Delhi High Court
O.P. Soni vs Om Kumar And Anr. on 17 August, 1995
Equivalent citations: 1995IIIAD(DELHI)721, 60(1995)DLT30, 1995(35)DRJ56
Author: Arun Kumar
Bench: Arun Kumar
JUDGMENT Arun Kumar, J.
(1) This is tenant's petition under Section 25B(8) of the Delhi Rent Control Act (hereinafter referred to as the Act) challenging the eviction order passed against him by the Addl. Rent Controller. The respondents landlords had instituted an eviction petition against the petitioner herein in the year 1984 under clause (e) of the proviso to Sub-section (1) of Section 14 of the Act which was ultimately allowed by the Addl. Rent Controller vide the impugned judgment dated 9th March 1994 (2) The necessary facts are that the property in suit was purchased by the respondents vide registered sale deed dated 27th February 1979. The father of the respondents, namely, Dr.Harikishan Dass Nanda retired from Govt. service as A.D.M.O., Central Hospital, Northern Railway in the year 1976. Until his retirement he had a government bungalow provided to him as part of his service by the Govt. He was residing in the said bungalow Along with his family consisting of himself, his wife, four sons (out of whom two are the respondents) and a daughter. After his retirement the father had to vacate the Govt. accommodation and he first rented a premises in New Rajinder Nagar, Delhi, where he started living Along with his entire family. After the purchase of the present property in the year 1979 the entire family shifted to the property in suit. They got vacant possession of the ground floor of the property at the time of its purchase because on the first floor the present petitioner was already a tenant. On the second floor there was another tenant. The property was purchased by the two brothers who are respondents herein for the benefit of the entire family of their parents and the family did not own any other property at the relevant time. The respondents had to wait for five years after the purchase of the property in view of the statutory provision contained in the Act. The present eviction petition was filed on 3rd April 1984. At the time of institution of the eviction petition, the entire family consisted of the aged parents of the respondents, respondent No.1 having a wife and two daughters. Respondent No.2 having a wife and two daughters. The other two brothers, namely,Ashok Kumar and Kamal Kumar were also married having two children each. There is no serious dispute about the accommodation available with the respondents/landlords on the ground floor of the property in suit which consists of two bedrooms, a drawing-cum-dining room, a store, kitchen, bath and W.C. (3) In the impugned judgment the Addl. Rent Controller found that the respondents are owners of the property in suit. There is no dispute in the present case about letting purpose of the premises. The Addl. Rent Controller further found that the premises under the tenancy of the petitioner herein is bona fide required by the respondents for their residence and the residence of their family members dependent upon them. Accordingly an eviction order was passed.
(4) Mr. Mukul Rohatgi, learned counsel for the petitioner has mainly urged the following grounds in support of his contention that the eviction petition in the present case is liable to be dismissed:- (1) The petition is not bona fide. It is a case of deliberate concealment of availability of accommodation in the shape of another property owned by the other two brothers of the respondents. The respondents knew about the said property and the said fact was deliberately concealed from the Court, therefore, it is not a case of the landlords acting bona fide and the petition is, therefore, liable to be dismissed. Mala fides on account of concealment of facts is also alleged on the basis that respondent No.1 filed an application on 31/1/1995 in this Court (C.M. 531/95) under Order 41, Rule 27, Civil Procedure Code . alleging that he has been transferred to Delhi and, therefore, is in immediate need for accommodation of the premises in suit on account of this fact. According to the petitioner/tenant much before the date this application was filed, respondent No.1 had already applied for allotment of Govt. accommodation and this fact was deliberately concealed from the Court. In fact now he has been allotted Govt. accommodation at Moti Bagh which he has already occupied Along with his family. (2) The respondents, in view of the latest position about the facts on record, have sufficient accommodation available to them in the property in suit and, therefore, also the petition is liable to be dismissed. (3) In the alternative the learned counsel urged that the case be remanded to the Addl. Rent Controller for further evidence on the point of availability of accommodation in House No.B-11, Anand Vihar, Delhi. In support of his first contention the learned counsel for the petitioner has drawn my attention to the eviction petition filed by the respondents in the present case. It is stated in the eviction petition that the property in suit had been purchased for the benefit of the whole family of the petitioners' father Dr.Harikishan Dass Nanda. It is further stated therein that neither the petitioners nor their father nor any other family member own any other property and the house in question is the only house for the residence of the family. Further