Delhi High Court
Dev Raj Bajaj vs R.K. Khanna on 9 September, 1996
Equivalent citations: 1996IAD(DELHI)704, 61(1996)DLT784, 1996RLR125
JUDGMENT C.M. Nayar, J.
(1) E present Second Appeal arises from the judgment dated November 6, 1985 of Shri M.A. Khan, Rent Control Tribunal, Delhi. The learned judge affirmed the judgment dated October 22, 1984 passed by Shri I.C. Tewari, Additional Rent Controller.
(2) The brief facts are that the appellant filed a petition for eviction of the respondent on June 5, 1975 from the ground floor of House No. A/I 67, defense Colony, New Delhi, on the averments that the premises were let out to the respondent for residential purposes and the appellant required the same bonafide for his own residence and for the residence of his family members dependent upon him as the accommodation in his possession was not sufficient. He further alleged that one of his sons was a Class I Gazetted Officer in Central Power and Water Commission and posted at Delhi and he was of marriageable age and his wife was a patient of high blood pressure and she had been under constant fear of heart attack. The Doctor attending on her advised her to avoid climbing the stairs and to stay on the ground floor. The petition for eviction was subsequently amended on August 3, 1976 adding that the appellant had suffered a serious accident on November 29, 1972 and remained in plaster and in bed for more than four months. He also suffered multiple compound fracture in his right leg and inspite of the plaster his bones were not properly set and suffered permanent disability inasmuch as his right leg was shortened by about one inch and he suffered recurring pains in 1974. In February, 1976, he again suffered the attack of pain and he was advised not to exert and climb stairs. The respondent in his written statement refuted the allegations of the appellant that the premises were bona fide required by him for his own use or for the residence of his family and it was denied that the appellant was not in possession of sufficient accommodation or that his wife was ill or that he himself felt difficulty in climbing the stairs etc. According to him, the appellant was in possession of the first and second floors of the demised premises which comprised of three bed rooms, one drawing-cum-dining room etc. as well as two bed rooms, W.C. and bath room etc. respectively. The averments with regard to the illness of the appellant and his wife were vehemently denied. The learned Additional Rent Controller, on appreciation of evidence on record, held that the appellant was in possession of accommodation which was sufficient for his own use and for the use of his family and he did not bona fide require the premises for occupation. The appellant felt aggrieved by the Order of the Additional Rent Controller and filed an appeal before the Rent Control Tribunal. The Tribunal rejected the contentions of the appellant and held that (a) the appellant was in possession and use of the first floor and second floor of the house and he did not produce any documentary or medical evidence to prove that his wife was suffering from hypertension and she had been given the medical advise against climbing the stairs. Therefore, the need of the appellant could not be held to be bonafide; (b) the accommodation on the first floor and on the second floor comprised of five bed rooms, three on the first floor and two on the second floor and the family of the appellant consisted of himself, his wife, two sons and the daughter and in view of this also, the need of the appellant could not be termed as bonafide as he was in possession of sufficient accommodation at the time of filing the eviction petition ; (c) the fact that the appellant did not plead his own illness as a ground for eviction in the original petition in 1975 was a circumstance which lends credence to the statement of the witnesses of the respondent. The plea that the appellant required the ground floor premises for occupation because of his disability or his inconvenience on account of the fracture in his leg was not true. In the above background, the accommodation of the appellant was held sufficient even after taking into account the casual or short visit of his daughter.
(3) The learned Counsel for the appellant has assailed the findings of the Rent Controller as well as of the Tribunal and has vehemently argued that the appellant is not possessed of sufficient and reasonable accommodation and in view of the present size of the family, the accommodation cannot be, in any manner, termed as sufficient. It is well settled that the subsequent events, such as the increase in the size of the family, the age and health of the landlord and other members dependent on him, can be taken into consideration in assessing the requirement and need. The inconvenience in climbing the stairs and health problems obviously come into existence as one grows older.
