P.K Bahri, J.:— The petitioner-landlord has come up in revision under Section 25-B(8) of the Delhi Rent Control Act (hereinafter referred to as ‘the Act’) challenging the judgment dated May 27, 1986, of Shri R.K Sharma, Additional Rent Controller, Delhi, by which he had dismissed the eviction petition brought by the landlord on the ground of eviction.
2. Admittedly, Khalil Raza was a tenant in the demised premises, which is house No. 867, Lane Madarsa Hussain Bux, Tokriwalan, Delhi, at the rental of Rs. 10/- per mensem and had become tenant of the petitioner by operation of law on petitioner purchasing this property from the previous owner vide sale deed dated November 28, 1960. Khalil Raza also executed a rent note in favour of the petitioner on January 20, 1961, in which it was shown that the premises had been let out only for residential purpose. On the death of Khalil Raza on October 2, 1970, respondents 1 to 9 (his legal heirs) became tenants under the petitioner. Respondent No. 10 is wife of respondent No. 2 living in the premises. The petitioner's family comprises of himself, his wife and his mother and four sons and five daughters, out of whom one son, namely, Mohd. Iqbal is married and is having two children presently. According to the petitioner, he and all his family members are residing in premises No. 516, Tokriwalan, Delhi, at the rental of Rs. 16/- per mensem and the accommodation available to the petitioner and his family members in that house comprises only of one room measuring 13′.4′ × 7′.3′ verandah, kitchen, latrine, open courtyard, on the first floor and a room measuring 13′.9″×7′.3″ and open terrace, on the second floor. It was pleaded that the petitioner and his family members are not in possession of any other reasonably suitable residential accommodation and thus, they bonafide require the demised premises for occupation as residence for themselves.
3. The petition has been contested by the respondents by filing two sets of written statement, one by respondents 4, 6, 7 & 8 and the other by respondents 1, 2, 5, 9 & 10. Similar pleas were taken in these two written statements. Respondents controverted the fact that the petitioner is the owner of the property in question and that premises had been let out for residential purposes only and also pleaded that mother of the petitioner is not residing with the petitioner and in fact, she is residing with her brother in a separate house. Respondents further pleaded that the petitioner has concealed certain residential accommodations available to him and his family members from the court and thus, the eviction petition was liable to be dismissed on that score. It was mentioned that petitioner had purchased a plot in Lane No. 12 at Jafrabad, Shahdara, in the name of his son Mohd. Iqbal and has constructed a house thereon which comprises of three rooms, kitchen, bath, latrine and courtyard and that the petitioner has also got double storeyed house No. 872/1, Gali Madarsewali, Churiwalan, Delhi, which is a residential accommodation and the petitioner has also large premises No. 180 in Lane No. 10 at Jafrabad. It was also pleaded in the written statement that the petitioner has entered into an agreement for sale in the sum of Rs. 20,000/- with one Hamid Ali and Rs. 2,000/- has been received in advance and this eviction petition has been filed only to get vacant possession and deliver the same to the prospective vendee. It was also mentioned that the petitioner had filed a civil suit for recovery of possession against the respondents which was dismissed on April 30, 1977.
4. The Additional Rent Controller in his judgment has given the findings that the petitioner is the owner of the property in question vide sale deed of which Ex. AW1/1 is the copy and that premises in question have been proved to have been let out for residential purposes only vide rent note Ex. AW1/6 and he also gave a finding that Khalil Raza, who had taken the premises on rent, admittedly was in employment of some other persons as a rent collector and obviously he could not have taken the premises for any commercial purposes; and it was also clear that Khalil Raza and his large number of family members resided in the premises in question which comprised of only one room on the ground floor and one room on the first floor besides verandah and courtyard and thus, the premises have been used for residential purposes. These findings have both been challenged before me by the learned counsel for the respondent.