my attention has been drawn to the statement of Dr.Harikishan Dass Nanda, PW-1, father of the respondents, who appeared as their attorney in support of their case. He stated that the premises was required for residence of the petitioners and the entire family. The premises was purchased for the benefit of the entire family comprising of the families of petitioners, their two brothers, parents and married daughter. Except the property in question the petitioner, their brothers and their parents did not own any other property. He further stated that the entire family is dependent for residence on this property owned by the respondents. He and his sons and his wife did not own any other house except the house in question owned by the respondents herein. The eviction petition bears the date 3rd April 1984 while the dates on which statement of Harikishan Dass Nanda PW-1 was recorded were 25th March 1986 and 10th April 1986. Thereafter respondents appeared as PW-2 and PW-3. The statement of respondent No.1 (Public Witness -2) was recorded on 5th October 1985 and 12th May 1992 while the statement of respondent No.2, PW-3 was recorded on 5th October 1988 and 6th August 1991. The respondents in their statements admitted that the other two brothers Ashok Kumar and Kamal Kumar owned a plot bearing No.B-11, Anand Vihar, Delhi, having area of 200 sq.yds. Ashok Kumar, one of the brothers was residing on the ground floor of the property and the first floor was rented out by the other brother Kamal Kumar. He further stated that his brother Ashok kumar shifted to ground floor of the said property in June 1986. To a further question in cross- examination he replied that "it may be correct that he shifted to the premises in April 1986".
(5) Thus according to the learned counsel for the petitioner it is a clear case of deliberate attempt to mislead the Hon'ble Court in believing that the respondents or their any other family members including brothers had no other residential accommodation available to them and that the need of the entire family of the father, i.e. the parents of the respondents and the families of their other two brothers has to be considered. The case was set up for the needs of all the family members and on the basis of a specific pleading that none of the family members owned any other property. The father of the respondents stuck to this case even though by the time he appeared as a witness, the other house had been completed. While appearing as a witness also he concealed the fact about the other house from the Court. This fact was, however, admitted by respondent No.1, therefore, on the basis of these facts on record alone the petition was liable to be dismissed as not being bona fide.
(6) In reply to this the learned counsel for the respondents submitted that at the time of institution of the eviction petition the construction of the other property had not even started. It was just a plot of land, therefore, it was not incumbent upon the respondents/ landlords to mention about the same in the eviction petition. Further it is submitted that during the course of trial of this petition the fact about the Anand Vihar property had very much come on record and the parties continued the trial on the basis that the said premises was available to the two other brothers of the respondents. This fact has been noticed in the impugned judgment of the Addl. Rent Controller also.
(7) In this connection my attention has been drawn to the order dated October 5, 1988, passed by the Addl. Rent Controller. Relevant portion of the said order is important and is reproduced herein:- "before the starting of cross- examination of petitioner PW-2, the respondents' counsel said that he may be permitted to cross the witnesses with reference to the premises B-11, Anand Vihar, Delhi, of which he came to know only recently after the filing of written statement. It was agreed to by both the counsel that the Respondents' counsel may cross the Petitioners with regard to B-11, Anand Vihar premises but the Petitioner's said that he may be permitted to re-examine the petitioners on the question of premises No.B- 11, Anand Vihar. This being subsequent event, knowledge of respondents, no formal amendment of w.s. was required. The respondent is permitted to put his case to the petitioners regarding B- 11, Anand Vihar premises. The petitioner can re-examine regarding B-11, Anand Vihar premises. To come up on 6/12/88 and 12/12/88 for R.E. x x x." On the basis of aforesaid order the learned counsel for the respondents submitted that the parties to the present proceedings went to trial with full knowledge of the premises B-11, Anand Vihar, Delhi and it cannot be said that it is a case of concealment of the said property or on account of this alleged concealment any prejudice has been caused to the petitioner herein. The petitioner herein filed an amended written statement during the pendency of the proceedings before the Addl. Rent Controller on 3/10/1988 wherein it was stated in paras 6 and 7 of the preliminary objections that "the alleged dependent family members of the petitioners own residential property bearing No.B-11,Anand Vihar, Delhi. The said property is a double storeyed residential house, the alleged dependent family members completed construction of double storey residential house and instead of occupying it the same had been let out to x x x".
