JUDGMENT
P.K. Bahri, J.
(1) This appeal is directed against order of Rent Control Tribunal dated September 26, 1987 by which he confirmed the order of eviction passed by an Additional Rent Controller on. August 20, 1987 on the ground of eviction covered by clause (h) of proviso to Sub Section I of Section 14 of Delhi Rent Control Act by giving a finding that tenant has acquired a residential flat bearing No. 12, Vasant Vihar in the name of his wife, Asha Rastogi.
(2) The learned counsel for the appellant, in assailing the impugned order, has contended that onus was on the respondent/ landlord to prove that in fact the flat acquired by appellant’s wife is a benami transaction and the real owner is the appellant and in the present case, no such evidence has come on the record and even the two tribunals have not upheld the case of the landlord that the tenant had acquired the said flat benami in name of his wife and thus, the impugned order is vitiated on that score. He has also contended that mere acquisition of a residential flat by the tenant’s wife does not furnish any ground of eviction under the Delhi Rent Control Act. He has strongly placed reliance on a case decided by Single Bench of this Court in. case of Revti Devi Vs. Kishan Lal, (1) 1970 Rent Control Reporter 71 and also on the pronouncement by the Supreme Court in B. R. Mehta Vs. Atma Devi, (2) and has fried to distinguish the judgment given by the Supreme Court in case of Prem Chand Vs. Singh Singh, (3) 1981 Delhi Rent Judgments 287.
(3) The learned counsel for the respondent, on the other hand, has contended that ratio of the law laid down in the case of Prem Chand (supra) endorsed by Supreme Court in case of B. R. Mehta (supra) clearly applies to the facts of the present case even though the landlord has not been able to prove that the residential flat has been acquired benami in the name of the wife of the tenant. He has also placed reliance in a case decided by Since Bench of this Court in V. K. Malhotra Vs. Smt. Ranjit Kaur, (4) 1985 (1) R.C.J. 250 and a judgment of the Single Bench of the Gujarat High Court in the case of Hamukhlal Raichand Shah Vs. Arvindbhai Mohanlal Kapadia, (5) 1988 (2) K.C.J. 573.
(4) The amended definition of ‘tenant’ given in Section 2(1) of Delhi Rent Control Act makes the spouse, who has been ordinarily living in the premises with the tenant, as a tenant on death of the tenant. It is quite clear that if a statutory tenant dies, the tenancy is inheritable by his or her spouse in case the spouse has been living with the tenant at the time of his death. Before the amendment of this particular definition of ‘tenant’, a legal view was being reiterated by the Courts that on death of a statutory tenant, the tenancy is not inheritable. The ground of eviction covered by clause (h) lays down that in case the tenant has, whether before or after the commencement of the Act, acquired vacant possession of or been allotted a residence, he then becomes liable to eviction under the Delhi Rent Control Act.
(5) It is true that while interpreting the said Section, this Court in case of Revti Devi (supra) held that there is no law according to which the husband and the wife can be deemed to be one person and unity of the family may also require that a husband would always live with his wife, but this does not, however, mean in law that .the property of the wife belongs equally to the husband. In such a situation, mere fact that the wife has acquired another residence would not lead to inference that the husband had also acquired such a residence and mere occupation of a new residence by a tenant without any legal right in the same would not be covered by the said clause. It was also laid down that the fact that due to the affection between the husband and wife, the wife will not turn her husband out from the house is not a circumstance which can be taken into account in construing the legal language.
(6) In the case of Prem Chand (supra), however, a judgment given by three Hon’ble Judges of the Supreme Court, the tenant had suffered an eviction order on the ground of non-payment of rent covered by clause (a). During the pendency of the proceedings in Court, the tenant had been dispossessed. The matter came up before the Supreme Court in appeal. The Supreme Court had allowed the landlord to amend his eviction petition to plead the ground covered by clause (h) as it transpired that during the pendency of the proceedings, the tenant’s wife had acquired a residential flat. The explanation given by the tenant was that his wife has let out the said flat to the son. The Supreme Court, however, held that the tenant has through his wife acquired vacant possession of a residence and, thus, upheld the eviction of the tenant on the said ground. There was no finding given by the Supreme Court that tenant has acquired the flat benami in name of his wife. This judgment was followed by this Court in case of V. K. Malhotra (supra).