5. It is also pertinent to mention that in the written statements the respondents did not plead that the sons and daughters of the petitioner are not living with the petitioner jointly. Plea, of course, was taken that some of the sons of the petitioner are financially independent. Even the Additional Rent Controller has given a finding that all the family members including the mother of the petitioner are living jointly with the petitioner and the tenanted accommodation in which they are living, on the face of it, is not reasonably suitable for their residential needs. Although one of the respondents, who appeared as RW 1 and the witness RW 2 stated in court that two sons of the petitioner are not living with the petitioner but obviously such a new plea being raised by the respondents for the first time in his evidence could not be given any importance. The petitioner has categorically deposed that he and all his sons and daughters are living together and he has also produced on record the ration card, copy Ex. AW1/5, in corroboration of his statement. So, it is not possible to countenance the after-thought plea of the respondent brought only in his evidence that two sons of the petitioner are living in different places.
6. However, the learned Additional Rent Controller has dismissed the eviction petition on the ground that the petitioners has two other houses available to him and he has not mentioned the said houses in the eviction petition and thus, eviction petition is malafide. This finding of the Additional Rent Controller has been vehemently assailed on behalf of the landlord. It has been argued that the Additional Rent Controller has not only ignored the material evidence in the shape of documents but also did not appraise the oral evidence led by the landlord which clearly proved that the other two houses bearing No. 872/1 located in Gali Madarsewali, Churiwalan, Delhi and No. 296 located in Lane No. 12, Jafrabad, are commercial premises of the petitioner and his son respectively and were not residential premises. Hence, the landlord was not guilty of concealment of any material evidence so as to be non-suited.
7. There is ample force in this contention of the landlord. As far as house No. 872/1 Gali Madarsewali, Churiwalan, is concerned, the respondents in the written statement did not at all allege as to what sort of accommodation is available in that house. In replication the petitioner clearly pleaded that the said premises is commercial premises where the petitioner is carrying on his business of washing and dyeing clothes and the accommodation in that house comprises of only one hall in the ground floor and there is no bath room, latrine, in the said house and for the last about 30 years the premises have been used by the petitioner for his business and said premises cannot be used for residential purposes.
8. At the outset, I had proposed to the learned counsel for the respondents that it is not difficult to get that house inspected from a Local Commissioner in order to see whether any amenity like bath room, latrine and kitchen are available in that house in order to determine whether the said house is residential or not. Mr. M. Ahmed, counsel for the respondents, after consulting one of the respondents present in Court, apprised the Court that in fact, there is no latrine in the house while a public latrine is available in the street. In case the said house comprised of any residential accommodation, the respondents would not have failed to mention in their written statements in para 23 that such accommodation including amenities like latrine, kitchen and bath are available in that house. While referring to house No. 872/1, the respondents conveniently remained evasive on this point.
9. The petitioner coming as AW 1 made a categorical statement that the said house is non-residential and there are no bath, latrine or kitchen located in that house and that said house has been used by him for running his business. In cross-examination no suggestion was given that any such amenities like latrine, bath and kitchen exist in that house. Only bald suggestion was given that the said house was residential which was, of course, denied by the petitioner. The inability of the respondents to give any specific suggestion to AW 1 in cross-examination regarding existence of any such amenities like latrine, bath and kitchen in the said house should have led the court to draw an inference that the testimony of AW 1 that such amenities do not exist in that house is credible. AW 3 is one of the residents of the same lane where the said house is located and he has made a categorical statement that there exists only one hall in that house and the same was being used for running a business by the petitioner. AW 5 also made a similar statement. The Additional Rent Controller has not even cared to refer to their statements in his judgment whereas in rebuttal apart from statement of RW 1 we have only statement of RW 2 Mohd. Yusuf regarding the nature of the said house. Both of them could have no occasion to enter the said house and see as to what accommodation exists in that house.
10. In cross-examination of AW 5, the respondents themselves have suggested the facts that there does not exist any staircase in the said house and the petitioner is also having a workshop of dyeing clothes at Jafrabad-Delhi. So, keeping in view the fact that no residential amenities like kitchen, bath and latrine exist in the said house and there being no cogent reason for disbelieving the statements of the petitioner and his two witnesses mentioned above, 1 do not understand how the Additional Rent Controller should come to the finding that the said house is not commercial. As a matter of fact, the learned Additional Rent Controller was swayed against the petitioner only on the ground that in the eviction petition the landlord did not make reference to the said house. It is not the law that the landlord has to refer to in pleadings non-residential premises available to him while seeking eviction of the tenant on the ground of bonafide requirement for residence. It is only where the landlord intentionally conceals some residential accommodation available to the landlord from the Court by not making reference to the same in the pleadings that the claim of the landlord for bonafide requirement of residence could be negatived. Mere omission of the landlord to make reference to some commercial house belonging to him in the eviction petition does not show any malafide on the part of the landlord and it does not show that the landlord has not come to the Court with clean hands.