(8) In the replication to the amended written statement the stand of the respondent was that the Anand Vihar property was owned by their brothers and not any dependent family members of the respondents. The ownership of the said property was thus not denied. The learned counsel for the respondents explained that in view of the order dated 5th October 1988, the respondents/ landlords were cross-examined in relation to the Anand Vihar property and they admitted that the said property was owned by their other two brothers. The plot was initially allotted by a Housing Society of the Northern Railway officers where their father was working, in the name of their father. The father gifted the said plot to the other two brothers of the respondents. The gift deed had been duly executed and acted upon and the plot stood mutated in the names of the other two brothers of the respondents. The controversy has thus to be viewed in this background. The sum and substance of the plea of the petitioner is that the allegation of mala fide is really that that the needs of the brothers who owned another property was shown Along with the need of the family of the respondents for the property in suit. To meet this allegation the case of the respondents is that on the date of the filing of the eviction petition the other property was not in existence and it was a mere plot of land. The two brothers who owned the plot were actually living in the premises in suit. Therefore, their requirement for residential accommodation was included in the eviction petition. Later developments took place during the course of pendency of the petition. The facts as they kept on changing were brought on record from time to time by the respective parties. In fact during the pendency in the present revision petition itself three applications under Order 41, Rule 27, Civil Procedure Code . have been filed out of which two are by the petitioner/tenant while one was by the respondents. The explanation about the statement of the father as PW-1 in which he maintained the stand that the suit property was required for the needs of the entire family including the other two brothers is that up to the relevant time the said brothers and their families were dependent upon the property in suit for purposes of residence. The Anand Vihar property came into existence during the pendency of the eviction petition and soon thereafter in view of the paucity of accommodation in the property in suit one of the brothers shifted to that house while the other brother who owned the Anand Vihar property got transferred outside Delhi and, therefore, he rented out his first floor portion in that house. It is further submitted that in any case since the respondents who are petitioners in the eviction petition did not dispute any facts about the Anand Vihar property and disclosed all the relevant facts during their cross-examination and re- examination as permitted by the Court, the allegation of concealment of fact does not survive.
