Delhi High Court
Vinod Chander vs Ishwar Dayal on 14 October, 2004
Equivalent citations: 114(2004)DLT733
Author: R.S. Sodhi
Bench: R.S. Sodhi
JUDGMENT R.S. Sodhi, J.
1. Civil Revision No.1022/2003 seeks to challenge the judgment dated 14.8.2003 of the Additional Rent Controller, Delhi in E-17/2003 whereby the Additional Rent Controller has dismissed the petition under Section 14(1)(e) of the Delhi Rent Control Act (hereinafter referred to as 'the Act') holding that the requirements of the petitioner under Section 14(1)(e) were not bona fide.
2. Brief facts of the case as noted by the Additional Rent Controller are as follows:
"Shri Pramod Chander (since deceased) now through LRs along with younger brother Sh.Vinod Chander and his mother Smt.Leelawati Ohjha(since deceased and name deleted) had filed an eviction petition against the respondent Sh.Ishwar Dayal on the ground contained in clause (e) to proviso (1) of Section 14 of Delhi Rent Control Act, hereinafter referred to as the Act, pleading that the suit premises that is two bed room one drawing room, one bath room cu toilet, verandah on both sides Along with courtyard on two sides, lawn and loft in property no. A-10, defense Colony, New Delhi had been let out on 20/7/1979 to the tenant for purpose of residence and the same was now required by them for their own residence. It was further pleaded that petitioner no.1 who was earlier posted at Nabha has been transferred to Delhi is currently living in an accommodation provided by his employer on company lease, the petitioner no.2 has to vacate the portion in his occupation as a tenant in another property and lastly that both petitioner no.2 and petitioner no.3 are heart patients and have been advised by the doctors not to climb stairs but to live on ground floor. It was also stated that the petitioners have no other reasonably suitable residential accommodation in Delhi.
The property in dispute namely house no.A-10, defense colony, New Delhi, a lease hold property was originally owned by Shri Vishwanath Ojha late father of petitioner no.1 and 2 and husband of petitioner no.3 who died in the year 1969. After his death the property devolved upon all the three petitioners being his LRs and property was duly mutated in their names in the records of Land & Development Office and lease deed in their favor was executed by the concerned authorities. The petition was accompanied by a site plan, copy of the lease deed dated 30/7/1979 which as per them has executed between the parties after inception of tenancy on 20/7/1979. Originally the petition was filed for bonafide requirement of petitioner no.2 and his family comprising of hs wife and his two children with the plea that petitioner no.2 is working as accountant and is living in a rented premises bearing no.22/106, West Patel Nagar, New Delhi, that his landlady has already filed an eviction petition against him and he does not have other accommodation in Delhi. Subsequently the petition was amended and bonafide requirement of petitioner o.1 and petitioner no.3 was also incorporated with permission of the Court.
Prior to this when the petition was filed on 22/2/80, on report of refusal on the registered cover for service of respondent, an eviction order dated 15/7/80 was passed by Shri H.P.Sharma, the then Ld.A.R.C. In execution proceedings the possession of suit premises was taken by the petitioners with assistance of bailiff on 20.1.1981. Thereinafter in pursuance to application u/o 9 rule 13 CPC filed by the respondent the said eviction order was set aside by Shri Prem Kumar, the then Ld. A.R.C. Vide order dated 24/8/87. The petitioners were also directed to restore the possession of tenanted portion to the respondent within a period of seven days. Meanwhile the petitioners raised construction on the first floor as earlier the property A-10 was a single storeyed house. Respondent applied for restoration of terrace as well and vide order dated 9/11/87 the petitioners were ordered either to hand over the possession of first floor to the respondent or to demolish the first floor and hand over the possession of terrace. Legal battle however continued between the parties in different forums in respect of the terrace, finally Hon'ble High Court of Delhi has vide order dated 05/5/2003 directed that the possession of terrace shall not be handed over to the respondent till decision of the eviction petition under Section 14(1)(e) of DRC Act. IT was further directed that the eviction petition be decided within a period of three months from the first date fixed before this court.
