JUDGMENT
P.K. Bahri, J.
(1) This civil revision has been brought under Section 25-B(8) of the Delhi Rent Control Act (for short ‘the Act’) challenging the eviction order dated April 21, 1986, passed by Shri G.D. Dhanuka, Additional Rent Controller, Delhi on the ground of eviction covered by clause (e) of sub-section (1) of Section 14 of the Act.
(2) The learned counsel for the petitioner has challenged the impugned order in arguments only on two points; firstly, that the legal heirs of deceased tenant Bhagwan Dass were not sought to be imp leaded as respondents in the eviction petition pending before the Additional Rent Controller, hence, the eviction petition should be deemed to have abated; secondly that is has not been proved from the evidence brought on the record by the respondent that the premises in question had been let out only for residential purposes. Counsel for the petitioners was frank enough not to challenge the findings of the Additional Rent Controller with regard to the respondent being owner of the premises in question and the respondent being not in possession of any reasonably suitable accommodation and his bonafide requirement for the premises in question for occupation as residence for himself and his family members dependent upon him for the purposes of residence.
(3) Now taking up the first point, it is clear from the record that the eviction petition was filed against Bhagwan Dass in May 1981 and Bhagwan Dass had filed an application seeking leave to appear and defend the eviction petition but the Additional Rent Controller had dismissed the said application and bad passed the eviction order treating the facts slated in the eviction petition as correct. Bhagwan Dass had filed civil revision in the High Court seeking selling aside of the aforesaid order. During the pendency of the civil revision in the High Court, Bhagwan Dass admittedly had died and his legal heirs were substituted as petitioners in the civil revision in place of Bhagwan Dass and ultimately vide order dated July 16, 1984,YogeshwarDayal,J.(as His Lordship then was) allowed the Civil Revision No. 211/82 and granted the leave to defend to the legal heirs of Bhagwan Dass and gave the directions to the parties to appear before the trial Court on August 6, 1984, on which date written statement shall be filed. It is true that one of the points raised before the High Court was whether all or any of the legal heirs of Bhagwan Dass sought to be brought on record could be termed as legal heirs for the purposes of amended definition of ‘tenant’ given in the Act. This question was left open for decision by the High Court with the observations, that in view of the objections raised by the respondent landlord and the counsel for the petitioner, the heirs mentioned in the application are brought on record for purposes of this revision petition only and not for the purposes of ejectment application, and the question as to who are the legal heirs for the purposes of ejectment application will be decided by the trial Court. This particular observation of the High Court does not mean that the legal heirs already substituted, if not objected to in the proceedings before the Additional Rent Controller, could not participate in the proceedings or any new order was required to be made by the Additional Rent Controller for bringing the said legal heirs on-record for the purposes of deciding the eviction petition. The aforesaid observations were made by the Court for the benefit of the landlord because if landlord was to agitate the plea that none of the or some of the legal heirs of Bhagwan Dass tenant were not covered by the definition of “tenant” given in the Act and thus were not entitled to be allowed to contest the eviction petition, the High Court left the question open for decision of the Additional Rent Controller if such a point was to be raised by the landlord. It does not mean that if landlord was not to raise any such plea before the Additional Rent Controller even then the landlord was legally bound to bring an application before the Additional Rent Controller for substituting the legal heirs as respondents in the eviction petition when they have been already substituted in the revision petition. The legal position in respect of substitution of legal heirs in the appeal or in the revision is quite clear that once the legal heirs have been substituted in the appellate court or in revisional court, there is no necessity of bringing any application before the trial Court for substituting the legal heirs in the proceedings and the proceedings do not abate for omission to make any such application.