(9) I have given my careful consideration to this aspect of the case. It is to be noted that the averment of the respondents in the eviction petition that on the purchase of property in suit, the entire family of their father, i.e. the father and mother as well as all the four brothers shifted to the ground floor accommodation available in the property at the time of its purchase is beyond dispute. Even the tenant and one of the witnesses have admitted the fact that the entire family started residing in the property in suit on the ground floor in the year 1979 after the purchase of the property in suit. It is also beyond dispute that till his retirement Dr.Harikishan Dass Nanda, father of the respondents had a bungalow allotted to him by the Govt. and the entire family was living therein. Thus it is established on record that the entire family, i.e. Dr.Harikishan Dass Nanda and his wife who are parents of the respondents herein and both the respondents and their other two brothers have been living together all along till the Anand Vihar house was constructed and one of the brothers had shifted to it on account of accute shortage of accommodation in the property in suit. The fourth brother was transferred out and, therefore, he also had to leave the property in suit. Therefore, the respondents cannot be faulted on the basis of the averments contained in the eviction petition which was filed on 3rd April 1984. It is also established on record that during the course of trial the fact about Anand Vihar property has come on record and the respondents did not dispute the same rather they disclosed all the relevant facts about the said property. Thirdly, the plea of the respondents that it is only respondents 1 and 2 who own the property in suit and so far as they are concerned neither they nor any of their dependent family members own any other property in Delhi is also important. In view of the amendment of the written statement the plea about the Anand Vihar property has become part of the pleadings. The parties have led evidence or had opportunity to lead evidence during trial as per the order of the trial court referred to above, It is an agreed order. The question is, can in these circumstances it be said to be a case of concealment of facts? To my mind the only answer is in the negative. During the course of trial the parties were fully aware of the case they had to meet. There was no element of surprise and the parties had opportunity to lead whatever evidence they wanted to lead on the point. The only thing that can be said against the respondents is about the statement of their father who appeared as PW-1, who maintained a stand that none of his sons owned any other property in Delhi. It appears that this stand was partly due to the fact that by the time he appeared as a witness the Anand Vihar property was not fully ready for residence and till then none of his other sons had shifted to that property. In any case for this the respondents cannot be thrown out of Court. The petitioner did plead about the availability of house at Anand Vihar and the respondents did accept that fact and explained it to the Court. The initial plea taken in the eviction petition was correct as per the facts existing at the time of filing of the eviction petition. Therefore, it cannot be said that the respondents who were petitioners in the eviction petition were trying to mislead the Court or were trying to conceal relevant facts from the Court and, therefore, the petition has become mala fide and is liable to be dismissed.
(10) The learned counsel for the petitioner relied on Hakim Misbahuddin vs. Abdul Shakoor, Rcj (Vol.2) 1987 page 294, to canvass that if material facts like availability of alternative accommodation are concealed from the Court an eviction petition under Section 14(1)(e) of the Act, is liable to be dismissed. As per the discussion herein before it has been held that it is not a case of concealment of material facts. Therefore, this judgment is not relevant for purposes of the present case.
(11) The next point urged on behalf of the petitioner in support of the plea of concealment is that respondent No.1 moved an application (C.M. 531/95) in this court under Order 41, Rule 27, Civil Procedure Code . on 31st January 1995 praying that he had been transferred to Delhi, and therefore, this fact had to be considered while considering the bona fide need of the respondents for the property in suit. It is argued that on his being transferred to Delhi, respondent No.1 applied on 5/1/1995 for allotment of Govt. accommodation to him. He should have disclosed this fact in the application. The explanation of the respondents in this behalf is that in Govt. service mere application for allotment of Govt. accommodation does not mean that accommodation is actually allotted to an officer. It takes long before allotment takes place and actual possession is made available. Therefore, non-discloser of the fact about application for allotment of flat is not material. The explanation of the respondent in this connection is fully justified. Non-mention of the fact that the respondent had applied for Govt. accommodation to which he was entitled to in the application under Order 41, Rule 27, Civil Procedure Code ., referred to above, cannot be said to be such an important fact as to non-suit the respondent. Thus the plea of concealment of material facts from the Court so as to render the eviction petition mala fide and liable to rejection is turned down and I hold that it is not a case of concealment of material facts. All relevant facts have been placed before the Court at the relevant time and the petitioner has not been prejudiced in any manner on account of the alleged concealment of facts.
(12) Coming to the second point raised on behalf of the petitioner regarding sufficiency of accommodation available with the respondents in the property in suit it is to be first noted that the accommodation available with the respondents on the ground floor of the property in suit consists of two bedrooms measuring about 10' X 12' and 10' X 14', one drawing-cum-dining room, store, kitchen, bath and W.C. The family of the respondents consists of their parents, respondent No.1, his wife and two daughters who are now about 21 years and 18 years of age respectively. The wife of respondent No.1 is working in Nestle's in Delhi while his daughters are pursuing their education in Delhi. The family of respondent No.2 consists of himself, his wife who is a teacher in a school in Delhi and his two daughters who are now aged about 15 years and 13 years and who are also pursuing their education in Delhi. In view of the subsequent developments it is not necessary now to consider the requirements of the other two brothers of the respondents, therefore, I need not detail the family members of the said two brothers.
