Delhi High Court
Roshan Lal vs Madan Mohan Lal Sharma on 24 April, 1998
Author: Manmohan Sarin
Bench: Manmohan Sarin
ORDER Manmohan Sarin, J.
1. The petitioner/tenant Roshan Lal, has filed this Revision Petition under section 25-B(8) of the Delhi Rent Control Act (hereinafter referred to as 'the Act') is aggrieved by order of eviction, passed by the learned Additional Rent Controller on the ground of bonafide need under section 14(1)(e) of the Act.
2. The respondent-landlord had filed an eviction petition bearing No.E-131/89 in April, 1989, seeking eviction of the petitioner tenant from the ground floor of House No.24, Vivekanand Puri, Delhi-100057, let out to the petitioner-tenant at Rs.800/- per month excluding the electricity and water charges.
3. The respondent, who is around 81 years of age, retired from service from Delhi Cloth and General Mills Ltd.. While in service, he had been allotted quarter No.98, Old Banglow, Kishan Ganj, Delhi. The respondent-landlord's family members comprise, Landlord (aged 81 years), his wife (aged 74 years), elder son and his wife and two daughters presently around 15 and 17 years, the second son of the Landlord and his wife and two daughters aged 13 & 17 years. In addition, the respondent's grand daughter (daughter's daughter) was living with the respondent-landlord at the time of filing of the petition, she has left after her marriage.
4. The respondent-landlord's case is that he has available with him only the first floor of the house bearing No.24, Vivekanand Puri, comprising two bed rooms, drawing-dining room and a Store. This was totally insufficient for his and his family's needs. The family comprised at that time six adults and 5 children. The respondent's elder son is also employed with DCM as an Accounts Officer. The second son of the respondent is an officer with the State Bank of India, the daughter in law, i.e. wife of the second son, is working with MCD as a Teacher. Respondent says that since there was a dispute with regard to his dues with DCM, he did not vacate but had continued to occupy Quarter No.98, Old Bungalow Kishan Ganj, allotted to him. The respondent claimed that the accommodation with him was totally insufficient and he required the premises in suit let out to the petitioner. The respondent also claimed that because of health reasons and his age, he required the ground floor.
5. Leave to defend was granted to the petitioner-tenant. After completion of pleadings, the case has witnessed amendment of written statement to bring on record subsequent events. The impugned order of eviction was passed after trial.
6. The Petitioner assails the impugned order claiming that respondent's second son was totally independent and not dependent upon the respondent for residence. He was earlier posted in Lucknow and has been transferred to Delhi. He has been allotted a Flat by his employer being Flat No.26, State Bank of India Colony, East of Kailash, New Delhi and he has been residing there with his family. The requirement of the son (Shri K.K. Sharma) who is independent and in possession of accommodation given by the Bank cannot be included in the requirement of Respondent. It has also been argued that Flat No.98, Old Banglow, Kishan Ganj, which was originally allotted to the respondent has now been allotted to the elder son, Shri Prem Sharma, who is working with the DCM. The respondent-landlord accordingly is possessed of alternative suitable accommodation in quarter No.98, Old Banglow, Kishan Ganj. The respondent it is claimed has deliberately concealed the availability of this additional accommodation to his sons and the family.
7. The petitioner also urges that Rupali Sharma, the grand daughter of the respondent has since been married and her requirement cannot be considered, once the factum of her marriage was on record. It is also claimed that the elder son of the petitioner Arun Sharma has been allotted and owns a Flat in Kamdhenu Housing Society. It is also urged that the respondent failed to produce his elder son Arun Sharma in the witness box, to avoid being confronted and cross-examined with regard to availability of the accommodation at 98, Old Banglow, Kishan Ganj. This should be fatal to the respondent's case. Lastly it is urged that the respondent is not short of accommodation and has let out two rooms on the second floor to M/s. Basera Colonizers Pvt. Ltd. and who have their registered office at the address 24, Vivekanand Puri. The said premises are stated to be let out on rental of Rs.2,000/- per month with Security Deposit of Rs.25,000/-. The respondent is also stated to have constructed two additional rooms on the 2nd floor. It is urged that the respondent is in possession of the first and 2nd floor at 24, Vivekanand Puri as well as 98, Old Banglow, Kishan Ganj, apart from Flat No.26, State Bank of India Colony, East of Kailash, where the second son of the petitioner resides.
8. Learned counsel Mr. Malhotra submitted that the renting out of the two rooms on the second floor to M/s. Basera Colonizers Pvt. Ltd., showed that the respondent-tenant does not bonafide require the premises in suit for his residence or that of his sons and their families. Learned counsel also argued that the petitioner-tenant had proved on record through Registrar of Companies that the address of Registered Office of the company M/s. Basera Colonizers Pvt. Ltd. is that of the Second floor of premises in suit. The respondent-tenant despite this knowledge failed to take any steps to have the same rectified in the records of the Registrar of Companies. As regards the respondent's claim that possession of Flat No.98, Old Banglow Kishan Ganj, has already been surrendered by him on the basis of a letter of the Estate Officer, counsel submits that no weight could be attached to such a letter, which was not proved in accordance with law.
