Delhi District Court
Sh. Varinder Paul vs Smt. Kavita Seth on 22 January, 2007
IN THE COURT OF SH. S.S. MALHOTRA : ADDL. RENT
CONTROLLER : KARKARDOOMA COURTS DELHI.
Suit No. E 77/06
In the matter of :-
Sh. Varinder Paul
S/o Sh. Shiv Dutt Paul,
R/o Village and P.O. Bir,
Tehsil Baijnath,
Distt. Kangra, H. P.
....... Petitioner
Versus
Smt. Kavita Seth
W/o not known,
R/o 108-C, MIG Flats,
Pocket A & B, Dilshad Garden,
New Delhi.
....... Respondent
Date of judgment : 22.1.07
1. By this judgment I shall dispose off the petition of the petitioner under Section 14(1)(e) r/w Section 25-B of Delhi Rent Control Act for evicting the respondent from the tenanted premises i.e. MIG (DDA Flat), comprising of two bed rooms, one drawing room, kitchen, bathroom, latrine and balcony bearing Flat No. 108/C, MIG Flats, Pocket A & B, Dilshad Garden, Delhi, as shown red in the site plan, hereinafter called the suit property.
2. Brief facts stated by the petitioner in the petition are that he is the owner/landlord and respondent is tenant under him in respect of suit premises @ Rs. 1100/- p.m., excluding electricity and water charges by way of oral agreement and the respondent is residing in the tenanted premises with her family members. It is further submitted that petitioner was allotted said flat by DDA and now the petitioner requires the suit premises bonafide for the purpose of his residence and for the purpose of residence of his family members who are dependent upon him and he has no other reasonably suitable residential accommodation for his use or for the use of his family members in Delhi except the tenanted premises. It is further submitted that petitioner is an old man of 67 years of age and is retired Govt. servant and is suffering from heart disease and other ailments and he has been getting treatment at various places as the place where he is presently residing is a small village having no medical facilities and a such he has to come to Delhi for his medical treatment and he has to incur a lot of expenses for staying in hotels as he has no sufficient or suitable accommodation for his residence at Delhi except the suit premises, which is in occupation of the respondent. It is further submitted that he intends to stay in Delhi and further his son namely Anupam Paul has also started doing his service with Shiv Tourist India having it office at Taj Palace Hotel, Diplomant Enclave, S.P. Marg, New Delhi and at present the said son of the petitioner is residing in a rented accommodation at Pocket A, 83A, DDA Flats, Ashok Vihar, Phase-II, Delhi-110052 @ Rs. 2000/- p.m. out of his salary and he is also facing great hardship and inconvenience.
It is further submitted that said son of the petitioner is of marriageable age and his marriage is being postponed because of the non-availability of the residential accommodation and for that reason also the petitioner requires the suit premises for himself and for the residence of his family members, including his real son namely Anupam Paul. It is further submitted that petitioner would be residing in Delhi alongwith his wife and children as the assistance of his wife is required to attend him because of the diseases with which the petitioner is suffering from. In these circumstances, it is prayed that eviction order in respect of suit premises be passed in favour of the petitioner and against the respondent.
3. The respondent was ordered to be served under Schedule III of DRC Act and the respondent filed an application seeking leave to contest the petition and after hearing Ld. counsel for the petitioner, application seeking leave to contest the present petition was allowed vide order dt. 7.10.04 and as such respondent was directed to file written statement. The respondent has filed written statement taking various preliminary objections that there is no cause of action for filing of the present petition, the premises is not required by the petitioner bonafide for his own use or for the use of his family members, the premises has been let out for residential-cum-commercial purpose and is being used accordingly since the inception of tenancy and It is further submitted that that husband of the respondent Sh. Nalin Seth is double M.A., Ph.D and is running the coaching institute by the name and style of M/s Urvashi I.A.S. Study Circle in the tenanted premises and the said institute presently has enrolled 21 students and the petitioner is well aware of this fact and therefore the petition is not maintainable. It is further submitted that the petitioner has not disclosed any fact which may suggest his bonafide need for the tenanted premises as the petitioner has only stated that he is suffering from some heart ailments without specifying the name, nature and period of the said ailment. The medical record filed by the petitioner discloses that petitioner is getting regular treatment in Himachal Pradesh and Chandigarh etc. but no record has been placed to establish that he is undergoing medical treatment in Delhi and therefore the plea taken by the petitioner is bald. It is further submitted that no document has been filed on record to show that petitioner have been stying in hotel in Delhi for the purpose of getting his treatment in Delhi. It is further submitted that son of the petitioner is not dependent upon him for the residential or financial purpose and has set up a separate accommodation for himself and therefore, he cannot pray for eviction on the ground of need of his son and It is further submitted that son the petitioner is not working in Delhi and is not residing in the rented accommodation and even otherwise the petitioner is having suitable and sufficient alternative accommodation in Delhi in the form of a house at Alaknanda and at Mehrauli, which he has not been disclosed by the petitioner and therefore, there is no bonafide on the part of the petitioner. It is further submitted that the only intention of the petitioner is to get the premsies vacated and to sell the same to some other person. In fact, the petitioner offered to sell the premises to the respondent for Rs. 3.75 lacs but when the respondent arranged the said amount, the petitioner did not act on his offer to sell the property and therefore, there is no bonafide requirement of the petitioner for his residence or for the residence of his family members who are settled in Kangra. It is further submitted that complete documents have not been supplied to the respondent and therefore, the respondent cannot be made to suffer because of non-supply of documents by the petitioner, accordingly it is prayed that petition of the petitioner may kindly be dismissed.
