Mrs. G.V. Shukla vs Shri Parbhu Ram Sukhram Dass Ojha

Mahajan, J.—The short question that arises for determination in this petition for revision u/s 35 of the Delhi and Ajmer Rent Control Act, 1952, relates to the interpretation of Section 13(1)(d) of the Act. Section 13(1)(d) is in these terms:-

13(1)(d) that the premises 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 institution of any suit or proceeding for recovery of possession;

So far as the facts of the case go, there is no dispute. Mrs. G.V. Shukla is the tenant of the premises and she went away to U. S. A. in April, 1957. She returned in June, 1958. During her absence, according to her testimony, she had put her uncle in possession of the premises to live therein and to look after her belongings. The present petition was filed by the landlord for the eviction of the tenant. Three grounds were initially urged for eviction, namely,-

i. non-payment of rent ;

ii. sub-letting ; and

iii. non-residence in the premises for a period of more than six months.

The first two grounds have been found by both the Courts below against the landlord. So far as the third ground it is concerned, is found in favour of the tenant by the trial Court, but on appeal, the decision of the trial Court qua it was reversed and it was held by the lower appellate Court that there was a clear breach of Section 13(1)(d) of the Act. It is against this decision that the present petition has been preferred.

The first contention advanced by the learned Counsel for the Petitioner is that the appeal before the lower appellate Court was barred by time, and, therefore, the appeal should have been dismissed on that short ground alone. However, in the lower appellate Court an application u/s 5 of the Indian Limitation Act was filed and the delay in filing the appeal was condoned by that Court. The reason why the appeal was filed but of limitation was stated to be that the copies were made after some delay because there was some defect in the application for copies and that defect was not pointed out by the Copying Agency to the Appellant and hence the delay in obtaining the copies. In a civil miscellaneous application in U. A. Basrukar v. Delhi Motor Company R. F. A. No. 78-D of 1953, in similar circumstances, a Division Bench of this Court has condoned the delay and following that decision I am of the view that the order of the lower appellate Court condoning the delay is in order.

On the merits the contention of the learned Counsel for the Petitioner is that the lady did not abandon the premises. She had animus revertendi and, therefore, it most be assumed that she was residing in the premises. It is further contended that the uncle whom she left in the premises being a member of the Petitioner''s family it cannot be said that she incurred forfeiture u/s 13(1)(d). The operative words in Section 13(1)(d) are "neither the tenant nor any member of his family has been residing therein for a period of six months".

So far as the first contention is concerned, it must be repelled on the short ground that there cannot be constructive residence, whereas there can be constructive occupation, and considerations as to animus revertendi have relevancy only where the requirement is as to occupation and not as to residence. Therefore, the decision in Wigley v. Leigh (1950) 1 A. E. R. 73, on which reliance has been placed has no application to the facts of the present case. The statute does not use the word ''occupation''. The word used is ''residing'' and ''reside'' according to the ordinary dictionary meaning is to dwell or to live in. As I have already said, one cannot constructively reside in a premises. The requirement is that there has to be actual residence.

So far as the second contention is concerned, namely, that the uncle is a member of the family, reliance has been placed on Jones v. Whitehill (1950) 1 A. E. R. 71 and Ram Pershad Singh Vs. Mukand Lal, The facts of both the cases are quite different. In Jone''s case, the niece was living with the tenant long before the tenant became a statutory tenant and was looking after the tenant and his wife and in the circumstances it was observed that she must be treated as a member of the family. In Ram Pershad Singh Vs. Mukand Lal, the nephews were held to be members of the family because they were brought up by the uncle and the uncle had educated and married them, and that he had all along been treating them, as members of his family. Both these cases have no analogy to the facts of the present case. As a matter of fact the uncle has not appeared in the witness-box and there is no evidence that this uncle was ever living with the tenant before she left for U S. A. or started living with her after she came back from U. S. A. She admitted that the uncle is living in Delhi. The lower appellate Court came to the conclusion that the Petitioner had failed to establish that either the Defendant or any member of her family has been residing in the house in dispute for a period of six months. It obviously implies that the Petitioner''s statement that the uncle was living in the premises has not been accepted and so also that the uncle was member of her family. As observed in Price v. Gould, 143 L. T. 333 "the word ''Family'' is a popular, loose and flexible expression, and not a technical term It has been laid down that the primary meaning of the word ''family'' is children, but that primary meaning is clearly susceptible of wider interpretation, because the cases decide that the exact scope of the word must depend on the context and the other provisions of the will or deed in view of the surrounding circumstances". Therefore, it must be held that the word ''family'' is capable of wider interpretation, but that interpretation must have relation to the existing facts and circumstances proved on the record in each case. A remote relation may, in a given set of circumstances, be treated as a member of the family, whereas in another set of circumstances the same relation may not be legitimately called as a member of the family. In this situation it was necessary for the Petitioner to examine her uncle particularly when he is in Delhi and the indication is that he has his separate residence in Delhi. It appears that he was not examined because he would not have supported the Petitioner, for he could not be residing simultaneously both at his own residence and at that of the Petitioner. Moreover, it also seems that he would not have supported the Petitioner''s claim that he is a member of her family. In the absence of his evidence it cannot be said that the learned lower appellate Court has come to a legally wrong decision. There being no error of law, this petition must therefore fail. I accordingly dismiss this petition for revision.

However, I allow three months'' time to the tenant to vacate the premises.

There will be no order as to costs in this Court.