(13) The learned counsel for the petitioner submitted that the needs of the parents of the respondents need not be considered any more. The parents can stay with the other son Ashok Kumar, who jointly owns the Anand Vihar property Along with the fourth son. There is plenty of accommodation in the Anand Vihar property. The parents can shift to the said property. About respondent No.1 the submission is that he has been admittedly allotted Govt. flat in Moti Bagh, New Delhi and, therefore, needs of his family no longer survive nor they are to be considered. About respondent No.2 it is submitted that he has been admittedly transferred by the bank where he is employed to Bengal Circle. It is not disputed on behalf of the petitioner that the family of the said respondent No.2 stays in Delhi. According to the learned counsel for the petitioner the accommodation in the property in suit which is available with the respondents is sufficient for the requirements of the family of respondent No.2 which is staying in Delhi. There is no dispute about the accommodation available with the respondents in the property in suit. There is some controversy about a store-room on the barsati floor being available to the landlords. I am not attaching any importance to that because that accommodation is in any event not a bedroom and, therefore, does not have much relevance.
(14) The above submissions on behalf of the petitioner are to be considered in the light of following facts:-
(15) It is established on record, rather the tenant and his witnesses have admitted that the family of Dr.Harikishan Dass Nanda has been all along residing together. Earlier they were residing in the bungalow allotted to Dr.Harikishan Dass Nanda. After the retirement of Dr.Harikishan Dass Nanda, father of the respondents, the entire family shifted to a rented accommodation where all the members stayed together. Since 1979, i.e. after the purchase of the property in suit the entire family started living together in the ground floor portion of the property in suit which became available to them on purchase of the said property. Therefore, it is clear that the family is used to living together. Ultimately it was on account of paucity of accommodation that one of the brothers, namely, Ashok Kumar shifted Along with his family to the Anand Vihar property after the same was constructed. Except whenever any male member of the family had been posted out on account of exigencies of his service, the family has stayed and lived together at Delhi. The parents of the respondents are aged. The father is above 75 years of age. At this age, I am of the view that the wish of the parents to stay in a particular property and with a particular son and son's family, should be respected. The tenant in any case can have no say in such matters. The parents when they choose to live with the respondents cannot be compelled to live with the third son who had to move out only on account of paucity of accommodation in the property in suit. The parents have all along been living in the property in suit since its purchase in the year 1979. At this old age people get used to a particular environment, atmosphere and social groups. It will be unfair to uproot them at this age and ask them to move to another house in another location and different surroundings. Therefore, I cannot accept the argument that the parents should stay with the son who has shifted to Anand Vihar property simply because pressure of accommodation in that house is comparatively lesser. The parents of the respondents have expressed the desire to live in the property in suit. They are entitled to stay with the respondents as per their wish. Neither any fault can be found nor any motives can be imputed in this behalf.