(4) In Radhaballav Choubey & others v. Mahadev Choubey & others, , it has been observed that when there is a substitution in a pending appeal in the High Court and the matter is remanded to the court below, on remand, the court itself has to see that the names of those, who are dead, should be removed from the record and those, who are already substituted in the High Court should be brought on the record. Similar was the view taken in Hema Dibya v. Amarendra Kishore Das and others, . In this case. a plaintiff’s suit was dismissed in default and an application was moved for restoration of the suit which was also dismissed. An appeal was filed and during the pendency of the appeal, the plaintiff appellant had died and his legal representatives were substituted and the appeal was allowed and the suit was restored and the matter was remanded to the court for deciding it on merits. It was held that it was unnecessary that the legal representatives should have been again substituted in the suit. In Panna Lal Agrawala v. Kanhaiya Lal Jain & others, and Harbans Lal v. Ved Parkash, , same principle was reiterated. The aforesaid judgments follow the law laid down by the Supreme Court in Rangubai Kom Sankar Jagtap v. Sunderabai Bhratar Sakharam Jedhe & others, . In this case the Supreme Court has clearly laid down that if the legal representatives are brought on record within the prescribed time at one stage of the suit, it will ensure for the benefit of all the subsequent stages of the suit. So, in Kanailal Dholey and others v. Kalicharan Chatterjee and others, , it was laid down that if plea of abatement is not raised in the Lower Court, then such a plea could not be allowed to be raised in appeal when no prejudice is shown to have been caused by failure to bring the legal representatives of the deceased on record in a formal manner. In the present case, legal heirs of the deceased-tenant had filed the written statement and had contested the eviction petition on merits and after full trial the case was decided and in no manner these legal heirs have been prejudiced by inability of the Additional Rent Controller to make any formal order substituting them in place of deceased tenant.
(5) At the time of admission’of this civil revision Sultan Singh, .L, had made reference to Union of India v. Ram Charan (deceased) through his L.Rs, . I have gone through that judgment and find that the same is completely distinguishable. In the said judgment, the Supreme Court bad only laid down well-known principle of law that if suit had abated, then there is no reason for the court to invoke any inherent powers under Section 151 of the Code of Civil Procedure for the purpose of impleading the legal representatives of the deceased. It was pointed out that the abatement could be set aside only on the grounds mentioned in Order Xxii Rule 9 of the Code of Civil Procedure. However in the present case, eviction petition cannot be deemed to be abated in view of the ratio of law laid down by the Supreme Court in Rangubai (supra). No judgment has been cited by the learned counsel for the petitioner taking any different view. Hence, I hold that there is no merit in this contention of the learned counsel for the petitioners that eviction petition should be deemed to have abated.
(6) It has been vehemently argued by the learned counsel for the petitioner that the Additional Rent Controller has completely gone wrong in returning the finding with regard to the letting purpose. He has committed a grave illegality in determining the question of letting purpose by placing the onus on the petitioners that the letting purpose was for composite purposes. So, he has argued that the findings of the Additional Rent Controller being perverse should be set aside by this Court. It is settled law that this Court in exercising its power of revision as conferred be Section 25-B(8) of the Act can set aside a finding of fact given by the Controller if it is shown that the findings is based on illegal principles of law or has been based on no evidence or has been arrived at ignoring important evidence existing on the record because in such a case such a finding would be a perverse finding. It is also true that in order to get eviction of the tenant on the ground of bonafide requirement for residence, one of the all important ingredients to be proved by the landlord is that the premises in question have been let out to the tenant for residential purposes only. The onus to prove this ingredient is always heavy on the landlord. It is also settled that if there is clear evidence available in any shape showing the letting purpose then that evidence must be given its due importance. But where there is no document of letting executed between the parties or there is no direct evidence of letting available, then the letting purpose has to be determined keeping in view the nature of the demised premises, the locality where the premises are situate and the dominant user for which the premises let out have been used since the very inception of the tenancy.
