Delhi High Court
R.B. Kapoor vs Manik N. Dastoor on 3 September, 1990
Equivalent citations: 43(1991)DLT127
JUDGMENT Sunanda Bhandare, J.
(1) The ground floor premises consisting of two bed rooms one drawing-cum-dining room, kitchen, W C. and servant quarter over the garrage of property no. 126 Jor Bagh, New Delhi were let out to the respondent on 7.11.1968 by the petitioner at a monthly rent of Rs. 750.00 for purely residential purpose. The petitioner was employed as Assistant Controller of defense Accounts at that time. A petition for eviction was filed by the petitioner on 29.11.1979 on the ground of bona fide personal need of the petitioner for himself and his family members dependant upon him. It was submitted in the said eviction petition that at that time the petitioner was posted at Meerut, his son was studying in Modern School, Barakhamba Road, New Delhi in 9th class. It was stated that on account of the petitioner and his family being out of Delhi, the education of the son of the petitioner had suffered due to absence of supervision and guidance. The petitioner, therefore, submitted that he wanted to shift his family from Meerut to live in the demised premises where the son of the petitioner would shift so that proper supervision and guidance can be provided. An application for leave to defend was filed by the respondent and it was contended that the premises were taken for composite purpose for residence cum business and the respondent was running his office at the said premises. He further stated that in November 1968 when the respondent took the premises on the ground floor on rent. the first floor was in occupation of United Nations Organisations and an American couple was occupying the same. However, the said premises fell vacant in June/ July 1974 and the said premises were rented out to one Shri Vishnu Dutt at a rental of Rs.1200.00 Per month. The respandent however contended that the petitioner is housed in a big bungalow st Meerut where he was living with his wife and children and that the other children of the petitioner were staying at Meerut and the excuse given by the petitioner regarding the education of his son who is studying in Modern School is a lame excuse given by the petitioner to get the premises in occupation of the respondent vacated. It was further submitted that the son of the petitioner was studying in the Modern School and was in the hostel for the last four years since the age of 10 years and now at the age of 15 years there was no reason why such a grown up boy studying in 9th class should not continue to stay in the hostel.
(2) A reply was filed by the petitioner to the said application for leave to defend and he denied the allegations made by the respondent. The Rent Controller by his order dated 28.2.1980 refused leave to defend to the respondent and ordered eviction of the respondent from the ground floor of the demised premises but gave six months time to the respondent to vacate the premises.
(3) The respondent filed a revision petition (C.R. 480/1980) against the said order in this court and leave was granted to the respondent to defend the eviction petition. This Court while allowing the revision petition of the respondent allowed the petitioner to amend the petition incorporating subsequent events before the Rent Controller the parties were directed to appear before the Rent Controller on 14.4.1981 and accordingly the petitioner moved an application for amendment under Order 6 Rule 17 of the Code of Civil Procedure. In the said application the petitioner submitted that during the pendency of the eviction petition in the High Court the petitioner had been transferred back to Delhi and before he was transferred his family had already shifted and taken on rent barsati room at R-652 New Rajinder Nagar, New Delhi with effect from 1st September 1980 at a rental of Rs. 700.00 per month. It was submitted that the petitioner believed that the respondent would vacate the premises in terms of the order of the Rent Controller dated 2821980 after the expiry of six months i.e. on 28th August 1980 and thus the petitioner anticipating that he will get the accommodation withdrew his son from the hostel ana for a temporary period took the barsati room in New Rajinder Nagar, New Delhi on rent. In the meanwhile, the petitioner had also been transferred to Delhi in January 1981. It was not possible for the petitioner to get allotment of government accommodation immediately and the existing accommodation of a barsati room at New Rajinder Nagar, New Delhi was not adequate for the requirement of the petitioner and that of his family members. He, therefore, prayed for urgent eviction of the respondent. The application for amendment was allowed and accordingly the petitioner filed an amended petition on 14.4.1981. The respondent filed a written statement in reply to the amended petition and same objections as in the application for leave to defend were raised by the respondent in the said written statement. The respondent contended that the additional ground was only an after-thought and the petitioner was not entitled to get the respondent evicted from the premises. On 13.7.1981 the petitioner once again filed another application under Order 7 Rule 7 read with Section 151 of the Code of Civil Procedure bringing certain further events on record. It was submitted that during the pendency of the revision petition in the High Court and at the time of the filing of the replication the petitioner was living in the barsati room at R-562 New Rajinder Nagar, New Delhi, however the petitioner was required to vacate the said accommodation on account of inadequacy of accommodation and had, therefore, shifted to 3/30 (First Floor), East Patel Nagar, New Delhi with effect from 1.6.1981 at a rental of Rs. 1050.00 per month. Thus, the petitioner was now in possession of rental accommodation consisting of one drawing cum dining room, 2 bed rooms besides kitchen, bath etc. This application of the petitioner was also allowed.