9. Having heard the learned counsel for the petitioner as well as the learned counsel for the respondent Mr. Chhabra in reply and perused the material on record, I find that there is no merit in the submissions of the petitioner. The respondent landlord succeeds in making out a case of requiring the premises in suit bonafide for his residence and for all the family members dependent upon him as rightly held by the Learned Additional Rent Controller.
10. Regarding the allotment of an SBI flat to Shri Karan Kumar Sharma, the second son of the respondent, it is admitted position that the said son was posted in Lucknow and came back to Delhi on 1.12.1988. It has come in evidence that the wife and children of Shri Karan Kumar Sharma, did not accompany him to Lucknow, when he was posted there but remained and stayed with the respondent-landlord in premises in suit. However, it is admitted by the respondent that since April, 1992, the said son has been residing in the SBI Flat. Being on a transferable job, he is liable to be transferred at any time out side Delhi, having completed his tenure, and being in Delhi since 1992. The wife of the said son who is employed as a Teacher in MCD would, therefore, have to reside with the respondent with her children. Thus the requirement for the said son's family cannot be excluded as in the event of his being transferred out, the SBI flat allotted would also not be available for residence to the said son or his family members, who perforce would reside with the respondent. There is merit in this contention. The case of the respondent, which I find deserves acceptance, is that even if the requirement of the second son and his family is excluded, the premises in suit would still be bonafide required by the respondent for residence, since accommodation in possession of the respondent is insufficient.
11. Learned counsel for the petitioner placed reliance on the following authorities:
(i) Amarjit Singh Vs. Khatoon (1987 (1) RCR 192.
(ii) Kirpa Ram Vs. Champa Devi (1987 (2) RCR 43).
(iii) Vipin Kumar Vs. Bishan Dass (1987 (2) RCR 43).
These authorities, in the present facts and circumstances, are not applicable and do not advance the case of the petitioner.
12. It is the admitted case of parties that the accommodation on the ground floor of 24 Vivekanand Puri and the first floor above is the same. This would leave the respondent-landlord with two bed rooms a drawing-dining room, Kitchen and a Store and the Bath Room and Latrine on the first floor. The respondent's case is that accommodation on the 2nd Floor is purely a make shift arrangement. The rooms have roof of Asbestos sheets and are not habitable or usable as residence. The WC and toilet on the second floor is that of a Tin Shed. There is no kitchen on the second floor and the accommodation therein is not usable for living. The respondent has denied on oath that the second floor was let out to Bassera Colonizer Pvt. Ltd. In fact, the said accommodation, i.e., first floor and roof including Tin Shed premises are in his possession. The respondent has denied the letting out to the Bassera Colonizer Pvt. Ltd. Even the Draftsman, who had been appointed by the Court, to draw out a plan had reported, that the second floor rooms had Asbestos roof. He did not find any company functioning from there. The plea of the petitioner is based simply on records of the Registrar of Companies, showing the registered office at the address of the second floor. This cannot be made the basis for a finding that the premises are let out to the said company.
13. As regards the accommodation at 98, Old Banglow, Kishan Ganj, learned counsel for the respondent submitted that the respondent surrendered possession thereof which fact is clear from a letter of the Estate Officer. Not only this learned counsel for the respondent makes a statement at the Bar, that the said premises in fact today stands demolished and have been razed to the ground, pending construction of the commercial complex by DCM. Hence, there is no question of the said accommodation being available to the respondent. As regards the allegation of allotment of a flat in Kamdhenu Society to the elder son, Mr. Arun Sharma, the same has been categorically denied by the respondent/landlord. Petitioner has failed to furnish any particulars of the said flat or to summon any evidence from the Society with regard to the allotment of any flat to Mr. Arun Sharma. This finding of fact is, therefore, not assailable in revision. However, based on the material on record I am satisfied that even if the requirement of the second son and his family are excluded the respondent-landlord makes out a case for bonafide requirement in respect of premises in suit. The respondent's family admittedly even then would comprise the respondent, his wife, who are both old, the respondent's elder son and two daughters who are grown up daughters. The total accommodation available with the Respondent on the First floor is two bed rooms and drawing-cum-dining room and a store. The accommodation on the second floor has Asbestos Sheets and according to the respondent, the rooms do not even have doors. And in the absence of a kitchen, it cannot be regarded as habitable accommodation which can be occupied by the respondent's son and his family. The position that emerges is that the family of the respondent, who is 81 years old, his wife, who is 74 years old; his elder son and his wife with two grown up daughters; have to permanently reside in the premises in suit. In addition, there would be requirement for the family of respondent's second son in the event of his being transferred out of Delhi as in the past also his family stayed back when he was posted to Lucknow. The respondent/landlord also has the requirement of his two married daughters and guests visiting him. Besides, having regard to the age of the respondent and his wife, they would be comfortable in and require the ground floor for accommodation. The premises in suit, comprising two bedrooms with a drawing-cum-dining room on the first floor would be insufficient. The respondent, therefore, bonafide requires the suit premises for his own residence and for the residence of his family members dependent on him.
14. In view of the foregoing discussion, I find no merits in the contentions raised by the learned counsel for the petitioner and there is no infirmity or material irregularity in the impugned order which calls for interference in the exercise of revisionary jurisdiction.
15. The Revision Petition has no merit and is dismissed.