(4) The Appellate Court is entitled to take into account subsequent facts and events which come into existence after the decree appealed against and its powers are not confined only to see whether the decisions of the Courts below were correct according to the law as it stood at the time when such decisions were given. The settled proposition in this regard was acceptable as early as in the year 1941 in the judgment Lachmeshwar Prasad Shukul and Others v. Keshwar Lal Chaudhuri and Others and in Surinder Kumar and Others v. Gian Chand and Others, . Similar was the view as taken in the judgments as reported in Pasupuleti Venkateswarlu v. The Motor & General Traders, and Mis. Variety Emporium v. R.M. Mohd. lbrahim Naina, . The subsequent events which have taken place with regard to the ages of the appellant, his wife, the marriages of the sons and daughter as well as the birth of grand children are not disputed. They can, therefore, certainly be taken into consideration in assessing the bonafide requirement of the landlord, as it is open for this Court to consider the same to do complete justice between the parties. This Court in exercise of its powers in the second appeal is not entitled to interfere and review the findings with regard to the extent and area of accommodation available with the landlord for determining the question of bona fide requirement. That by itself cannot be considered to involve a substantial question of law which would require consideration. The bonafide requirement will, however, have to be considered also on the basis of subsequent events to determine the need of the premises by the appellant and his family members.
(5) In Shri Krishna Kumar and Another v. Mrs. Vimla Saigal, 1969 R.C.R. (Vol 1) 236 this Court considered the plea of bonafide requirement based on the health of the landlord and came to the following conclusion : "IT may appropriately be pointed out that after a certain age, a person may be advised, by way of precaution or as a preventive measure, not to climb up the stairs in order to protect his heart from possible damage by reason of excessive strain. If such circumstances exist, then also it may satisfy the statutory requirement and actual damage to the heart may not be insisted upon as an essential mandatory condition precedent in order to give to the landlord possession of the ground floor for residence."
In this case, the present age of the appellant is 72 years and he has since retired from service. His wife is aged about 67 years. Assuming if the findings recorded by the Rent Controller as well as by the Tribunal are accepted, though no cogent grounds have been made to completely reject the testimony of the witnesses, the ages of the appellant and his wife will justify their desire to live on the ground floor The Tribunal has also not disbelieved the fracture which the appellant suffered causing permanent disability. The following paragraph from the judgment may be reproduced as under: "THE evidence on the record has established that the appellant has suffered fracture in 1972 and that his leg has shortened by one inch. But at the same time there is circumstantial and oral evidence on the record to show that the appellant all through been residing on the first floor and the 2nd floor and he has been climbing the stairs without making the complaint about the inconvenience. He got the treatment in 1974. But his allegations that he had recurrence of pain in 1976 giving him an occasion to plead this additional ground for eviction of the tenant is not borne out from the evidence."
Moreover, the basic preventive measure is not to climb the stairs and it is more convenient to stay on the ground floor, particularly when the appellant and his wife have already aged and suffered some form of disability and ailments. The findings of the Tribunal, therefore, cannot be sustained.
(6) There is also change in the present status and size of the family of the appellant which is as follows : 1. The appellant himself who has since retired as Assistant Director General, Post & Telegraph, aged about 72 years; 2. Wife of the appellant aged about 67 years; 3. The elder son aged about 45 years who has since been married, his wife and two children, boy and girl aged about 16 and 11 years respectively; 4. One younger son, aged about 36 years with two children aged 11 years and 9 years. It is not in dispute that he is presently posted and working at Bombay; 5. One daughter married in Delhi with two children aged 16andl3 years. In this background, there is force in the contention of Counsel for the appellant that the accommodation available with him cannot be termed as sufficient and convenient and, in any case, the subsequent increase in the size of the family makes the need all the more greater. In Narotam Prasad v. Chameli Devi, 1988(1) R.C.R. 46 this Court has taken into account the admitted position with regard to the increase in size of the family of the landlord as well as the need of the married daughters who have to visit their parents atleast occasionally.
(7) The learned Counsel for the respondent has vehemently argued that two Courts have given a concurrent finding with regard to the need of the appellant and there is no scope of interference in the present second appeal as no substantial question of law arises for consideration. He has referred to the judgment as reported in Pajnu Mal and Others v. Shrimati S.L. Keshwani and Others, ; Shri Ram Gopal v. Shri Washeshwar Nath, and Raj Bahadur & Others v. Sushila Devi Nigam & Others, .