(16) About respondent No.1 it is contended that he has been allotted Govt. accommodation in Moti Bagh, New Delhi and, therefore, needs of his family need not be considered while deciding the present case. It is established on record that respondent No.1 is an I.A.S. officer belonging to the Tamil Nadu Cadre. He had earlier been posted in Delhi and after serving for some period in Delhi he had to return to Tamil Nadu. His present posting order says that he has been appointed as Joint Secretary, Ministry of defense with effect from 23rd December 1994 (FN) up to 22nd December 1999 (AN) or until further orders, whichever is earlier. This means that though the present posting of respondent No.1 is for a period of five years, he can be transferred even earlier. The moment the officer is transferred, he and his family has to vacate the Govt. accommodation which has been allotted to him in New Delhi by virtue of his present posting. Further the record shows that the wife of respondent No.1 is employed in Delhi while his two daughters are pursuing their education in Delhi. Therefore, these three members of his family have to stay in Delhi even if respondent No.1 is transferred. It has also been shown that earlier when respondent No.1 was posted back to Tamil Nadu, his family had stayed back in Delhi and had to reside in the property in suit only. Firstly, on account of uncertainty about posting of respondent No.1 and secondly, on account of the fact that in any event the other three members of his family have to stay in Delhi, it cannot be said that need of the family of respondent No.1 need not be considered now. In this connection this fact has also to be kept in mind that the transfer orders in Govt. service, the way respondent No.1 is situated, can be passed any time but correspondingly eviction proceedings and their results do not flow so swiftly. Today we may disregard the need of the family of respondent No.1 for residence in the property in suit and dismiss the eviction petition. Tomorrow when respondent No.1 is transferred, will it be possible to provide accommodation to the family in the property in suit forthwith? The respondent/ landlord cannot be thrown out on the basis of such temporary and transitory phenomena. The requirement of the family of respondent No.1 to stay in Delhi is constant and permanent. For the time being they have a Govt. allotted accommodation available to them which they may have to surrender at a short notice. If the eviction proceedings were to be started afresh for their requirements at that stage and till they finally succeed the family cannot be left on the road. There has to be a long term solution rather than disposing of the matter on the basis of such uncertain and short term events.
(17) Next is the contention regarding respondent No.2 having been transferred to Calcutta. The respondents have fairly accepted this factual position. Likewise the tenant has also not disputed the factual position that the wife and daughters of respondent No.2 have to in any event stay back in Delhi because the wife is a school teacher in Delhi and their children are also pursuing their education in Delhi. In fact the learned counsel for the petitioner conceded that only the needs of these three members, i.e. the wife and daughters of respondent No.2 are to be considered and it was submitted that two bed rooms and a drawing-cum-dining room available to the respondents on the ground floor is sufficient for them. It has already been held that the needs of the parents have to be considered Along with family of the respondents and that the parents cannot be compelled to shift and stay with their third son in Anand Vihar. Considering the requirement of the parents Along with the family of respondent No.2 who is staying in Delhi itself renders the accommodation available to the respondents in the property in suit insufficient. There are only two small bedrooms. One bedroom will be required for the parents and one bedroom is required for the wife of respondent No.2. Respondent No.2 keeps on visiting Delhi and, therefore, as and when he comes to Delhi, he has to stay with his wife in one of the bedrooms. Thus for the daughters of respondent No.2 no accommodation is left. The daughters are in their teens and they need a separate bedroom where they can study and sleep peacefully. This assessment shows the shortage of accommodation even without considering the requirements of the family of respondent No.1. The fate of this family qua residential accommodation can be well imagined if respondent No.1 did not have any Govt. accommodation allotted to him. Besides this it has come in evidence that since the respondents have transferable jobs whenever they go out, they leave behind lot of luggage which has to be stored in this very accommodation available with the respondents in the property in suit. As it is the bedrooms are small and the left behind luggage takes lot of space. From all accounts thus it is a case of acute shortage of accommodation.
(18) The result is that this revision petition is dismissed and the eviction order passed by the Addl. Rent Controller is upheld. Parties are left to bear their respective costs. C.R. 717 of 1994 (19) The petitioner in this case is a tenant with respect to two rooms, one kitchen, bath and W.C. on the second floor of the property No.R-710, New Rajinder Nagar, New Delhi. The premises had been let out to him by its previous owner in the year 1977. The respondents/landlords purchased the entire property in the year 1979. The eviction petition was filed on or about 4th October 1986 under clause (e) to the proviso to sub-section (1) of Section 14 of the Delhi Rent Control Act. The rate of rent is Rs.450.00 per month excluding water and electricity charges. The respondents are two brothers who own the property in suit. The ground floor of the property is occupied by the family of the respondents. First floor is occupied by another tenant, namely, Shri O.P. Soni (petitioner in C.R. No.480/94). The second floor accommodation is with the petitioner in the present case. The Addl. Rent Controller passed an eviction order dated 9th March 1994 against the petitioner herein. The said order is under challenge.