(7) In case of B. R. Mehta (supra), tenant’s wife was allotted a residential flat by the Government due to her being in employment as a teacher in a Government School. The wife had started living in the said flat alone. A plea was also taken in the said case that the relations between the husband and wife were not amicable as there was difference of opinion. The tenant wanted the wife to give up the job and concentrate on the upbringing of the children. The wife was not agreeing to this as she was wanting to pursue her own avocation and career. But later on she was induced to give up her job because the children had grown up and she came back to live with the husband in the premises tenanted by the husband. So, it was clear case that wife had acquired a separate residence in peculiar circumstances. The Supreme Court, while referring to the judgment given in case of Prem Chand (supra) held that the said case was based on its own facts. It held that it cannot be laid down as a general proposition of law that acquisition of a flat by the wife in all circumstances would amount to acquisition of flat by the tenant. The Supreme Court had referred to the judgment given by this Court in case of Revti Devi (supra) and held that this position has been properly highlighted by Delhi High Court in that case. The Supreme Court, further, laid down that in other words if for all practical and real sense the tenant acquired, built or was allotted another residence, then his need for the old tenanted residence goes and the tenant loses his right to retain his tenanted premises. A contention was raised on behalf of the tenant before the Supreme Court that no proper opportunity was given to the tenant to show that in fact the husband would not and did not have any right at all to come to the premises allotted to the wife which was taken because of the strained relation of the husband and wife regarding the career of the wife. and in such a house the husband will not come and he will certainly have no legal right or access for either staying or coming in the premises acquired by the wife. This contention was met by the opposite counsel by submitting that there was no evidence before the lower Courts about the existence of any strained relationship between the husband and wife. The Supreme Court observed as follows :- “WHAT is necessary is that unless there is a positive evidence, and here there is none, of acquisition of property prima facie in the name of the tenant or allotment of flat to the tenant, it cannot be said to have been acquired by or allotted to some members of the tenant’s family other than the wife in her name.. . . . If there is such an acquisition by or on behalf of the tenant then the tenant and members of the tenant’s family would have dominion over the said residence. Such acquisition would bring to the tenant the mischief of S.14(1)(h) of the Act. In the case of this nature the appellate Court had ample newer in our opinion to have been additional evidence.”
(8) In view of the peculiar facts of that case, the Supreme Court held that is wife of the tenant was allotted a temporary government accommodation. It cannot be said that there was admission by virtue of which the tenant could lose his tenancy that the wife has acquired a house which is available to the husband over which the husband has a domain which could be a substitute to the tenanted premises.
(9) The close analysis of this judgment given in case of B. R. Mehta (supra), which was a judgment given by two Hon’ble Judges; would show that ratio of law which can be culled from the judgment given in the case of Prem Chand (supra) a judgment given by three Hon’ble Judges, has not been in any manner whittled down. The legal position is now very clear that it is not that every acquisition of a residential accommodation by the wife would mean acquisition of a residence by the tenant, but it will depend upon the facts of each case in order to decide whether alternate residential accommodation has become available to the tenant over which the tenant and his family members have a domain.
(10) In case of Hamukhlal Raichand Shah (supra). The Gujarat High Court analysed the definition of ‘tenant’ which also makes statutory tenancy inheritable by a family member living A with the tenant on the death of the tenant and the learned judge, after considering and analysing the two judgments of the Supreme Court in the case of Prem Chand (supra) and B. R. Mehta (supra), and also of this Court in case of V. K. Malhotra (supra), observed that keeping in view the Hindu tradition and way of life a family comprising of husband, wife and children, who live together and mess together and look upon themselves as a unit, any acquisition of alternate residence by the tenant or his such family member would mean that said single unit of family has acquired alternate residence and thus liable to be evicted on a similar ground of eviction covered by Section 13(l)(g) of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 which clause is similarly worded as clause (h) of the Delhi Rent Control Act. In this judgment also, it was held that once the alternate residence has become available, mere fact that later on the said house is sold out or let out by the tenant or his family member, in whose name the alternate residence has been acquired, would not have the effect of wiping out the ground of eviction.