To the pleadings of the petitioners the defense of respondent is that the tenancy started on 19/7/1979 in rspect of entire house no.A-10, defense Colony, New Delhi including the terrace and no written rent agreement or rent note was ever executed between the parties. The petition has been filed for eviction of tenant from part of the tenanted accommodation in as much as the terrace has not been shown as part of demised portion by the petitioners and therefore the petition is liable to be dismissed. It was further averred that the petitioners have deliberately created paucity of accommodation just to evict the tenant. The eviction petition filed by the so called landlady of petitioner no.2 is a collusive proceeding. Petitioner o.1 has managed his transfer to Delhi while petitioner no.3 is a permanent resident of Nabha and she does not want to shift to Delhi. It was also disputed that petitioner no.2 or petitioner no.3 are suffering from any disease. It was pointed out that in fact after creation of tenancy petitioners started pressurising the respondent to appear before Court of Smt. Kawal Inder, then the Ld.A.R.C. In proceedings under Section 21 of DRC Act, filed by the petitioners themselves to make a statement therein. On refusal of the respondent to make such statement the relations between the parties became sour and petitioners started harassing the respondent. There was no change in circumstances of the petitioners between the date of creation of tenancy and date of filing of petition which was otherwise a gap of merely seven months.
The petitioners in their replication naturally controverter the defense raised by the respondent and reaffirmed there own contentions.
With these pleadings the parties entered into evidence. The petitioners examined as many as five witnesses while respondent himself appeared as RW-1, the evidence was concluded and final arguments were advanced.
Oral submissions of ld.counsels representing both the sides were heard at length. Written arguments were also filed on behalf of respondent Along with case law relied upon by him.
Before starting with his arguments statement was made by Shri Kalka Prasad Aggarwal, Ld.Counsel for petitioners on behalf of petitioners that they do not press petition for bonafide requirement except for the requirement of petitioner no.2 and his family. In view of this statement the present petition shall be considered only as the petition filed for recovery of possession on the ground of bonafide requirement of petitioner no.2."
3. It is contended by counsel for the petitioner that the petitioner is living along with his wife and two grown up sons aged 24 and 26 years respectively who are dependent on him for their residence in a two room tenement built on the roof of the suit premises out of which one is puce while the other is an asbestos shed. Counsel contends that the requirement of the landlord is of an urgent nature and is bona fide inasmuch as the petitioners and the family have been living in such conditions since 1981 when the petitioner was evicted from the premises which was earlier in his tenancy. She also submits that the Additional Rent Controller went wrong in returning a finding that the requirement of the petitioner was not bona fide as the Controller based his order primarily on the ground that the premises in question were let out on being vacated by the earlier tenant while the present petitioner was living in a rented accommodation. As such, had the requirement been bona fide on the ground that the petitioner is required to vacate his tenanted premises he would not have created the subsequent tenancy with the present tenant. Counsel submits that the Controller lost sight of the fact that the eviction petition was filed against the petitioner by his landlady after creation of the tenancy which was not envisaged by the petitioner and in the event the petitioner had not been sought to be evicted he would not have filed the petitioner for eviction under Section 14(1)(e) of the Act against the present tenant.
4. Counsel for the respondent on the other hand contends that this case has a chequered history inasmuch as on 20.7.1979 the entire house bearing no.10-A, defense Colony, New Delhi was let out to the respondent and on 21.2.1980 eviction petition under Section 14(1)(e) of the Act read with Section 25B of the Act was filed against the respondent by three petitioners jointly, namely, Pramod Chander, Vinod Chander and Leelawati Ojha being petitioner no.1,2 and 3 respectively for the alleged need of the petitioner herein and his own residence. The petitioner has also filed a rent note dated 30.7.1979 Along with petition wherein it is stipulated that the tenancy started from 20.7.1979 and that the entire house bearing No.A-10, defense Colony, New Delhi consisting of two bedrooms, two bathrooms, drawing cum dining room, kitchen with loft, lawn and courtyard at the back, one loft above the kitchen and bathroom was let out to the respondent. It was further stipulated in para 10 of the rent note that the respondent shall maintain the lawn in front of the house up to the road at his own cost and shall pay for the gardener.