On merits, relationship of landlord and tenant and rate of rent are not disputed. But it is denied that it was let out for residential purpose and it is submitted that premises was let out for residential-cum-commercial purpose and the same is being used for the same purpose since inception of the tenancy. It is denied for want of knowledge that petitioner is owner of the suit property or that the same is required bonafide by the petitioner for himself or for his family members or that he does not have any reasonably suitable residential accommodation except the tenanted premises as alleged or that he is 67 years of age or that he is a retired Govt. servant or is suffering from heart disease and other ailments or even he is receiving treatment from various hospitals including Delhi, as alleged. It is further submitted that petitioner is trying to create a false ground for eviction against the tenant because the entire documents filed by the petitioner with regard to his treatment mention nowhere that he has ever visited or advised to visit Delhi for his treatment nor he stayed in any hotel in Delhi as alleged. It is also denied that son of the petitioner Sh. Anupam Paul has started doing his service with Shiv Tourist or that at present he is residing at rented accommodation as alleged. It is also denied that marriage of the son of the petitioner is being postponed because of non-availability of the residential accommodation as alleged or that for this reason the petitioner requires the said accommodation or that the petitioner or his wife intends to shift to Delhi for the purpose of alleged treatment. The facts with regard to arrears of rent are stated to be matter of record and in these circumstances, it is prayed that petition of the petitioner may kindly be dismissed.
4. The petitioner has filed replication, in which he denied the contents of the written statement and reaffirmed and reiterated the facts as mentioned by him in his petition. It is specifically denied that the premises has been let out for residential-cum-commercial purpose or the same is being used for such purpose. It is also denied that the husband of the respondent is running a coaching institute under the name and style of Urvashi IAS Study circle in the tenanted premises, as alleged. It is also denied that the petitioner is not in bonafide requirement of the tenanted premises or that he has other alternative accommodation at Mehrauli or at Alaknanda and it is submitted that except the suit premises, the petitioner is not having other accommodation in Delhi. It is also denied that the petitioner is not suffering from heart disease or that his treatment is not required at Delhi as alleged and it is submitted that the allegations of the respondent is quite vague. It is also denied that the petitioner ever offered to sell the suit premises for a sum of Rs. 3.75 lacs to the respondent or that later he retracted from his offer as alleged and therefore, it is prayed that written statement of the respondent may kindly be not considered and petition of the petitioner may kindly be allowed and eviction order be passed in favour of the petitioner and against the respondent.
5. The petitioner has examined himself as PW1 and Sh.
Anupam Paul, son of the petitioner as PW2. The respondent on the other hand has filed evidence of herself as RW1 and evidence of her husband Sh. Nailin Seth as RW2.