(11) As a matter of fact, same law was laid down by the Supreme Court in case of Mohini Badhwar Vs. Raghunandan Saran Ashok Saran. (6) . In E the said case. the tenant had acquired another residence, but before the filing of the eviction petition seeking the eviction on the ground covered by clause (h), the tenant had sold the said house. It was held that the ground of eviction once having become available is not obliterated by the act of the tenant in selling the alternate residence acquired by the tenant.
(12) In the present case, the undisputed facts are that the husband and wife are living and messing together and there is no plea that there has been ever any strained relations between the husband and wife. It is not the case set up that the wife had acquired the other residence for some specific purpose which would not be available as an alternate residence to the family and the family members including the husband would. not have a domain over the said house. The wife, admittedly, has been working as a teacher and was getting a salary of Rs. 1.000 with annual increments and she got herself registered in Self Financing Scheme of the D.D.A. in 1979. The total value of the flat in March 1981 was Rs. 1,67,000. The payment was made in Installments, i.e. Rs. 10,000 (Ex. R-21) in 1979, Rs. 30,932 (Ex. RX-4) in April 1981, Rs. 33,400 (Ex. RX-l) in October 1981, Rs. 41,750 (Ex. RX) in April 1982 and Rs 33,400 (Ex. RX-2) in October 1982 and Rs. 1,818 as interest (Ex. R-25) making a total of Rs. 1,50,300. The wife became a teacher only in 1978. If she would not have spent even a single penny out of her salary on household affairs or personal needs, she could have saved up to Rs. 40.000. The wife, appearing as witness RW-9. came up with a fantastic story that she had been given Rs. 1,00,000 (Rupees One Lac only) by her father and she kept the said amount in cash at her house and paid the amount to D.D.A. out of the said cash. The two Courts below rightly disbelieved this story set up by the wife. Some of the challans showing the aforesaid payments show that the bank drafts have been taken from the New Bank of India, Chittaranjan Park. Admittedly RW-10, husband/tenant of the demised premises, had an account in the said bank. The tenant had not cared to produce his bank pass book to show that no amount of money has gone in consideration of the said flat from his hank account.
(13) The story set up by the tenant in the written statement was that in 1984 the Dda had increased the price of the flat from Rs. 1,67,000 to Rs. 2,35,000 and the money was not available for paying the balance amount and in order to avoid forefeiture of the amount already paid to the Dda, the loans were arranged from the bank as well as from the friends which carried interest @ 18% per annum and the consideration of the flat was paid from the said amount procured as loans and per force the wife had to enter into on agreement to sell even before the flat became available to the wife for taking possession and in pursuance to that agreement, some documents like power of attorney, agreement for sale and a Will and receipt were executed and possession was also taken by the prospective vendee. So, it was pleaded that at no point of time the possession of the said flat became available to the family.
(14) It appears that Rs. 5,000 was taken as loan from Vaish Co-operative Bank and it was sought to be proved that Rs. 10.000 was taken as lean from Padam Garg. Rs. 25,000 from A. K. Mittal, Rs. 25,000 from Virender Singhla, Rs. 9.750 from Rajesh Kumar, Rs. 30,000 from Vimal Prakash, Rs. 18,000 from Rashmi Prasad, Rs. 5,000 from Ajit Prasad and Rs. 25,000 from J. p. Rastogi and documents RW1/1, RW3/1, RW4/1, RW5/1, RW6/1, RW8/2, RW8/2, RW8/3 and RW8/4 were produced. The loan transactions allegedly entered into with private persons A are sought to bs proved by proving the said documents which show that they had received back the loan amount. No loan document as such has been proved. None of the witnesses who allegedly had given loan had deposed that they had charged any interest. In absence of any documents showing the transaction of loans having been entered into, the two Courts below came to the conclusion that in fact these documents have been brought into existence only with a view to give support to the plea of the wife while no such loan transaction took place except a loan of petty amount of Rs. 5,000 from the Vaish Co-operative Bank.
