Delhi High Court
Sumitra Devi vs Raj Rani Sehdev on 30 May, 2002
Equivalent citations: 98(2002)DLT355, 2003(66)DRJ82
Author: R.C. Chopra
Bench: R.C. Chopra
JUDGMENT R.C. Chopra, J.
1. This petition under Section 25-B(8) of Delhi Rent Control Act 1958 (hereinafter referred to as "the Act" only) assails an order dated 11.9.2001, passed by learned Additional Rent Controller, Delhi, in Eviction Petition No. 108/95, passing eviction orders under Section 14(1)(e) read with Section 25B of the Act in favor of the respondent and against the petitioner/tenant.
2. I have heard learned Counsel for the petitioner and learned counsel for the respondent. I have gone through the records.
3. The petitioner-tenant assails the impugned eviction order on two grounds. Firstly that the petition was bad for non-joinder of necessary parties as all the LRs of the deceased-tenant Paras Ram had not been imp leaded and secondly that the respondent-landlady had bonafide need in respect of the premises in question.
4. Learned counsel for the petitioner argues that the premises in question were let out to deceased Paras Ram and after his death the tenancy had devolved upon his widow, sons and daughters but the eviction petition was filed against the petitioner widow only without impleading the other LRs. He relies upon a judgment in Mohd. Idress and Anr. v. Mst. Nathi reported in 90(2001) DLT page 274 to counted that the eviction petition filed by the petitioner is liable to be dismissed on this ground alone. He also argues that the respondent-landlady is permanently settled in U.K. Along with her sons and daughters and has no intention of coming back to India. It is submitted that respondent/landlady has no bonafide need in respect of premises in question for her residence. It is also pointed out that the first floor and Barsati floor of the building in question are still in the possession of the respondent and a sister of the respondent is living there without payment of rent and as such alternative accommodation is available to the respondent-landlady for stay as and when she visits India or as and when she decides to shift to India. Learned counsel for the petitioner argues that the Court have to draw a distinction between s "desire" to occupy the premises and "requirement" defined under Section 14(1)(e) of the Act. He relies upon Sri Kempaiah v. Lingaiah and Ors. reported in VII (2001) SLT 602, Sushila Devi Etc. v. Avinash Chander reported in 1987 RLR (SC) 137 and Amarjit Singh v. Smt. Khatoon Quamarain reported in 1987 (1) RCR page 192 SC.
5. Learned counsel for the respondent on the other hand submits that after the death of the deceased-tenant Paras Ram his widow was inducted as a tenant in the year 1986 vide rent agreement Ext. R-1 to which no LR had raised any objection till the eviction petition was filed. He relies upon Mohd. Yunus v. Nawabuddin reported in 2000 RLR page 74 to argue that the objection raised by the petitioner in this regard is absolutely frivolous. Learned counsel for the respondent-landlady further submits that the respondent and two of her sons are very keen to come beck to India in as much as they are unemployed and are living on unemployment pension only. It is also argued that the desire of the respondent-landlady and her family to come back to India is bonafide and for that reason only they had never let out the first floor portion of the house in question and had allowed the sister of the respondent to stay there till they came back to India from U.K.. It is submitted that a genuine desire to come back to one's own country is a bonafide requirement and as such the learned ARC was fully justified in passing the impugned order against the petitioner. Relying upon a judgment of the Supreme Court of India in Shiv Sarup Gupta v. Mahesh Chand Gupta reported in AIR 1999 SC 2057, Learned counsel for the respondent argues that this Court should not substitute its own view in place of the view taken by the learned Rent Controller which was according to law.
6. Coming to the question as to whether non-impleadment of the other LRs of the deceased-tenant is fatal or not to the eviction petition filed by the respondent, this Court is of the considered view that all the LRs of the deceased-tenant inherited tenancy rights in the tenanted premises upon the death of tenant but when one of the LRs was accepted as a tenant by the landlord within their knowledge and they raised no objection they are now precluded from objecting to the creation of tenancy in favor of only one L.R. The agreement Ex. R-1 between the petitioner and the respondent clearly shows that after the death of the deceased Paras RAm fresh tenancy was created in favor of the petitioner only to which no other LR objected for so many years and as such this plea has been raised merely with a view to resist the eviction petition. It can be safely said that all other LRs of deceased Paras Ram had impliedly surrendered their tenancy rights and thereafter fresh tenancy was created in favor of their mother, the petitioner. Therefore the impugned order does not suffer from any infirmity on this score. In the case of Mohd. Yunus v. Nawabuddin (supra) a learned Single Judge of this Court also took the view that in a case in which after the death of a tenant one of his LRs attorns in favor of landlord and then on being sued contends that other legal heirs are necessary party such a plea cannot be sustained. The judgment in Mohd. Idress and Ors. v. Mst. Nathi (supra) was on entirely different facts as tenancy was inherited by all the LRs. and one of them was not imp leaded. It was not a case of creation of tenancy in favor of one of the LRs.