The petitioner in his affidavit has deposed in terms of his petition and has deposed that he is owner/landlord of the tenanted premises. The said property was allotted to him by DDA and acknowledgment receipt issued by DDA is Ex. PW1/2, another receipt issued by DDA is Ex. PW1/3, challan regarding deposits with DDA is Ex. PW1/4 which bears his signature at point A, copy of letter dt. 17.9.02 issued by DDA is Ex. PW1/5, copy of challan by which the deponent deposited Rs. 81,987/- with the DDA is Ex. PW1/6, copy of allotment letter dt. 31.8.87 is Ex. PW1/8. He further deposed that deponent is owner of the suit premises and the same was let out to respondent @ Rs. 1100/-, exclusive of other charges for the purpose of residence only and he is an old man of more than 65 years of age and is a retired Govt. servant and suffering from heart disease and other ailments i.e. hypetension, type-2 diatetes, melititees, ratinopathy, Nephropathy etc. since 2000 and he remained admitted and went through medical treatment in Himachal Pradesh as well as in Chandigarh and all the medical documents / record is Ex. PW1/10 collectively. He resides in a small village called Bir, but there is no medical facility available there and therefore he had to come to Delhi for his medical treatment. The O.P.D. Card issued by the doctors of Sir Ganga Ram Hospital, New Delhi is Ex. PW1/11 and the deponent was also examined by the Doctors of AIIMS Hospital on 19.5.05 and the certificate issued by the doctors of AIIMS is Ex. PW1/13. It is further submitted that he requires the tenanted premises for himself and for his son who is at present serving with Shiv Tourist India, New Delhi and his son is also of marriageable age and he has generally deposed on the lines of his petition.
Similarly, PW2 has filed his affidavit who has deposed that deponent is son of the petitioner and his father is owner and landlord of the tenanted premises, he himself has joined M/s Shiv Tourist India, Hotel Taj Palace, Diplomat Enclave, S.P. Marg, New Delhi since March, 03 at the monthly salary of Rs. 6000/- p.m. and he has no residential place to live in Delhi and as such he resides in the tenanted premises and the said tenanted premises is quite meager and he alongwith his father and mother cannot stay in such accommodation and therefore, the same is causing great hardship to the petitioner as well as to him and he further deposed that petitioner does not have any other reasonably suitable residential accommodation in Delhi except the tenanted premises. He has filed a certificate issued by his employer, Ex. PW2/1. He further deposed that he is dependent upon his father for the residence purpose and therefore, the tenanted premises required by his father for the purpose of residence for himself and for the purpose of residence for his family members.
6. Both the PW's tendered their evidence on 18.1.06. Ld. counsel for the respondent was not present on 18.1.06 despite waiting upto 12.25 p.m. and rather he sent medical certificate seeking adjournment on the personal ground and on this request, matter was adjourned for 21.1.06. Even prior to that Ld. counsel for the respondent was not present in the court on the ground that he was under the impression that matter was likely to be fixed for further proceeding since the same has been received by way of transfer to this Court only on that date. However, Ld. counsel for the respondent was not present even on 21.1.06 on which date again the request for adjournment was made by the respondent without any application and medical certificate. The petitioner also stated that he is about 64 years old and suffering from renal failure, but in the interest of justice, one more opportunity was granted to the respondent to cross examine the petitioner and matter was adjourned for 22.2.06. On 22.2.06, respondent was not present upto 1.05 p.m. and the matter was kept for 2.00 p.m. But the respondent was not even present on that time. In these circumstances, opportunity of the respondent to cross examine PW1 and PW2 was closed and evidence of the petitioner was closed. The respondent was simultaneously given an opportunity to lead his evidence for 14.3.06 and the respondent's evidence was also closed on that date and the matter was fixed for final arguments. Arguments by Ld. counsel for the petitioner were heard and meanwhile the respondent filed an application U/s 151 CPC for setting aside order dt. 22.2.06 by which opportunity of the respondent to cross examine PW's was closed and the said application was dismissed vide order dt. 29.5.06. The respondent however, has also filed another application for setting aside order dt. 14.3.06 by which respondent evidence was closed and this application was allowed and he was allowed to lead his evidence and the matter was fixed for 24.7.06 and as such it is matter of record that there is no cross-examination of PW's on record.
7. The respondent in her evidence has deposed in terms of her pleadings and she has deposed that premises is question have been let out to the respondent for residential- cum-commercial purpose and the same is being used for the said purpose since inception of the tenancy. The husband of the respondent Sh. Nalin Seth is double M.A., Ph.D and is running a coaching institute under the name and style of M/s Urvashi I.A.S. Study Circle in the tenanted premises, which at present has 21 students enrolled. The petitioner otherwise is havingsuitable and sufficient alternative accommodation in Delhi in the form of a house at Alaknanda and Mehrauli which he has not disclosed and the only intention of the petitioner is to get the tenanted premises vacated from the deponent and to sell the same to other person at higher rates as he earlier even offered the respondent to sell the suit premises for a sum of Rs. 3.75 lacs, but when she arranged for the same, the petitioner did not act on his offer and therefore, the premises is not required by the petitioner for residential purpose at all.
