Monday, 5 November 2018

Whether court can pass eviction decree on ground of non user even if tenant has no intention to shift his residence?

The contention of Learned Counsel for the Petitioner is that the burden of proof has been wrongly placed on the Petitioner/Landlord. It has, however been recognised in the impugned judgment itself that in cases of the present genere, it is the tenant who can best discharge the burden of proving that he/she had not resided in the demised premises for a period of over six months immediately preceding the filing of the Petition. However, residency inherently implies permanency. Before a finding can be returned to the effect that a tenant has not resided in the demised premises for the said period of six months, the Court must be fully satisfied that there was an intention to shift the residence to an alternative place. For instance, a tenant may be transferred to another city and as a consequence it may become necessary for him to be away from the demised premises for even six months. The grounds of eviction would be made out. Could the tenant defeat the purpose of the legislation by making a short stay, in between this period, I would think that it would be a futile exercise, and he would not succeed in sewing himself from eviction. For the same reason, if there is no intention to reside at another place for this period, if this incidentally transpires for circumstances beyond the control of the Tenant, in my view he would not be liable to eviction. In the present instance, it appears to be the common case that the Respondent had left India with the purpose of visiting her children. There is no evidence that she had the intention of shifting residence for a period of over six months. As it happened, she appears to have returned to within three months. The Court must be alive fact that it is conceivable that the tenant leaves the residence with the intention of staying out for a couple of months, and for reasons beyond their control, staying out for a period of over six months. The burden of giving an acceptable Explanation would rest with the Tenant. In such case, there is no intention not to reside in the said premises within this period. In my view, Therefore, the initial burden would be on the Petitioner not only to state that there has been an absence of the tenant from the demised premises for a period of six month but also that this absence was fully intended. Only once the initial burden of proof is discharged by the Landlord does it shift to the Tenant. Learned Counsel has relied on the decision of Sushil Chander Gupta Vs. Radha Krishan Bathisa, 1981 (1) All IRCJ 711. I am in respectful agreement with the extracted view expressed therein which reads as follows

The question of residence or non-residence is not a question of presumption. It is question of fact. It is not a question of inference but of positive proof. The landlord cannot prove the negative except by his statement. The tenant is required to prove the positive. The burden at once shift to him to show that he was residing during the period in question.

IN THE HIGH COURT OF DELHI

C.M.(M) No. 576 of 1998

Decided On: 13.12.2000

Ranjit Singh Vs. Inez Richards

Hon'ble Judges/Coram:
Vikramajit Sen, J.

Citation: 2001(2) RCR 716


1. This Petition has been filed under Article 227 of the Constitution of India. There is a concurrent finding against the Landlord/Petitioner by the Rent Controller as fell as by the Rent Controller as well as by the Rent Control Tribunal in respect of the claim for eviction under Section 14 of the Delhi Rent Control Act which reads as follows:

"14(1)d): that the premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application for the recovery of possession thereof."
2. The averments before the Rent Controller are that the Respondents locked up the suit premises on 29.6.1992 and went abroad and that she had not come back till the filing of the Petition on 4.1.1993. It has been further averred that the Respondent was living alone in the suit premises as her husband has died and her children was settled abroad even prior to the letting. In my opinion, these averments are vital to the case. The defense of the Tenant/Respondent is that she frequently goes abroad. In respect of the period mentioned she has admitted that she had left for Abu Dhabi on 28.6.1992 and returned to Delhi in the first week of October, 1992. After staying for 2-3 days, she left for Lucknow and she returned in the end of November, 1992. In her Statement, she has proved the Report which had been lodged by her with the Assistant Commissioner of Police. She has also produced Smt. Alised, who has, inter alia, deposed that the Respondent visited her on 3.10.1992 and that she left for Lucknow on 5.10.1992 and returned in the end of November, 1992. This testimony has not even been challenged by way of cross-examination. The Respondent/Tenant has also produced a witness from the MTNL to show that she has visited the said office in connection with the malfunctioning of her telephone.