(20) The main argument on behalf of the petitioner in the present case is also based on alleged concealment of facts on the part of the respondents, which according to the petitioner renders the case of the respondents mala fide and liable to be dismissed. On the question of concealment, the facts in the present petition are slightly different from those in the connected C.R. No.480/94.
(21) The eviction petition in the present case bears the date 4th October 1986 and appears to have been filed on 7th October 1986. The date is crucial because by this time another property at Anand Vihar, Delhi had been constructed by the other two brothers of the respondents and one of them had in fact shifted to that property. The fourth brother had to move out of Delhi on account of his employment. He rented out his portion in the Anand Vihar property. In the background of these facts the plea of the respondents in the eviction petition has to be noticed. The respondents stated:- the said premises are reasonably and bona fide required by the petitioners for their own residence as well as for that of their family members dependent upon them. As a matter of fact, the premises had been purchased for the benefit of the whole family of the petitioner's father Dr.Harikishan Dass Nanda and that the premises are held for the benefit of the family members. Neither the petitioners nor their father own any other property and the house in question is the only house for the residence of the family."
(22) The learned counsel for the petitioner in the present case contended that the aforesaid pleading conceals the fact that the family owned the property at Anand Vihar, Delhi where reasonably suitable alternative accommodation is available to the family. The respondents were called upon to file better particulars by the Addl. Rent Controller vide order dated 24th March 1987, regarding their brother Ashok Kumar. In pursuance of the said order of the Addl. Rent Controller, the respondents filed better particulars stating that Ashok Kumar, the brother of the respondents had to move out from the property in suit on coming to know about the transfer of respondent No.1 to Delhi in the year 1986. He moved to B-11, Anand Vihar, New Delhi. A written statement was filed by the petitioner tenant after the filing of the said particulars by the respondents in Court. It has to be seen whether in these facts it can be said to be a case of concealment of essential facts and, therefore, mala fide. The relevant plea from the eviction petition has already been reproduced. The respondents have stated that neither of them nor their parents own any other property and the house in question is the only house for the residence of the family. Factually there is nothing wrong in the said statement. It is not even the case of the tenant that the parents of the respondents or the respondents or any of the members of their respective families owns any other property in Delhi. The fact that the other two brothers of the respondents own a property in Delhi has come on record and has been accepted by the respondents. Thus, as the pleadings stand, it cannot be said to be a case of concealment of any facts from the Court.
(23) The next question is that on the basis of these pleadings, is there any attempt to mislead the Court? To answer this it has to be seen that when the property in suit was purchased this was the only property owned by the entire family consisting of the parents, respondents and their two brothers. All of them started living together in the same house. It is also on record that the entire family had been living together earlier and continued to live together till the respondents had to go out of Delhi on account of their employment, even in such events they left their respective wives and children back in Delhi to stay in the property in suit. Ultimately when the Anand Vihar property was constructed in the year 1986, on account of acute shortage of accommodation and on account of the fact that respondent No.1 was transferred to Delhi, one of the brothers shifted to Anand Vihar property. In these facts no fault can be found with the statement in the eviction petition that the premises in suit had been purchased for the benefit of the whole family of the father of the respondents, namely, Dr.Harikishan Dass Nanda. The learned counsel for the petitioner/tenant urged that the case of the respondents that their brother Ashok Kumar had to move out on account of paucity of accommodation in the property in suit was an attempt to mislead the Court. Ashok Kumar, according to the learned counsel, shifted because he had constructed his own house while the respondents have projected their case on the basis of keen desire of the four brothers to live together Along with the parents as one family. In the better particulars filed before the Addl. Rent Controller, the respondents stated that Ashok Kumar, i.e. the brother who moved out on account of paucity of accommodation still occasionally comes and stays with the parents. From the facts on record it appears that it is a close-knit family which prefers to stay together. This observation is supported by the fact that when the property in suit was purchased, all the four brothers and their families stayed together Along with parents in whatever little accommodation that was available in the property.