RW1 was cross examined and in her cross-examination she deposed that she met her counsel to prepare Ex. RW1/A for about 4/5 month back but she again told the court it was prepared by her counsel many days back but she had come only today to sign the same because her father was in hospital. She has denied that it has been signed in the court premises today or that she never signed in the register of the Oath Commissioner. She further deposed that she has left her job about a year back and she was doing the job in Indian Hotel Company having its office at Taj Palace Hotel, Dahula Kuan, New Delhi and her salary was Rs. 6000/- p.m. but she has left the job now. She further deposed that her working hours were depending upon shift which was of 8 hours and she used to take 45 minutes to reach her office from the residence. She has admitted the site plan. She has also admitted that suit property was let out to her for residential purpose. But she again said that it was let out for residential as well as for residential-cum-commercial and coaching. Institute was being run by her husband and she used to help him as she is also assisting in teaching there. She has also deposed that she told this fact to his counsel when the respondent's counsel prepared the written statement that she used to assist her husband in teaching, but she cannot tell as to whether this fact has been mentioned in the written statement or not. She further deposed that she must have signed written statement after going through the same. She again admitted that this fact has not been mentioned in the entire written statement, but she denied the suggestion that she has concocted this part of the fact only to show that the premises under the occupation be not vacated. She further deposed that she has not filed any documentary to show that educational institute is being run in the suit premises and also denied that she did not have any document because no such institution is being run in the said premises. She further submitted that it is not registered from anywhere. She also denied the suggestion that since the property was let out for residential purpose, the question of running institution does not arise. She has also admitted that suit property is situated in residential area. Regarding alternative accommodation, she has deposed that it is very difficult to ascertain as to where and what is the number of the other properties of the petitioner in Delhi but she volunteered submitted that she will try to ascertain the same. She denied the suggestion that petitioner does not have any alternative suitable residential accommodation in Delhi. She also denied the suggestion that petitioner never offered her for selling of the premises for a sum of Rs. 3.75 lacs. She admitted that she does not have any documentary proof that she was offered or she ever arranged the said amount, but she deposed that she can produce later on. Regarding medical documents of the petitioner, she deposed that she does not have any personal knowledge of the treatment given to the petitioner at Delhi. However, she personally knew that petitioner had been getting medical treatment in Chandigarh. She denied the suggestion that petitioner requires treatment from Delhi. She also denied that petitioner has not been residing in rented accommodation for the last some year and getting treatment in Delhi. The fact with respect to filing of the separate petition for recovery of rent is admitted as matter of record. She denied the suggestion that she is deposing falsely.
8. RW2, husband of the respondent has deposed in his evidence that he is husband of the respondent and is well conversant with the facts of the case. The premises in question have been let out to the respondent for residential- cum-commercial purpose and the same is being used accordingly since inception of tenancy. He further deposed that he himself is running a coaching institute by the name and style of M/s Urvashi I.A.S. Study Circle in the tenanted premises. It is further submitted that petitioner have another suitable and sufficient alternative residential accommodation in Delhi in Alaknanda and at Mehrauli, which the petitioner has not disclosed and only intention of the petitioner is to get the tenanted premises evicted and to sell the same at higher rates. He further submitted that the petitioner even offered to sell the suit premises for a sum of Rs. 3.75 lacs to the respondent and when his wife arranged the said amount, the petitioner did not act on his offer and therefore, it is clear that the petitioner does not require tenanted premises. The fact with respect arrears of rent are not relevant to be discussed in this petition. He further deposed that he and his wife has no other accommodation in Delhi.