(8) Strong reliance is also placed by both the Counsel on the judgment of the Supreme Court as reported in Mattulal v. Radhe Lal, . Para 10 may be reproduced as follows : "IT is settled law that the High Court in second appeal cannot reappreciate the evidence and interfere with findings of fact reached by the lower Appellate Court. The lower Appellate Court is final so far as findings of fact are concerned. The only limited ground on which the High Court can interfere in second appeal is that the decision of the lower Appellate Court is contrary to law. It is only an error of law which can be corrected by the High Court in exercise of its jurisdiction in second appeal. If the finding recorded by the lower Appellate Court is one of law or of mixed law and fact, the High Court can certainly examine its correctness, but if it is purely one of fact, the jurisdiction of the High Court would be barred and it would be beyond the ken of the High Court unless it can be shown that there was an error of law in arriving at it or that it was based on no evidence at all or was arbitrary, unreasonable or perverse. This position was indeed not disputed by the learned Advocate appearing on behalf of the respondent but his contention was that the finding of the Additional District Judge in regard to the question of bona fide requirement of Lohia Bazar shop by the respondent was a mixed finding of law and fact and the High Court was, therefore, entitled to examine its correctness, and if it was found to be wrong, interfere with it even while exercising jurisdiction in second appeal. The question which, therefore, arises for consideration is whether the finding of the Additional District Judge that the respondent did not bona fide require the Lohia Bazar shop for the purpose of starting the business of a dealer in iron and steel materials was a pure finding of fact or a mixed finding of law and fact. If it was the latter, the High Court would have a much larger freedom to interfere, but not so if it was the former, in which case only certain limited grounds would be available to the appellant to attack the finding."
The facts of the case as cited above will indicate that the Additional District Judge therein, on appreciation of evidence, reached the conclusion that the landlord did not bonafide require the premises in question for the purpose of starting business as a dealer in iron and steel materials which obviously was a finding of fact and not a mixed question of law and fact and could not be interfered with by the High Court in second appeal unless it was shown that in reaching it a mistake of law was committed by the Additional District Judge or it was based on no evidence or was such as no reasonable man could reach. The case, therefore, related to the requirement of the landlord for non-residential accommodation which was in possession of the tenant and the plea for for bona fide need for the purpose of starting business was essentially a question of fact to be determined on appreciation of evidence. This, indeed, could not be interfered with in second appeal.
(9) The basic contention, therefore, is that the limited ground on which the High Court can interfere in the second appeal is that the decisions of the Rent Controller and the Tribunal are contrary to law as it is only an error of law which can be corrected by the High Court in exercise of its jurisdiction in second appeal. The High Court can not reappraise the evidence and interfere with the findings of fact as reached by the Tribunal and the Rent Controller. There is no dispute about this proposition which is fairly well settled. But at the same time there is no doubt that "WHERE the Courts have committed an error of law or the finding of the Courts is one of law or mixed question of law and fact, the High Court would certainly be entitled to examine its correctness. Even if the appeal raises a pure question of fact the High Court would be entitled to examine it if it can be shown that there was an error of law in arriving at it or that the finding was based on no evidence at all or was arbitrary, unreasonable or perverse."
(Ajit Singh v. Inder Saran and Others, 1979(1) R.C.R. 602).
(10) In the present case, the Rent Controller as well as the Tribunal have not disbelieved the fracture and other injuries including permanent disability of the appellant but merely rejected the evidence on the ground that there was circumstantial and oral evidence to show that the appellant was residing on the first/second floor and climbing the stairs without any complaint about the inconvenience. The plea of the illness of the wife was also termed as false. These findings are obviously arbitrary and perverse and could not have been entertained to totally brush aside the pleas of the appellant. In any case, it is well settled that as one reaches old age it is more convenient in the interest of general health that the residence is shifted to the ground floor.
(11) For the aforesaid reasons, this appeal is allowed. The judgments of the Additional Rent Controller as well as of the Rent Control Tribunal are set aside. The respondent, however, is granted time for a period of six months to vacate the premises. There will be no order as to costs.