(24) About the availability of accommodation in the Anand Vihar property it has to be noted that the said property is owned by the other two brothers and the respondents have no right, title or interest therein. The respondents own only the property in suit, therefore, the requirement of the respondents qua another property in which they do not have any right, titled or interest, cannot be considered. The requirement of parents to stay in the property in suit and their wish in this regard has already been dealt with in the earlier portion of this judgment while dealing with C.R. 480/94. It is not necessary to repeat the same. Similarly the question of bona fide need of the respondents for the property in suit has already been dealt with hereinbefore in C.R. 480/94 and facts being the same so far as the requirement of the respondents is concerned, they need not be repeated. However, the question needs further consideration. In view of the eviction order passed in C.R. 480/94, does the need of the respondents/landlords stand satisfied? The details of the family members of the respondents have been given while considering the question of bona fide requirement in C.R. 480/94. As a result of the eviction order passed in the said case accommodation on the first floor consisting of two bedrooms and a drawing-dining will become available to the respondents. The said accommodation will still not satisfy the requirement of the family of the respondents including their parents. Each respondent requires at least two bedrooms with one drawing-cum-dining. The parents of the respondents also require at least one bedroom for themselves and another for their visiting married daughter. Thus the accommodation which becomes available as a result of eviction order in C.R. 480/94 is not sufficient to meet the requirements of the entire family of the respondents and an eviction order is liable to be passed against the tenant in the present case under Section 14(1)(e) of the Act.
(25) Learned counsel for the petitioner in the present case also raised a question regarding validity of the gift deed regarding Anand Vihar property. The facts on record shows that the plot on which the Anand Vihar property is constructed, had been allotted by the Society to the father of the respondents Dr.Harikishan Dass Nanda. He gifted the said plot to his said two sons, namely, Ashok Kumar and Kamal Kumar. The gift deed was duly executed and acted upon and on the basis of the gift deed the plot had been mutated in the names of the said two donees. Can the petitioner/tenant be permitted to challenge the validity of the gift deed which the parties which can possibly object to it are accepting? In the facts and circumstances of the case it is not open to the petitioner to dispute the validity of the gift deed regarding the Anand Vihar property.
(26) Another question raised by the learned counsel for the petitioner in the present case was that the eviction petition was mala fide on the ground that the respondents were only interested in enhancing the rent. The premises can now fetch much better rent and, therefore, the purpose in evicting the tenant is only to ensure better rental. There is no substance in this plea. It is a desperate plea raised by most of the tenants. Without any evidence or material to support such a plea it cannot be entertained on the basis of a mere assertion. There is nothing on record to support this plea. The learned counsel for the petitioner found fault in the reasoning of the learned Addl. Rent Controller regarding the plea of enhancement of rent. It was submitted that this plea had been rejected on the ground that the bona fides of the respondents/landlords are established on the fact that they never gave any notice of enhancement of rent in respect of the legislative provision introduced in the shape of Section 6A of the Delhi Rent Control Act by way of amendment of the existing statute. The learned counsel submits that the amendment came into effect from 1/12/1988 whereas the eviction petition in the present case was filed in October 1986. There could be no occasion for giving such a notice by the respondents to the petitioner/ tenant. May be that the Addl. Rent Controller overlooked this aspect but this alone will not render the ultimate conclusion about the rejection of the tenant's plea wrong. The reasoning may not be correct but the conclusion is perfectly right in the facts of the case.
(27) The result is that the petition fails and is dismissed with no order as to costs. The eviction order passed by the Addl. Rent Controller on 9th March 1994 is upheld. The petition stands disposed of.