5. On 28.2.1980 while the respondent with his family had gone on a pilgrimage to Shri Tirupati, the petitioner on 29.2.1980 obtained a collusive refusal on the registered envelope of service. While the respondent was yet in Shri Tirupati on 15.5.1980 an order to the effect that service had been refused was made while on 15.7.1980 an eviction order was passed against the respondent giving him six months time to vacate the premise.
6. On 20.1.1981 the petitioner along with the bailiff came to execute the ex parte decree which was stayed by the Tribunal vide its order dated 20.1.1981. Yet the petitioner took forcible possession of a part of the premises.
7. On 27.1.1981 respondent filed an application under Section 25B (sub Sections 4 & 9) of the Delhi Rent Control Act as also an application under Order 9 Rule 13 CPC for setting aside ex parte decree.
8. On 30.1.1981 a civil suit being No.91/81 was filed for injunction restraining the petitioner from forcibly dispossessing of the respondent. On 14.4.1981 a statement was made before the Civil Judge that forcible dispossession would not be resorted to and that the parties shall abide by the order of the Additional Rent Controller. On 24.8.1987 an ex parte order of eviction dated 15.7.1980 was set aside and it took six years in doing so. The petitioner was granted seven days time to deliver possession to the respondent.
9. The appeal filed before the Tribunal was dismissed on 7.9.1987. On 10.9.1987 an application under Order 9 Rule 13 for demolition of the illegal construction on the terrace was filed. On 15.9.1987 an application under Order 39 Rules 1 & 2 read with Section 151 CPC was filed before the Additional Rent Controller that the petitioner had on 14.9.1987 started construction of another room in the terrace.
10. On 16.9.1987 the petitioner restored possession on the two rooms on the ground floor to the respondent but refused to restore possession of the roof. On 17.9.1987 the Additional Rent Controller restrained the petitioner from raising further construction on the roof. On 9.11.1987 the Additional Rent Controller by a common order disposed of the three applications of the petitioner and directed him to demolish the illegal construction as also to hand over the same to the respondent.
11. On 26.7.1988 the Tribunal dismissed the appeal No.977/1987 against the order dated 9.11.1987. On 11.8.1988 the petitioner filed SAO 109/88. High Court by its order dated 26.7.1988 stayed the order under challenge. On 21.9.1988 respondent filed cross appeal being No.138/88 challenging the order of the Rent Control Tribunal holding that the Additional Rent Controller could not have exercised power under Order 39 CPC.
12. On 07.07.1990 an application for amendment under Order 6 Rule 17 was moved by the petitioner to the effect that the premises in question was need by Pramod Chander and members of his family dependent upon him which application was allowed vide order dated 2.1.1991.
13. On 25.5.1997, Pramod Chander expired. On 11.09.2000, Shrimati Leelawati, petitioner no.3 died. On 5.5.2003 the High Court modified the order of the courts below and extended protection of possession of the terrace to the petitioner till the possession of the eviction petition by the Additional Rent Controller.
14. On 5.6.2003 counsel for the petitioners made a submission before the Trial Court that the present eviction petition did not press bona fide requirements for petitioner no.1 and 3 but confined it to petitioner no.2, Vinod Chander, the petitioner herein.
15. The High Court's order dated 5.5.2003 was challenged by way of a Special Leave Petition which was dismissed vide order dated 25.8.2003.