(4) Evidence was led by the parties. The petitioner examined himself as AW1. He also examined Shri Tej Ram, Dealing Assistant, Land & Development Office, New Delhi as AW2 and Col. S.B. Lal, brother of the petitioner as AW4. The respondent examined himself as RW1, Shri Risal Singh,U.D.C" Land & Development Office, New Delhi as RW2 and other three witnesses in support of his case. The Rent Controller by her order dated 27.8,1983 dismissed the eviction petition of the petitioner.
(5) The petitioner, therefore, filed the present revision petition in this Court on 12.1.1984 challenging the order of Smt. Manju Goel, Rent Controller Delhi dated 27.8.1983. The revision petition was admitted on 6.3.1984. During the pendency of the revision petition another application (C.M.I 664/1987) was filed by the petitioner under order 41 Rule 27, Order 7 Rule 7 read with Section 151 of the Code of Civil Procedure. The petitioner brought on record certain further subsequent events which had taken place. It was submitted that the petitioner remained in Delhi from January 1981 to June 1983 as Controller of defense Accounts, Head Quarters at New Delhi and by order dated 20.7.1983 he was ordered to be transferred to Bombay as Controller of defense Accounts (Navy) where he joined on 8.8.1983. The petitioner was again transferred to Delhi in February 1986 as Addl. Controller General of defense Accounts and that he was likely to take over as Controller General of defense Accounts very shortly. It was further submitted that the date of birth of the petitioner being 24.6.1930 he was due to retire on 30.6.1088 and thus was likely to continue in Delhi thereafter. The petitioner further submitted that at the time when the petition for eviction was filed in November 1979 the petitioner's son Abhinav Kapoor was a student of 9th class in Modern School, Barakhamba Road, New Delhi and was aged about 14 years. The petitioner's daughter namely Pragati Kapoor was a student of Sofia School, Meerut studying in 5th class. The wife of the petitioner shifted to Delhi to supervise the education of their son and she remained in the barsati room at Ne,v Rajinder Nagar New Delhi Along with the daughter and son. Thereafter, the petitioner took the accommodation at East Patel Nagar, New Delhi because of his transfer to Delhi but now the son of the petitioner has passed out of school and has joined Delhi College of Engineering in the year 1983 and is studying in the final year in Mechanical Engineering. He is aged about 22 years and the daughter who is aged 19 years of age is studying in the second year of B.A. at Indraprastha Girls College, Delhi. It was submitted that the children of the petitioner being aged 2 years and 1-9 years require separate rooms for themselves and, therefore the accommodation in East Patel Nagar. New Delhi was totally inadequate It was further submitted that the petitioner is accustomed to live in big bungalow and the petitioner as well as the children are accustomed to have their independent rooms in peaceful localities. The accommodation in East Patel Nagar' New Delhi is very noisy and is built on a small plot of land measuring 200 sq yds. It was further submitted that the petitioner is a man of status and thus the tenanted house in his occupation was totally incompatible with his status The petitioner submitted that his own house at Jor Bagh, New Delhi is built on a plot of 375 sq. yds and the ground floor of house no. 126 Jor Bagh New Delhi consists of big drawing cum dining room, two commodious bed 'rooms and a room above the garage. There is front lawn and back courtyard and the petitioner could also build additional accommodation for his family as permissible under the regulations of the New Delhi Municipal Committee The petitioner, therefore, prayed for eviction of the respondent by considering the additional subsequent events. The petitioner further submitted that whereas the petitioner is getting only Rs. 750.00 per month from the respondent he is paying Rs. 1050.00 per month towards rent to his own landlord for a much smaller accommodation. The petitioner is an income-tax payee and has also been suffering from high blood pressure for the last 3 years and, therefore, cannot live comfortably in the tenanted premises which are very noisy and full of pollution. Another application (C.M. 2664/87) was filed by the petitioner on 26.8.1987. In the said application it was stated that during the course of the arguments on the application (C.M. 1664/87) filed by the petitioner under Order 41 Rule 27, Order 7 Rule 7 read with Section 151 of the Code of Civil Procedure, the petitioner was required to file an additional affidavit clarifying as to who was residing on the first and the second floor of the demised premises. The petitioner thus stated that Shri Anant Kaushal s/o Shri Vishnu Dutt had been residing on the first and second floor of the demised premises after the death of the brother of the petitioner Sh. Vishnu Dutt. It was submitted that Shri Vishnu Dutt died in the year 1985 leaving behind his son and daughter who became tenants in the said premises and though the daughter of Sh. Vishnu Dutt is married, Shri Anant Kaushal continues to be in possession of the said premises.