(7) Now coming to the facts in the present case, the letting took place admittedly 40 years or so prior to the filing of the eviction petition. It has also come out in evidence that one Har Gopal Mathur was the owner of this property and presumably he had inducted Bhagwan Dass as tenant in the premises in question. He had sold this property to Champa Devi and Manohar Lal and said Champa Devi and Manohar Lal had sold the property to Ram Chander and the respondent has inherited the premises in question on the basis of the will executed by his father Ram Chander. Either of the parties has not produced the original owner of the property who had inducted Bhagwan Dass as tenant. Bhagwan Dass had died before the evidence was taken in this case. So the two persons who were the parties to the contract of tenancy initially, who could be the best persons to know about the letting purpose of the premises in question, could not depose about the fact for obvious reasons. Before I appraise the evidence led before the Additional Rent Controller with regard to the letting purpose, I must refer to the initial plea taken by Bhagwan Dass in his affidavit and the application filed seeking leave to defend the eviction case. In the eviction petition it has been averred clearly by the respondent that the prem.ses in question comprising of one kotha, one room, one kitchen, one tin shed and a courtyard on the first floor, shown in red colour in the site plan filed Along with the eviction petition, with common use of latrine on the ground floor stood let out to Bhagwan Dass for residential purposes only. In the application dated May 29, 1981 and the affidavit of the same date, Bhagwan Dass did not at all controvert this particular plea that the premises had been let out for residential purposes only. The only plea taken by him was that he had been using the premises in question for residential-cum-commercial purposes. There is a lot of difference between the pleas as to the letting purpose and the user of the premises. So, there was an implied admission in the affidavit of Bhagwan Dass that the premises had been initially let out for residential purposes only. With regard to his plea that the premises bad been used for residential-cum-commercial purposes, the question assumes importance in a different manner ; whether such user could lead to any legal or factual inference that letting purpose had at any time changed ? No plea was taken by Bhagwan Dass that the letting purpose had at any time changed with the consent of any of the landlords. It is true that before the filing of the eviction petition the landlord-respondent had served a notice of eviction, copy of which being Ex. AW3/1 and reply was received on behalf of Bhagwan Dass, the same being Ex. AW3/4. in which plea was taken by Bhagwan Dass that the premises had been let out for residential-cum-commercial purposes. But after the eviction petition was filed and necessary summons were served on Bhagwan Dass, he in his application and the affidavit aforesaid did not take this plea meaning thereby that Bhagwan Dass did not want to take any plea which may be shown to be false in evidence later on. He was not perhaps keen to give wrong or false fact in his sworn affidavit. But after Bhagwan Dass had died, the petitioners filed the written statement taking this plea that in fact, premises had been let out initially for composite purposes. I am afraid that this plea was beyond the pleas taken in the leave to defend application and the affidavit of Bhagwan Dass and could not be given any importance.
(8) It is, indeed, not disputed that Bhagwan Dass with his wife and two sons and two daughter-! lived in the demised premises. It is true that about 40 years ago when be took the premises on rent, he and his wife initially might be residing in the said premises and children might have been born later on. The accomodation in question is not big one. No case was set up that any portion of the demised premises was exclusively used for any particular commercial activity by Bhagwan Dass, rather Bhagwan Dass, in his affidavit had mentioned in para 8 that it was the landlord-respondent who had threatened him that Bhagwan Dass using the premises for residential-cum-commercial purposes inasmuch as Bhagwan Dass was carrying on the business of repairs of watches and clocks in the said premises. Bhagwan Dass himself did not categorically make any averment in the affidavit that he was using any particular portion of the demised premises exclusively for any commercial activity. The respondent-landlord has brought on record Ex. AW2 1, a copy of the entries from the house-tax record, which show that the portion in possession of Bhagwan Dass was residential and so also all other portions in that house and he also proved on record counterfoils of rent receipts Exs.AW3/12 toAW3/16 issued by his father to Bhagwan Dass which also bear signatures of Bhagwan Dass and they show that the premises let out to Bhagwan Dass are residential. In his cross-examination, Mark ‘A’ and Ex. D rent receipts were brought on record which did not indicate the nature of the premises but no rent receipts, to which the counterfoils Ex. AW3/12 to AW3/16 partained, were brought on record by the petitioners to show that entry in the counterfoils showing the nature of the demised premises as residential was incorrect. Apart from the aforesaid documentary evidence, the respondent coming as bids own