He was cross examined and in his cross-examination, he deposed that affidavit has been prepared by his counsel and he never met his counsel for preparing Ex. RW2/A prior today. It was typed only today in between 11.00 to 12.00 noon. He also deposed that he does not have any knowledge regarding content of the same and he has signed the same only at the instruction of his counsel. He was married to respondent in June, 89 and at that time she was doing job but now she has left the job. He also admitted that his wife in job from the date of his marriage till last year and the property was let out to his wife by the petitioner and no agreement was executed in between his wife and the petitioner. He also admitted as correct that property in dispute has been allotted to the petitioner by DDA and the same is situated in residential area and he did not have any documentary proof that whether he is M.A. or has completed his Ph. D. He does not have any documentary proof whether this M/s Urvashi IAS Study Circle which is stated to be a coaching institute exist in the tenanted premises. But he admitted that said coaching center is not registered anywhere. He also does not have any documentary proof that it has enrolled 21 students. However, he denied that no such institute exist in the tenanted premises. He further submitted that premises was let out in his presence to his wife but he denied that it was let out for residential purpose. He also denied that the same was ever let out for commercial purpose. He did not have any personal knowledge about illness of the petitioner or that the petitioner is residing in the rented accommodation with his son. He denied the suggestion that the petitioner requires the tenanted premises for his residence or that he has no alternative residential suitable accommodation in Delhi for his residence or the same requires bonafide by the petitioner. He denied the suggestion that the petitioner never had any intenion to dispose of the property in dispute to them or that the story of selling at the amount of Rs. 3.75 lacs has been concoted by them. He deposed that he has documentary proof to that effect but the same does not bear the signature of the petitioner.
9. I have heard the arguments advanced on behalf of both the parties and perused the record.
10. In order to claim eviction U/s 14(1)(e) read with section 25(B) of the DRC Act , a landlord has to plead and prove the followings ingredients:-
a. that he is owner/landlord of the suit
premises;
b. that the suit premises were let out for residential
purposes;
c. that the petitioner has no other reasonably
suitable residential accommodation; and
d. that the premises are required bona fide by the
petitioner for occupation as residence for himself or for any member of his family dependent upon him for the purpose of residence.
11. As far as the first ingredient as to whether the petitioner is owner/landlord of the suit premises is concerned, the petitioner has submitted in his petition that he is landlord/owner of the tenanted premises as the same was allotted to him by DDA. The respondent in his written statement has stated that he is not owner of the tenanted premises as the petitioner has no strict proof thereof. The petitioner in his evidence has deposed that he is owner of the tenanted premises which is a DDA Flat and the allotment letter thereof is Ex. PW1/9. He has also proved various other documents like Ex. PW1/2 to PW1/8 which are challan regarding deposit of amount with DDA and certain other correspondence. Challan Ex. PW1/6 is particularly with respect to depositing the amount of Rs. 81,987/- with the DDA. There is no cross examination of this witness on this aspect and RW1 in her evidence has not denied the ownership of the petitioner. Rather, in the written statement and in the evidence she has deposed to the extent that the petitioner has offered her to sell the suit property for an amount of RS. 3.75 lacs. Although, she has submitted when she arranged money, the petitioner did not act on his offer, yet one fact is clear that it is only the owner who can sell the property to the respondent. If the petitioner would not have been the owner of the property, respondent would not have arranged Rs. 3.75 lacs for purchasing the suit property from the petitioner on his alleged offer. This fact in itself implies that petitioner is owner of the property. Further, RW2 in his cross examination specifically admitted that property in dispute has been allotted to the petitioner by DDA. Ld. counsel for respondent however argued that respondent has not proved the original allotment letter in accordance with law and in absence of proving allotment letter, the petitioner cannot be held to be owner of the property. This contention of Ld. counsel for respondent has no force as firstly the petitioner has deposed in evidence that he is owner of the property and there is no cross examination of the petitioner and secondly, the respondent has admitted in her own evidence as well as written statement that the petitioner is allotted the suit property by DDA and further more important, it is well settled that the test of proving the ownership is not as strict as it is generally in the Civil Suit where title is to be proved. In Rameshwar Narain (deceased) through LR's vs. Sarla Sarin, 46 (1992) DLT 70, wherein it was held that word "owner" u/s 14(1)(e) of DRC Act, 1958 does not meant absolute owner. In B.K.Gupta Vs. Sudarshan Chaudhary, 2000(1) RCR 53, it was held that the premises were alloted to the landlord by the government on hire purchase basis and the landlord has given the premises on rent. It was held that tenant can not claim that the landlord was not owner of the suit property. In Smt. Parvati Devi Vs. Mahinder Singh, 1996(1), AIRCJ, 583, it was held that for the purpose of this provision the question of title has to be viewed in light of the fact that tenant is not rival claimant of title. In Satya Malhotra Vs. Mohinder Singh Arora, 1997(2) RCR 645, it was held that in a case U/s 14(1)(e) of the DRC Act, it was held that rent court is not court to decide title of the parties and that the tenant cannot challenge title of subsequent purchaser. Accordingly, it is held that the petitioner is owner / landlord of the suit property.