3. Learned Counsel appearing for the Petitioner has strongly urged that the reasons which had apparently weighed in minds of the Rent Controller and the Rent Tribunal are not significant enough to warrant the dismissal of the eviction petition. In his submission, too much importance has been given to the witness from the MTNL.

4. In proceedings under Article 227 of he Constitution , it is wholly inappropriate for the High Court to sit as a Court of appeal. In D.C. Works Vs . State of Saurashtra, MANU/SC/0071/1956 : (1957)ILLJ477SC , it has been laid down that this power cannot be exercised to substitute the judgment of the lower Courts with that of the High Court either on the question of fact or law. In order to justify the exercise of jurisdiction under Article 227,the High Court must be strongly convinced that the decision of the Lower Courts is perverse or discloses an error of law apparent on the face of the record. The contention of Learned Counsel for the Petitioner is that the burden of proof has been wrongly placed on the Petitioner/Landlord. It has, however been recognised in the impugned judgment itself that in cases of the present genere, it is the tenant who can best discharge the burden of proving that he/she had not resided in the demised premises for a period of over six months immediately preceding the filing of the Petition. However, residency inherently implies permanency. Before a finding can be returned to the effect that a tenant has not resided in the demised premises for the said period of six months, the Court must be fully satisfied that there was an intention to shift the residence to an alternative place. For instance, a tenant may be transferred to another city and as a consequence it may become necessary for him to be away from the demised premises for even six months. The grounds of eviction would be made out. Could the tenant defeat the purpose of the legislation by making a short stay, in between this period, I would think that it would be a futile exercise, and he would not succeed in sewing himself from eviction. For the same reason, if there is no intention to reside at another place for this period, if this incidentally transpires for circumstances beyond the control of the Tenant, in my view he would not be liable to eviction. In the present instance, it appears to be the common case that the Respondent had left India with the purpose of visiting her children. There is no evidence that she had the intention of shifting residence for a period of over six months. As it happened, she appears to have returned to within three months. The Court must be alive fact that it is conceivable that the tenant leaves the residence with the intention of staying out for a couple of months, and for reasons beyond their control, staying out for a period of over six months. The burden of giving an acceptable Explanation would rest with the Tenant. In such case, there is no intention not to reside in the said premises within this period. In my view, Therefore, the initial burden would be on the Petitioner not only to state that there has been an absence of the tenant from the demised premises for a period of six month but also that this absence was fully intended. Only once the initial burden of proof is discharged by the Landlord does it shift to the Tenant. Learned Counsel has relied on the decision of Sushil Chander Gupta Vs. Radha Krishan Bathisa, 1981 (1) All IRCJ 711. I am in respectful agreement with the extracted view expressed therein which reads as follows

The question of residence or non-residence is not a question of presumption. It is question of fact. It is not a question of inference but of positive proof. The landlord cannot prove the negative except by his statement. The tenant is required to prove the positive. The burden at once shift to him to show that he was residing during the period in question.
5. There is a concurrent finding of facts in favor of the tenant which the High Court must be extremely slow in interfering with. There must exist overwhelmingly reasons to exercise jurisdiction under Article 227 of the Constitution to upset such findings. In the present case, although I agree with the submission of Learned Counsel for the Petitioner/Landlord that too much emphasis ought not to be placed on the Respondent's alleged visit to the office of the MTNL, the fact is that she had returned to the demised premises in October and, thereafter, in December which statement have rumination challenged. It is quite likely that these facts have prevailed on the Rent Controller as well as on the Rent Tribunal of dismissing the Petition. Furthermore, it is quite plausible that neither of them were convinced that the Respondent had left the demised premises with the intention of shifting her residence for the statutory period. In my view this is essential and an absence from the premises for a period of six months, parse, would not be sufficient ground for passing an eviction order under Section 14(1)(d), if the tenant succeeds in convincing the Court that he never planned or needed to be away for this period and was helpless in returning home with the said time.

6. For all these manifold reasons, the Petition is dismissed. As there was no representation on behalf of the respondent there shall be no order as to costs.



Print Page

No comments:

Post a comment