witness as AW3 made a categorical statement that Bhagwan Dass was employed in a printing press in Faridabad. No suggestion in crossexamination was given that in fact, Bhagwan Dass was never employed in any printing press at Faridabad at any time. It may be that the respondent did not know the name of the printing press or the exact address of the said printing press where Bhagwan Dass employed but the fact remains that his testimony in this regard remained unchallenged. Even AW4 Hari 0m had made a statement that according to his opinion, Bhagwan Dass was employed in a press. No suggestion was even given to him that Bhagwan Dass was never employed in any printing press at any time. RW1, one of the petitioners, appeared in the witness box and he also did not make any categorical statement on oath that his father was never employed in any printing press. RW2 Ram Pratap who admitted that he was relation of Bhagwan Dass also did not slate on oath that Bhagwan Dass was not employed in any printing press, rather he expressed ignorance as to whether Bhagwan Dass was employed in any printing press or not. If Bhagwan Dass had not been employed in printing press this witness, who claimed to be not only a relation of Bhagwan Dass but was also having some contact with Bhagwan Dass regarding repair of watches, would not have made such an evasive statement. RW3 Champa Devi also could not deny the suggestion categorically as to whether Bhagwan Dass was employed in any printing press or not. She only deposed that she had never objected to Bhagwan Dass carrying on repair of certain watches in the premises in question She deposed that the previous owner, whom she named as Shri Saxena wrongly, had told her that he had let out the premises for composite purposes to Bhagwan Dass but this testimony of Champa Devi does not appear to be correct because she could not deny the suggestion that she had been issuing rent receipts and preserving counterfoils thereof but she could not say as to what letting purpose had been mentioned therein. She made a statement that she had destroyed the counterfoil rent receipts. However, the fact remains that even according to her testimony, the premises let out to Bhagwan Dass were being used for residential purposes as long as she was the owner although, according to her, Bhagwan Dass also carried on repair of watches in the premises. She did not say that any specific portion of the premises bad been used by Bhagwan Dass exclusively for purposes of repairing the watches. Rent receipt issued by her would have been the best evidence to show whether she consented to premises being used for commercial purposes. With-holding of rent receipts by the petitioners leads one to draw an adverse inference that if produced the same would have shown the letting purpose as residential only. So, her testimony has been rightly disbelieved by the Addl. Rent Controller that the previous owner told her that premises stand let out for composite purpose or she gave any consent for commercial user. Even the testimonies of RW1 & RW2 do not show that any particular portion of the premises in question had been at any time earmarked for any commercial activity either by Bhagwan Dass Or by his legal representatives. So, the dominant user of the demised premises admittedly was residential at all relevant times. If Bhagwan Dass was bringing certain watches from some shopkeepers and was repairing them and then handing back those watchers to shopkeepers, it does not mean that he was using the premises predominantly for any commercial activity. It is not the case that any customers were visiting the premises in question for getting their watches repaired from Bhagwan Dass. Counsel for the petitioners has argued that there was no plea taken by the landlord in the petition or in the replication that Bhagwan Dass was employed in a printing press. So, any evidence led on that fact should be not given any importance. I do not agree. After all the landlord was only to prove from evidence that the premises had been let out for residential purposes. He was not to plead in the pleadings as to the avocation of Bhagwan Dass because that was subject matter of evidence. From the evidence it is apparent that the petitioners, legal heirs of Bhagwan Dass, had not cared to rebut the testimony of the respondent that Bhagwan Dass employed in a printing press.
(9) So, examined from all angles, keeping in view the initial pleas taken by Bhagwan Dass in the eviction case. an irresistible conclusion can be reached that the premises bad been let out for residential premises only when it is clearly shown that house where the premises are located is residential nature and is located in residential locality and the premises in question had been used predominantly for residential purposes. Hence, I come to the conclusion that the finding of the Additional Rent Controller with regard to the letting purpose is not illegal even though the Additional Rent Controller approached ihe question by wrongly placing onus on the petitioners (legal heirs of the tenant). I, hence, negative this contention of the learned counsel for the petitioners as well. No other point has been urged before me.
(10) I find no merit in this civil revision which I, hereby, dismiss. But in view of the peculiar facts of the case, I leave the parties to bear their own costs and I also grant one month’s time to the petitioner for vacating the premises.