12. Now coming to the aspect whether suit premises was let out for residential purpose. The petitioner has submitted in his petition that he has let out the premises for residential purpose. The respondent in his written statement has denied this fact and has stated that the premises was let out by the petitioner to the respondent for residence-cum-commercial purpose and the husband of the respondent who is double M.A., is running a coaching institute by the name and style of M/s Urvashi I.A.S. Study Circle and the same is being used by the respondent for residence-cum-commercial purpose since very beginning. The petitioner in his evidence has deposed that premises was let out by the petitioner to the respondent for residence purpose. There is no cross-examination by the respondent on this aspect. The respondent in her evidence has deposed that premises have been let out to the deponent for residence-cum-commercial purpose and the same is being used accordingly. She was cross examined on this aspect by the petitioner. She admitted that she was doing a job in Indian Hotel Company upto the year 2005. She admitted the suggestion that it was let out for residential purpose, but again she submitted that it was let out for residential- cum-commercial purpose. She further deposed that institute was being run by her husband and she used to help him and she was also teaching and she told her counsel this fact. It is admitted that neither in the written statement nor in her evidence she has submitted anything with respect to the fact that she was also teaching or she was running any coaching institute or she was ever helping her husband, despite the fact that written statement has been signed by herself after going through the same. This is an improvement in the evidence and therefore, this fact cannot be given any appreciation. She further deposed that she has not filed any documentary proof to show that an educational / coaching institute is being run in the tenanted premises. She has also deposed that institute is not registered from anywhere. She admitted that the suit premises was allotted to the petitioner by DDA and it is situated in the residential area. Similarly, RW2 in his cross-examination has submitted that property in dispute was allotted by DDA and it is situated in residential area and he does not have any documentary proof to show that he is double M.A. or he has completed his Ph. D or he is running a Coaching Institute in the tenanted premises and he only denied the suggestion that it was not let out for residential purpose. He has also denied the suggestion that it was let out for commercial purpose.
The burden to prove this fact was upon the respondent that premises was let out for residence-cum-commercial purpose and the petitioner has to prove only that it was let out for residential purpose. The premises is situated in residential area and it is not the case of the respondent at any point of time that she herself is doing some commercial activity in the tenanted premises. Firstly, the respondent has totally failed to prove that premises was let out for residential-cum-commercial purpose to her and even if this part of the argument of the respondent is considered to some extent, then it is clear that the running of the commercial activity by husband of the tenant is not permissible at all. Even otherwise, she has also totally failed to prove that she or her husband had ever run any coaching/educational institute. The respondent deposed that there are 21 numbers of students are enrolled in the said institution. There is no name given of any student on the court record. The said institution is not otherwise registered and even further the husband of the respondent who alleged to be double M.A., Ph. D has no document to show that he has any such degree of double M.A. or having any such degree of the Doctorate. Even it is no mentioned that in which stream, the husband of the respondent has completed double M.A. or on which subject he has written the thesis for completion of his Ph. D. It appears to the court that all the facts have been stated by the respondent in the air. No documentary proof e.g. Income tax return, bank account and even no visiting card has been filed on record to show that any institution might have been run / is being run by the husband of the respondent. Further, the explanation as appended U/s 14(1)(e) of the DRC Act makes it clear :-
For the purpose of this clause, premises let for residential purposes include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes. Further, it is now well established that respondent has failed to prove that her husband had been running any coaching/educational institute and even further the explanation makes it clear that if a premises have been let out for residential purpose and the respondent / tenant uses the same incidentally for commercial purpose without consent of the landlord, then it would be deemed to that it has been let out for residential purpose. Law on that aspect is further clear. In Sh. B. Banerjee vs. Shri Romesh Mahajan, 1996 IV AD (Delhi) 49 it was inter alia, held that the question as to for what purpose the premises was let out, for that we have to see the purpose when the premises was let out. In M/s Precision Steel &Engineering works Vs. Prema Deva Niranjan Deva Tayal 2003(1), RCR 48(SC) the Hon. Supreme Court dealt with the purpose for which the premises are let out, in case U/s 14(1)(e) of the DRC Act at length and,inter-alia, held that:-
"In our opinion the expression "the premises let for residential purposes" should be construed liberally and not technically or narrowly; meaning thereby, where the premises are solely let for residential purpose they are undoubtedly covered by Section 14(1) (e) but even when the premises are let out for composite or mixed purpose if the predominant or main purpose of letting is for residential purposes, the same would be included within the expression"the premises let for residential purposes / An incidental, a secondary or unauthorized user of the premises for purposes other than residence would not take the premises out of the meaning of the expression" the premises let out for residential purposes.