11. Now as far as house No. 296, Lane No. 12, Jafrabad, is concerned, the landlord in replication in para 22 pleaded that the said house was also commercial in nature and his son Mohd. Iqbal is carrying on his own business of dyeing the clothes in that house and that the house comprises of one hall and one room only and the said house is also not residential in nature. It was controverted by the landlord that there existed any three rooms, latrine, bath and kitchen in that house. Again the Additional Rent Controller misled himself by not making reference to a material document produced on the record by the petitioner which clearly indicated that the said house is commercial. The said document is Ex. XI, which is a copy of inspection register of the Municipal Corporation of Delhi, which shows that the said house comprises of only two rooms and one verandah and was-being used for commercial purposes for carrying on the business of dyeing clothes. The petitioner also examined his son AW 1 and two neighbours AW 6 & AW 7, who all deposed that the said house is commercial and has been used from the very beginning by Mohd. Iqbal for his business. The house was acquired about 3-4 years back from the date of the filing of the petition. It is stated at the Bar by the learned counsel for the petitioner that the said house is located in unauthorised colony. At any rate, in rebuttal statements of RW 1 & RW 2 were not trustworthy on the point that the house contained any residential amenities like kitchen, bath and latrine. It is not shown that entries in Ex. XI, a document prepared by the officials of the Municipal Corporation of Delhi in due discharged of their duties, are not correct. So, the findings of the Additional Rent Controller that this accommodation was concealed by the petitioner intentionally to mislead the Court cannot be sustained. The finding of the Additional Rent Controller ignoring the material documentary and oral evidence led by the petitioner suffers from grave illegality and is almost perverse and needs to be set aside by this court.
12. Then, reference has been made by the learned counsel for the respondents to house No. 180, Lane No. 10, Jafrabad. It was clearly mentioned in the replication that neither the petitioner nor any of his sons is owner of the said house. It so happened that in cross-examination of AW 1, at one place it appeared that petitioner's son has got house No. 180 at Jafrabad. No suggestion was given as to what was the accommodation in that house. According to the petitioner, this was an erroneous admission recorded in his statement and in order to prove that the admission is erroneous, the petitioner after taking permission of the Additional Rent Controller for leading Additional evidence brought on record Ex. X 2, copy of the entry from the inspection book of the Municipal Corporation of Delhi, showing the house No. 280/180, Lane No. 10, Jafrabad, is owned by one Hassenudin, who was examined as AW 7 and he made a categorical statement that he is the owner of the said house and he has purchased the plot of the said house vide sale deed, copy Ex. AW 7/1. The respondents were given opportunity to lead evidence in rebuttal. Apart from examining RW 1, one of the respondents, no documentary evidence was brought on record by the respondents to show that the said house is owned by the petitioner or any of his sons. It is settled law that an erroneous admission of fact can be allowed to be withdrawn by a party if the party is able to show that the said admission had been made due to some misapprehension. If we read the cross-examination of AW 1, it appears that AW 1 was perhaps making reference to house standing in the name of his son at Jafrabad i.e house No. 296, but due to some mistake he gave the number as 180. In case there had existed any other house 180 in Lane No. 10, Jafrabad, besides the one mentioned in Ex. X 2 document, the respondents would not have failed to get some copy of the record of the Municipal Corporation of Delhi in that respect. Even the Additional Rent Controller was not inclined to agree with the plea of the respondents that house No. 180, Jafrabad, belongs to petitioner or any of his sons. No other point has been urged before me.
13. In view of the discussion above, I allow the civil revision and set aside the impugned judgment of the Additional Rent Controller and pass an eviction order against the respondents and grant them six months time for vacating the premises and handing over possession of the same to the petitioner. The petitioner shall have costs of the proceedings throughout.