(6) Both the applications C.Ms. 1664/87 and 2664/87 came up for hearing together and were disposed of by order dated 23.11.1987 and the court remanded the case back to the Rent Controller for recording oral evidence on the subsequent events placed in C.M. 2664 of 1987. This Court directed the Rent Controller to record additional evidence on the question of availability of first and second floor of the premises bearing no 126 Jor Bagh, New Delhi to the petitioner and on the question of proof of transfer of the petitioner from Bombay to Delhi and about his date of retirement. This Court confined the recording of evidence only on these two points. Accordingly, the Rent Controller recorded the evidence of the parties and on 4.10.1988 sent back the file to the High Court. The petitioner produced Shri A. Jankiraman, Assistant Controller General of defense Accounts as Aw 5 to prove the transfer and posting orders of the petitioner. The petitioner also produced two other witnesses to prove that the premises on the first floor and barsati floor were occupied by Shri Anant Kaushal. The petitioner also produced Shri Anant Kaushal as a witness. The respondent produced three witnesses to show that Shri Anant Kaushal was not in occupation of the premises on the first floor and barsati. The petitioner has assailed the order of the Rent Controller dated 27.8.1983 and prays that in the light of the subsequent events, an order of eviction be passed against the respondent and possession of the premises be directed to be given to the petitioner.
(7) Learned counsel further submitted that the petitioner has now retired from service and is in Delhi; several years have passed since than and though the daughter of the petitioner is married, the son has become of marriageable age and the accommodation at East Patel Nagar, New Delhi is inadequate and the petitioner requires the premises let out to the respondent for his own bona fide personal use and for the use of his family members.
(8) On the other hand, learned counsel for the respondent contended that the petitioner has been changing his stand several times. The petitioner moved various applications one after another bringing subsequent events on record but the circumstances at the time the Rent Controller passed the impugned order did not warrant eviction of the respondent. Learned counsel submitted that the accommodation presently in occupation of the petitioner is sufficient for his need and there is no financial loss to the petitioner though he pays higher rent for the tenanted accommodation. Learned counsel submitted that the petitioner deliberately created a need for himself by making out a case on the ground of studies of his son. The petitioner had failed to show that the son Abhinav Kapoor could not continue to be in the hostel. Learned counsel submitted that it was a made up story in order to g"t the respondent evicted from the premises so that the premises could be let out for higher rent to some other tenant. Learned counsel further submitted that the petitioner allowed his brother to stay on the first floor and barsati and that accommodation was still available to the petitioner for his own occupation. The petitioner has failed to prove that the premises were let out to his brother Shri Vishnu Dutt or that after his death his nephew occupied the premises as a tenant. Learned counsel submitted that since they were not tenants the petitioner could always ask then to vacate the premises. Learned counsel submitted that the premises in occupation of the respondent were not required bona fide by the petitioner. for his own occupation. Though he respondent did not file any cross objections, learned counsel assailed the order of the Rent Controller on the question of letting purpose. Learned counsel submitted that the premises were let out for residential cum commercial purpose and since the respondent operates his office from the demised premises he cannot be evicted from the premises on the ground of bona fide personal need. Learned counsel very fairly conceded that the petitioner has now retired from service and that he has now shifted to Delhi, however it was most vehemently contended that Shri Vishnu Dutt was not a tenant and was only allowed to use the premises on the first floor and barsati as a licensee and thus that accommodation was available to the petitioner.