Admittedly, it is not the case of the petitioner / respondent at all that it was let out for commercial purpose. Rather the claim of respondent is that the respondent's husband has been using it for running a coaching center since inception of tenancy. It is admitted fact that premises was not let out to the husband of the respondent. In the present case, even it has not been stated by the respondent as to on which date she started this activity. Therefore, from all this fact, the petitioner has been able to prove that premises was let out for residential purpose.
13. Now coming to the aspect as to whether that the premises are required bona fide by the petitioner for occupation as residence for himself or for any member of his family dependent upon him for the purpose of residence. The petitioner in his petition has submitted that he is suffering from heart diseases and various other ailments and he used to visit Delhi and then he had to stay in hotel whenever he come for his treatment and further his son is of marriageable age and he is serving in Delhi with Shiv Tourist India having it office at Taj Palace Hotel, Diplomant Enclave, S.P. Marg, New Delhi and he is getting Rs. 6000/- p.m. as salary and he is compelled to live in rented house and he is making rent @ Rs. 2000/- p.m. Similarly, PW2 has deposed that he himself is working in Shiv Tourist India having it office at Taj Palace Hotel, Diplomant Enclave, S.P. Marg, New Delhi and is residing in rented premises. There is no cross-examination on this aspect. The respondent on the other hand has stated that the suit premises is not required by the petitioner bonafide and he wants to get the property evicted and he once offered to sell the suit property to the respondent for the consideration of Rs. 3.75 lacs, but when the respondent arranged it, the petitioner did not remain strict to his offer and as such the suit premises is not required bonafide by the petitioner or for the purpose of his residence of his family members. The respondent has not been able to say anything in her evidence with respect to the alleged transaction, neither she filed any document to prove that petitioner has offered her property for the consideration of Rs. 3.75 lacs and RW2 has even gone to the extent of saying that he has documentary evidence to prove this fact, but he has not brought the same. When he was cross examined further, he deposed that such writing does not bears the signature of the petitioner. Secondly, it is clear that the respondent has not been able to prove her part of the contention that petitioner has ever offered her selling of this property for the consideration of Rs. 3.75 lacs or the same were arranged by her at the relevant time. The allegations otherwise is quite vague when respondent states that the petitioner earlier offered her the said property for sale, when it was so stated has not been mentioned in the written statement or evidence. As far as, the bonafide need of the petitioner is concerned, number of medial documents have been put on record by the petitioner. The respondent even has admitted in his cross- examination that petitioner remains ill. However, her suggestion is that petitioner is getting treatment from Chandigarh and from Himachal Pradesh. The petitioner on the other hand has argued that the petitioner is suffering from various ailments and a per Ex. PW1/11 which is an OPD Card issued by Sir Ganga Ram Hospital and a per Ex. PW1/13, which is issued by AIIMS, it is clear that petitioner had been getting treatment from Delhi. This part of the contention of respondent therefore, false flat. Even otherwise the respondent cannot dictate the terms to the petitioner to get the treatment from particular place or to live in a particular manner or to live in a rented accommodation. The law with respect to bonafide requirement is well settled.
Bona fide means genuine that is done or carried out in good faith. It was observed in Lalit Kumar Vija Vs. Saroj Kumari 1969 RCR 555.
