10th June, 1959, by the President of India, for a period of 99 years commencing from 30th September, 1955. The relevant clauses in the lease deed read as under:

“1. The Lessee doth to the intent that the burden of the covenants may run with the said land and may bind any permitted assignee thereof hereby covenant with the Lessor as follows:

xxx xxx xxx

(v) not to erect more than one building *single storeyed containing one residential flat or *double storeyed consisting of one or two residential flats in all, with a barsati on top, as may be approved by the Chief Commissioner, Delhi or such officer or body as the Lessor or the Chief Commissioner, Delhi may authorise in this behalf, except such outhouses and servant quarters as may be approved by the Lessor. Any servant quarter constructed by the Lessee shall not without any written permission of the Chief Commissioner, Delhi be occupied or permitted to be occupied otherwise than by the bona-fide servants of the persons occupying the main building.

(vi) not without the written consent of the Chief commissioner, Delhi, to carry on or permit to be carried on, on the said land and buildings erected thereon during the said lease any trade or business whatsoever or use the same or permit the same to be used for any purpose other than that of a *single storeyed building consisting of one residential flat or a *double storeyed building consisting of one or two residential flats in all, with a barsati on top, as may be approved for the locality or as provided in the building already erected on the said land.”

2. A perusal of the above two clauses makes it clear that the suit property was to be used for residential purposes. The ground floor of the suit property was taken on rent by the tenant, who started a shop by the name of Uttam Dry Cleaners. A legal notice was issued by the landlord under Section 14(1)(k) of the Delhi Rent Control Act, 1958 (hereinafter “DRC Act”) on 20th September, 1976, to stop misuser, on the ground that objection was raised by the L&DO and re-entry was threatened. In fact, the suit property had stood briefly re-entered because of misuse, though possession was restored to the landlord thereafter. In reply dated 12th October, 1976 to this notice, the tenant claimed that the suit premises has been used as a dry-cleaning shop since inception and the landlord has been regularly receiving rent. Reliance was also placed on a Zonal Development Plan stated to be in force from 18th January, 1972, as per which it was claimed that the premises had been declared as a commercial premises. The tenant curiously claimed that using the premises for residence would be violative of the Zonal Development Plan. In view of this stand taken by the tenant, the landlord on 2nd November, 1978, filed a petition before the ld. ARC, under Section 14(1)(k) of the DRC Act, seeking eviction of the tenant. It is this petition under Section 14(1)(k) of the DRC Act, which is the subject matter of the present second appeal.

3. In the eviction petition, the Assistant L&DO, Mr. D.R. Kapoor, who appeared as AW-7 clearly stated as under:

“607/1976

AW-7 Sh. D.R. Kapoor, Asst. Land and Development Office, Nirman Bhawan, New Delhi on S.A.

I have brought the summoned record. The disputed premises were in the name of Smt. Parkash Kaur before re-entry. During re-entry, the possession remained with the petitioners. The property has been restored to the owners. Ex.AW-7/1 is the photostat copy of the letter issued from L.D.O. office. (Document is allowed to be filed subject to costs of Rs. 20/