(9) On going through the evidence on record and also the impugned order of the Rent Controller dated 27.8.1983 I find that the Rent Controller has completely lost track of the fact that the petitioner bad taken the premises at 3/30 (First Floor), East Patel Nagar, New Delhi after the petitioner had let out the premises to the respondent. The petitioner gave the demised premises on rent to the respondent in the year 1968 and for almost 11 years did not seek eviction of the respondent. It is only in November 1979 when the son of the petitioner had become 15 years old that the petitioner felt the need to shift his family to Delhi because the education of his son was suffering and it was felt that it would not be proper for him to continue in the school hostel. The petitioner took the premises on rent at New Rajinder Nagar, New Delhi which consisted of a barsati room on 1.9.1980 after an order of eviction was passed against the respondent on 28.2.1990 and six months time was given to the respondent to vacate the premises. The respondent did not vacate the premises because of the stay order given by this Court. Certain events which are brought on record by the petitioner show that during the intervening period the petitioner was transferred to Delhi and thereafter petitioner found it impossible to live in the barsati room at New Rajinder Nagar, New Delhi and, therefore, on 10.6.1981 took the house at 3/30 (First floor), East Patel Nagar, New Delhi on rent which consisted of one drawing cum dining rooms, two bed rooms besides kitchen and bath. The petitioner was thus compelled to take rented accommodation because his own house was not available to him because it was occupied by the respondent. Certainly, the petitioner was not expected to be on the road while the eviction petition was still pending. He had to take some accommodation on rent, if necessary by paying higher rent in order that the family members do not suffer during the intervening period. In my view, the approach of the Rent Controller was incorrect because when a landlord takes another accommodation on rent for compelling reasons daring the pendency of eviction petition, that itself shows that the landlord does not have other reasonably suitable residential accommodation. In such a case, whether the landlord can afford to pay the rent or whether there are enough number of rooms to accommodate his family is irrelevant. In the present case, the fact that the petitioner was willing to set up a separate establishment and also forego the rent so that his son's studies should not suffer shows that the petitioner was in genuine need of the accommodation. It is pertinent to note that the petitioner was occupying very high post in the Ministry of defense and retired as Controller General of defense Accounts. Thus, if the petitioner was willing to sacrifice or bear monetary burden temporarily for the education of the son it cannot be said that the conduct of the petitioner was unjustified or malafide. It is not uncommon that some people who hold transferable jobs at times have to maintain separate establishment for the betterment and education of their children. The contention of the respondent that since the child was in a boarding school he must continue to be in a boarding school till he passes out of the school is not at all tenable. Undoubtedly, concerned parents have to take a decision after taking into consideration all factors, as to what in their opinion is in the interest of the welfare of their child. The facts of the present case disclose that the son of the petitioner was of very impressionable age when the petitioner decided to shift him out of the hostel. It cannot, therefore, be said that the ground taken by the petitioner is merely a made up story only to get the tenant evicted from the premises. The conduct of the petitioner also proves that it was not a made up story because he in fact shifted to Delhi and stayed in a rented accommodation all through the pendency of this petition. Admittedly, now the petitioner has retired from service and if he expects to live in his own house there is nothing unnatural or unreasonable about it. The Rent Controller, in my view, erred in rejecting the claim of the petitioner on purely financial ground and failed to consider the genuineness of the need of the petitioner by keeping in view all the aspects enumerated by me hereinabove.
(10) The next question to be considered is whether the first floor and barsati floor of the premises at Jor Bagh, New Delhi were available to the petitioner for his residence; i) at the time he filed the eviction petition; and (ii) subsequently after the demise of Shri Vishnu Dutt. I find that the respondent himself in his application for leave to defend, has stated that the petitioner has rented the first floor and barsati floor to one Shri Vishnu Dutt. It was however contended by the learned counsel for the respondent that the respondent did not know at that time that Shri Vishnu Dutt was the brother of the petitioner and he though that he was some other person and, therefore, he had stated that it was tenanted to Shri Vishnu Dutt. Learned counsel submitted that the respondent later learnt that Shri Vishnu Dutt was petitioner's brother and he was not paying rent to the petitioner for use and occupation of the first floor and barsati floor of the premises. It appears that this question of availability of the first floor of the premises was not considered by the Rent Controller at all. The petitioner in the eviction petition did not state specifically that the first floor premises were let out to Shri Vishnu Dutt but the respondent in the application for leave to defend specifically contended that they were let out lo Shri Vishnu Dutt. When the written statement was filed by the respondent after the High Court granted leave to defend, the respondent submitted that the first floor and barsati floor of the suit property have come into possession of the petitioner after the ground floor was let out to the respondent in the year 1974-75 but he never occupied the said premises though even at that time, the petitioner's son was studying in Modern School and was staying in the hostel. In the replication filed by the petitioner to the written statement, the petitioner has stated that he did not want to occupy the first floor in 1974-75 because he was having government accommodation then and only when he was posted at Meerut and his son reached the higher secondary stage that the need for accommodation arose. Thus, in the written statement there is no specific allegation that Shri Vishnu Dutt was not a tenant. The petitioner has however stated in his statement that the first floor has been in occupation of Shri Vishnu Dutt right from 1.10.1973. The petitioner admitted in his cross-examination that the first floor and barsati floor fell vacant in the year 1973 and yet he did not occupy the said premises but gave them to his brother Shri Vishnu Dutt. No specific question was however asked to the petitioner whether the premises were given to Shri Vishnu Dutt for his occupation as a licensee or as a tenant or at what rent the premises were given to Shri Vishnu Dutt. The petitioner also examined Col. S.B. Lal as Aw 4. He has categorically stated that Shri Vishnu Dutt is in possession of the first floor and barsati floor of the suit premises since 1.10.1973 as a tenant. A suggestion was made to this witness that Shri Vishnu Dutt was not a tenant in the premises but was probably occupying only as a licensee.