7. The plea of the petitioner that the respondent and her family is settled in U.K. for the last about 35 years and have become citizens and green card holders and as such have no intention to shift to India, requires consideration for the reason that the Courts exercising powers under Section 14(1)(e) read with Section 25-B of the Act have to ensure that no unscrupulous landlord is able to evict a tenant on a false and frivolous plea of bonafide requirement. However, the Courts also have to ensure that no landlord/owner is kept deprived of his property. in the hands of a tenant, inspite of the fact that he bonafide needs the same for his own residence and the residence of his family members. The respondent who appears as AW 1 made a statement on oath that she wanted to shift to India. AW 2 Varinder Kumar Sahdev, son of the respondent-landlady, also stated that he was unemployed for the last about 10 years and he Along with his wife were desirous of shifting to India. According to him his younger brother was also interested in coming back to India. The respondent-landlady, who is suffering from various ailments including some problems in the backbone appears to be keen to come back to India and it is not un-natural also for the reason that all those who move out of their own country for the sake of business or career, at one stage or the other feel like going back to their roots so that towards the end of their lives they are in their own country and with their own people. In such cases the desire to come back to one's own country gives rise to bonafide need and cannot be out right rejected as malafide unless there is some positive evidence to show that the desire is a hoax and real motive is somethingelse. The respondent and her family, even if they do not shift to India permanently require the premises for use and occupation in the course of their visits and as such the plea of the learned counsel for the petitioner that the plea of bonafide need as set up by the respondent should be rejected cannot be sustained.
8. In Sri Kempaiah's case (supra) the Apex Court while dealing with a case of eviction on the ground of bonafide requirement emphasised that a mere wish or desire on the part of the landlord is distinguishable from "bonafide requirement" and a duty is cast upon the Court to satisfy itself in regard to the bonafide of the requirement. The emphasis in this judgment was that Courts should not be influenced by mere wish or desire but try to look for something more to know as to whether the plea of requirement is bonafide or not. It may be stated that in cases like the present one requirement is preceded by a wish or desire to shift to one's own country and if there is nothing on record to show that the wish or desire on the part of the owner is sham or mere pretence to make out a case bonafide requirement the existence of such wish or desire assists the Court in ascertaining the bonafide of the plea of requirement. The plea of the petitioner that the respondent wants to sell off or let out the premises on a higher rent after evicting the petitioner cannot be accepted for the reason that there is no evidence on record to suggest even that the respondent is going to sell or let out the premises in question after evicting the petitioner. Moreover such apprehension can be echoed by every tenant to oppose an eviction petition, but as rightly observed by learned ARC, Section 19 of the Act takes care of such apprehensions.
9. A Single Judge of this Court in T.D. Dhingra v. Pritam Rai Khanna upheld the claim of bonafide requirement by a landlord-owner who had acquired British citizenship but was claiming eviction on the ground of bonafide requirement for his stay in India. In the present case the respondent-landlady and her two sons have deposed on oath before the Trial Court that they intend to return to India. Nothing could be brought out in their cross examinations to falsify them on this issue. The petitioner inspite of raising a plea that the respondent intends to sell the property in question has not produced any evidence to establish that the respondent has been negotiating with some one in regard to sale of this property. The fact that the respondent had never let out the first floor portion and had kept it with her sister for so many years fully corroborates her plea that she is not interested in any monetary gain and she genuinely intends to come back to India with her one or two sons and stay here. The respondent being an old lady and suffering from so many ailments and physical problems is unable to use the first floor portion and as such is in bonafide need of premises in possession of the petitioner. In view of the status, life style, habits, six of family of the respondent and her sons their need for the ground floor as well as first floor of the building in question for resindential use is neither unreasonable nor exaggerated. This Court does not find any good ground for holding that the plea of bonafide need as raised by the respondent is a pretence only and the respondent does not require the premises in question for residential use.
10. It is also well settled that while exercising powers under Section 25-B(8) of the Act the High Court has to test the orders of the Rent Controller on the touch- stone of "whether it is according to law" or not. The High Court must not substitute its own opinion in place of the view taken by the Controller unless the view taken by him betrays lack of reason or objectivity or appears to be so unreasonable that no prudent man could have taken that view. The impugned order passed by learned Additional Rent Controller does not suffer from any illegality, perversity or error of jurisdiction. The learned ARC had upheld the claim of the respondent after properly appreciating the evidence on record and had come to the conclusion that the respondent was in bonafide need of the premises in question. There are no good grounds for taking a different view in the matter.
11. In the result it is held that there are no goods grounds for interfering with the impugned order.
12. The petition stands dismissed.