16. Counsel for the respondent submits that from the petition it is made out that the petitioners have been playing ducks and drakes and that they have been shifting their stands and that the petition under Section 14(1)(e) of the Act which now confines itself to the requirements of the petitioner herein is mala fide. He further contends that the eviction petition filed by the landlady of the present petitioner on 23.1.1980 could not have come to the knowledge of the petitioner before he was served with the summons only on 23.2.1980. Therefore, his filing of the petitioner under Section 14(1)(e) of the Act on 21.2.1980 is indicative of the fact that the petition is collusive and malicious.
17. Counsel further contends that this court has limited jurisdiction while dealing with matters in revision and supports his contentions by judgment of the Supreme Court in Hiralal Kapur Vs. Prabhu Chaudhary, .
18. I have heard counsel for the parties and have carefully gone through the material on record. From a perusal of the material on record including the statement/depositions of the petitioner herein to the effect that his family consists of himself and two grown up children, as also his present accommodation is one puce room, kitchen, toilet and one kutcha room on the roof of the premises in question and that this accommodation is insufficient for himself and members of his family dependent upon him, he requires the premises on the ground floor which consists of two bedrooms, drawing room, one bathroom-cum-toilet, verandah on both sides along with courtyard on two sides, lawn and loft presently in occupation of the tenant for his own bona fide requirement and that he has no other reasonable alternative accommodation available. It appears that the petitioner has discharged his onus.
19. The aforesaid deposition has not been seriously challenged except for the fact that the eviction petition under Section 14(1)(e) of the Act was filed on 21.2.1980 when the summons of his own eviction were served on him on 23.2.1980 although petition against him had been filed on 23.1.1980. This is sought to be made out as if the need has been created to obtain the eviction of the present respondent. This submission, though found favor with the Additional Rent Controller, is with great respect not tenable in view of the explanation of the petitioner in his deposition.
20. There is no gainsaying that subsequent events can be taken into consideration and as of date the children of the family are grown up, of marriageable age, besides the petitioner and his wife are also close to retirement would certainly need more accommodation than is presently available with them. Reference may be had to Freddy Fernandes Vs. P.L.Mehra [ 1973 RCR 53 (59)]; Shri Sain Das Berry Vs. Shri Madan Lal Puri, 1971 RCR (887); M/s Tin Containers Vs. Kanwar Bhan Wadhwa [ 1972 (2) RCR (4) Delhi]; Anand Gopal Jhingan Vs. K.D.Beri [ 1996 RLR 36]; Amrit Lal Vs. Jagpal Singh [1996 RLR 392 (395, para 10 and 12]; Dev Raj Bajaj Vs. R.K.Khanna [1996 RLR 125].
21. The size of the family is not disputed nor is the accommodation available with the landlord disputed while the bona fide need is only disputed on the ground that it has been created. This to my mind is hardly a fair observation inasmuch as the landlord has been living in miserable condition since 1981 and has continued to do so for the last 24 years. Surely the landlord would not have brought about and inflicted upon himself such misery but for the fact that he was compelled by circumstances beyond control. The accommodation available with the petitioner presently is grossly insufficient and his need for the accommodation available with the tenant on the ground floor fully justified. Each son would need one bedroom while the parents would need another bedroom, which can only been made available by evicting the tenant.
22. The submission made by counsel for the tenant that the present accommodation on the first floor is sufficient and that he would not be insisting on return of the same is of no consequence since it is not for the tenant to dictate to the landlord how he should live. Suffice it to say that I am convinced that the need of the landlord is bona fide and proved beyond doubt in which case I set aside the judgment dated 14.8.2003 of the Additional Rent Controller, Delhi in E-17/2003 and decree the petition under Section 14(1)(e) of the Delhi Rent Control Act as also direct the eviction of the respondent. The respondent, tenant is granted six months time to vacate the premises in question.
23. CR 1022/2003 is allowed and disposed of. CM 12807/2004 also stands disposed of.