(15) Moreover, it was the case of the tenant that necessity of taking loan from private persons arose because in 1984 the Dda had enhanced the price meaning thereby that all the other payments prior to taking of the loan had been made by the tenant or his wife from their own sources. So any evidence which is against the pleadings that loans were also taken for paying the initial amount prior to 1984 has to be looked with suspicion. A finding of fact has been arrived at after appraising the evidence by the two Courts below that these loan transactions, allegedly entered into between private parties and the wife, are fictitious and it is not shown that the said finding of fact is in any manner vitiated by any infirmity or illegality in appraising the evidence or has been arrived at in ignoring any material evidence. This Court in second appeal is not entitled to upset the said concurrent finding of fact. I have also appraised the evidence discussed above and come to the same conclusion.
(16) So from the evidence, it is evident that the said residential flat was acquired by the tenant in the name of his wife, may be the consideration which was paid to the Dda came not only from the savings of the wife, but also from the savings of the husband. Non-production of the bank account book or any accounts by the tenant leads the Court to draw adverse inference that if produced, the same would have depicted the correct picture as to the source of the consideration which was paid to the Dda for acquiring the said flat.
(17) The learned counsel for the landlord has brought to my notice Dda (Management & Disposal of Housing Estates) Regulation 1968 wherein Rule 15 clearly provides that the dwelling unit, which is to be allotted or sold by the Dda, is meant to be a building which is intended to be used by a family for habitation. Such a dwelling unit is allotted by the Dda only to such person if he or his wife or her husband or any of his/her dependants, relations including unmarried children does not own ill full or in part any other residential plot or house in urban area of Delhi, New Delhi and Delhi Cantonment. So, it is urged by the learned counsel for the landlord that a dwelling unit which is allotted by the Dda is given as a family house and once such a family house is made available to a particular member of the family, the other family members mentioned in the foresaid rules become ineligible for getting any other house. He has also pointed out that such flats which have been sold or allotted by the Dda are nor liable to be transferred within ten years and if any transaction had taken place between the wife and the prospective vendee, the same is not in consonance with the terms by which the said flat had been allotted to the tenant’s wife.
(18) It is quite clear that Dda would have handed over the possession only to the allottee and not to anyone else. AW-1, who came from the Dda with the official record, deposed that the vacant possession of the flat has been given to the tenant’s wife. Mere fact that the possession was not delivered in the presence of AW-I does not, in any manner, lead to any inference that the record which he had brought showing the delivery of the possession to Smt. Asha Rastogi, wife of the tenant, is to be disbelieved.
(19) The prospective vendee was examined by the tenant as a witness and she deposed that all documents which have been executed for transferring the flat to her have been taken away by her son who is based in America. It appears that the tenant has been delaying the recording of evidence. Twice the evidence was closed. The matter came up before the High Court and the High Court gave further opportunity to the tenant to lead evidence, but at no stage before the Additional Controller or before the Tribunal, the documents or copies of the documents showing the transaction of sale in favor of the prospective vendee were sought to be produced or proved.
(20) In this appeal, an application under Order 41 Rule 47 Cpc has been moved Along with photocopies of the documents with permission to produce and prove them on the record. The application is highly belated. The Court does not need those documents for deriding the controversy arising in this litigation. A Only one of the documents is stated to be registered which is a Wilt. No explanation has been given as to why a certified copy from the Sub-Registrar’s office could not be obtained and produced before the two Courts below.
(21) The Supreme Court in case of State of U.P. Vs. Manbodhan Lal, (7) , has laid down that it is well settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacuna in presenting its case at the initial stage and to fill in gaps. Of course, the position is different where the Appellate Court itself requires certain evidences to be adduced in order to enable it to do justice between the parties. It was held that the Supreme Court would not permit additional evidence to be produced in appeal when there was sufficient opportunity for the appellant to place all the relevant matter before the lower Court itself.
(22) The documents now sought to be proved also indicate that tenant’s wife was to deliver possession to the vendee. It would mean that tenant’s wife was to get the possession from the Dda and then hand over the said possession to the prospective vendee. So, the said evidence would not have advanced the ease of the tenant in any manner even if it had been allowed to be adduced. The fact remains that alternate residence became available to the family including the tenant and tenant would have had full domain over the said alternate residence and mere fact that later on the said house has become unavailable to the tenant or tenant’s wife would not have the effect of wiping out the ground of eviction which became available to the landlord.
(23) In view of the discussion above. I find no infirmity or illegality in the impugned order of the two Tribunals below. affirm their orders and dismiss the appeal. There will be no order as to costs.