"The meaning of bona fide in this context appears to be two fold. Firstly, the need must be a genuine one and not a frivolous one. The second aspect of the bona fide is that the landlord is not motivated by extraneous consideration in trying to recover the possession from the tenant"
In Om Prakash Singhal Vs. Roshan Lal Khana, 1969 RCR 391, it was observed :-
"As a broad workable rule, the landlord must be left to assess his requirement in the background of his position , circumstances, status in the life and social and other responsibilities and relevant factors. "
In judging his special needs and convenience certainly the landlord would have a choice. This does not ,however, mean that whatever the landlord decides about his own needs would be beyond question by the Rent Control Authorities. For, whether the need of the landlord is bona fide is to be judged not by the landlord himself but by the Controller. In Neta Ram Vs. Jeewan Lal , AIR 1963 (SC) 499, it was observed that a clear distinction has to be borne in mind that what the provisions refer to is the bonafides of the claim of the landlord and not the bonafides of the landlord. The distinction between the two lies in the fact that the landlord may honestly feel the requirement but it is not borne out by pleadings and surrounding circumstances. In the circumstance, the claim would not be genuine although the landlord's bonafides exist. According to this distinction, even if bonafides., the landlord's requirements has to be reasonable. The controller has to be satisfied about the genuineness of the claim. To reach this conclusion, obviously the Controller must be satisfied about the reality of the claim made by the landlord, and this can only be established by looking at all the surrounding circumstances. In determining whether the claim is bona fide, the court is entitled and indeed bound to consider whether it is reasonable. The time honored notion that the right of re- entry is unfettered and that the owner landlord is the sole judge of his requirement has been made to yield to the needs of society which had to enact the Rent Acts specifically devised to curb and fetter the unrestricted right of re-entry and to provide that only on proving some enabling grounds set out in the Rent Act the landlord can re-enter . One such ground is of personal requirement. The convenience of the landlord, though not a matter exclusively within his discretion, cannot be totally ignored. The choice made by the landlord is open to scrutiny.
In the present matter, it is also not disputed that son of the petitioner is of marriageable age. If the petitioner himself is alone, it cannot be presumed that he may not be requiring the assistance of his wife to take care of him. Therefore, it is held that the petitioner requires the suit property bonafide for the purpose of residence of himself and for the purpose of residence of his family member who are dependent upon him for the purpose of residence.
14. Now coming to ingredient which the petitioner has to prove that the petitioner has no other reasonably suitable residential accommodation. The petitioner has deposed in his evidence that he does not have any reasonably suitable residential accommodation in Delhi except the suit premises. The respondent in his written statement and even in her testimony has deposed that petitioner also has property at Alaknanda and Mehrauli. Definitely, she has not given any number of the said properties. In M/s Precision Steel &Engineering works Vs. Prema Deva Niranjan Deva Tayal 2003(1), RCR 48(SC) it was inter alia held that the plea of having alternative accommodation by the landlord is generally taken by the respondent / tenant to delay the proceedings and the Court had to be vigilant and must take care that respondent must give proof and number of particular accommodation which according to him is with the petitioner / landlord. In view of the aforesaid, it is therefore, held that the respondent has not been able to prove that the petitioner have property at Alaknanda or at Mehrauli.
It is also well settled that an accommodation to which the petitioner has no legal right to reside, cannot be considered as an alternate accommodation available to him. The landlord must have a legal right and if he has no legal right, the availability of accommodation at the mercy of somebody else cannot be held to be a suitable accommodation. If the landlord resides in the premises of another on leave and licence basis, he cannot be said to be in possession of reasonably suitable residential accommodation as it was held in Sh. Kishan Lal V. Rajan chand Khanna, 1993(1)Delhi lawyer 350). In M/s Jagtjit Industries Ltd., V. Rajiv Gupta, 1980 (2) RCJ 769 (Delhi), it was held that where the landlord resides with his father on leave and licence basis and is asked by his father to shift to his own property, he cannot be said to be in occupation of reasonably suitable residential accommodation. Therefore, in view of the aforesaid, the court is of the considered opinion that the petitioner have been able to prove that he has no other reasonably suitable residential accommodation except the suit property in Delhi.
15. Ergo, the petitioner has been able to prove his case U/s 14(1)(e) of the DRC Act. Consequently, eviction order is hereby passed in favour of the petitioner and against the respondent in respect of the suit premises i.e. MIG (DDA Flat), comprising of two bed rooms, one drawing room, kitchen, bathroom, latrine and balcony bearing Flat No. 108/C, MIG Flats, Pocket A & B, Dilshad Garden, Delhi, as shown in red colour in the site plan, Ex. PW1/A. However, this order shall not be executed and the respondent shall not be evicted from the suit premises before expiry of a period of six months from today. The respondent is directed not to part with possession of the suit property in favour of any third party or cause any damage to the same and to continue to make regular payment of rent etc. to the petitioner. No order as to cost. File be consigned to the Record Room.
(S. S. Malhotra)
Addl. Rent Controller,
Announced in the open Karkardooma Courts,
court today i.e. 22.1.07 Delhi.