(11) Considerable emphasis was laid by the learned counsel for the respondent on the fact that the petitioner has not produced the rent receipts given to Shri Vishnu Dutt or any proof of payment of rent. Non-production of rent receipts or rent note, in my view, is of no consequence. The petitioner would be required to produce evidence to prove the tenancy of Shri Vishnu Dutt only if the respondent had raised the doubt about his tenancy in his written statement. Rather, the respondent had in the application for leave to defend himself alleged that the premises were let out to Shri Vishnu Dutt. Once the respondent had himself admitted that Shri Vishnu Dutt was a tenant there was no necessity to produce evidence to prove tenancy of Shri Vishnu Dutt. Thus, it has to be accepted that Shri Vishnu Dutt was in occupation of the premises on the first floor and barsati floor as a tenant. It is also important to note that admittedly, Shri Vishnu Dutt was inducted on the first floor premises much before the eviction petition was filed. It would have been a different matter if premises on the first floor were let out during the pendency of the eviction petition or just before the petitioner filed the eviction petition. It cannot, therefore, be said that the first floor premises were let out by the petitioner to Shri Vishnu Dutt for some mala fide or ulterior reasons.
(12) The next question is whether the premises on the first floor and barsati floor became available to the petitioner after the demise of Shri Vishnu Dutt during the pendency of the revision petition. The petitioner has produced Shri Anant Kaushal as AW8. He has categorically stated that after the death of his father he and his sister inherited the right of tenancy and he continued and barsati floor. All these facts show that the premises on the first floor and barsati floor were not available to the petitioner for his own occupation.
(13) Now, coming to the question of letting purpose. The respondent contended in the written statement that the petitioner had let out the premises to the respondent both for commercial purpose as well as for residential purpose. Though the respondent has not filed an appeal against the adverse finding of the Rent Controller on this question, I heard the learned counsel for the respondent even on this question. I find that the respondent has not placed any document on record to show that the letting purpose was composite. In fact, the Rent Controller has observed that originally the respondent had made a specific plea that rent note was executed by the parties where the letting purpose was clearly mentioned to be residential cum commercial, the respondent in his cross-examination has retracted from his own averment and stated that the affidavit filed by him is incorrect. He has admitted that there is no document to prove that the letting purpose was for residence cum office. The question of letting purpose has to be, therefore, considered in the light of the nature of the property and the locality in which the property is situated. It is not disputed that the petitioner got the land on perpetual lease from the President of India. The lease is given by the President of India for purely residential purpose. According to the lease Ext. A-1 the petitioner was permitted to build a dwelling house on the said land. The premises are in a purely residential locality. It has also come in evidence that the respondent has got another accommodation as a full-fledged office. The Rent Controller has considered all these aspects and has come to the conclusion that the premises were let out to the respondent for purely residential purpose. Therefore, there is no force in the contention of the learned counsel for the respondent that the premises were let out also for commercial purpose.
(14) In the circumstances, the revision petition is allowed. The order of the Rent Controller, Delhi dated 27.8.1983 is set aside. The petitioner is entitled to the eviction of the respondent from the ground floor of premises bearing no. 126 Jor Bagh, New Delhi as shown in the site plan filed before the Rent Controller. A decree for eviction is passed against the respondent in respect of the afore-mentioned premises. The respondent is however given six months time to vacate the premises. The petitioner is entitled to costs.