Delhi High Court
Harivansh Lal Rabra vs Madan Lal Jolly on 17 January, 1997
Equivalent citations: 1997IIAD(DELHI)541, 65(1997)DLT480, 1997(40)DRJ568, 1997RLR383, 1997 A I H C 2068, (1997) 40 DRJ 568, (1997) 2 RENCR 290, (1997) 1 RENTLR 542, (1997) 65 DLT 480
Author: S.N. Kapoor
Bench: S.N. Kapoor
JUDGMENT S.N. Kapoor, J.
(1) This revision petition is directed against the order and judgment of the rent controller dated 20th July 1986 dismissing the eviction petition filed on the grounds of bona fide requirement.
(2) The facts giving an occasion to the present revision petition in brief are as under :
(3) The petitioner is the owner/landlord of property no. A.25 (77) East Azad Nagar, Delhi. The respondent Madan Lal Jolly is tenant of one room, one kitchen and store on the ground floor of the said premises since 1969. According to the petitioner, the premises were let out for the residential purposes. These premises are required for residential purposes by the petitioner. The family of the petitioner consisted at the time of filing the petition on 12th March 1980 the petitioner himself, his wife Prakash Wati, 3 sons, Devi Prasad, Sobhagya Raj and Atal Anand, two daughters, Vijay Lakshmi and Vimal Lakshmi, Smt. Jyoti Sharma, daughter-in-law (wife of Devi Prasad) and two grandsons Lalit aged 5 and Kamal alias Pappu 3 years and one daughter Kumari Meenakshi and another daughter- in-law Smt. Savita Sharma wife of Sobhagya Raj. The younger daughter of the petitioner required a separate room for her studies. At that time, the petitioner had in his occupation three rooms which were insufficient for his residence and for his family members. The petitioner being a social worker, his relations and members of public kept on visiting. As such he needed a guest room also. Monthly income of the petitioner and his family members those days was more than Rs. 2000.00 . Consequently, he terminated the tenancy and filed the eviction petition under Section 14(i)(e) of the Delhi Rent Control Act (hereinafter called the Act, for short).
(4) The respondent contested the petition on the ground that the petitioner was not exclusive owner of the premises. Further, the premises were let out for residential cum commercial purposes and he was carrying on business in the name of M/s. Jolly Treaders, Delhi. He also claimed that his tenancy premises consisted of one room, kitchen, store a bath room and latrine. As such, the petition had been filed for partial eviction. The petitioner got one room, one kitchen and one store, vacated by Lekhraj and let out the same to Prakash Narain @ Rs. 80.00 per month. Similarly, another room was let out in the year 1979 to Chuni Lal @ Rs. 80.00 per month, after getting the same vacated by the former tenant. He also let out one room to Roop Chand in the year 1975. During the last three years, he had inducted three new tenants Gajraj Ravi Sigh, Ranjan Das and Sham Roy Singh. The petitioner was having five rooms, a kitchen, a store, bath and two court-yards and the accommodation was more than sufficient. The sons of the petitioner were neither dependent nor living with the petitioner. Devi Prasad was doing business and permanently settled at Indore along with his family and third son of the petitioner. Shri Sobhagya Raj was financially independent. Consequently, as per respondent's version, petitioner was not entitled to evict the respondent/tenant.
(5) In replication, it was admitted that rental income was the only source of the livelihood for the petitioner. The eldest son of the petitioner had permanently joined the petitioner and was not residing at Indore. All other averments in the written statement were denied.
(6) The learned Rent Controller while dismissing the petition has taken the view that the premises were let out for residential purposes only; that the petitioner was the owner of the property; that the tenancy premises consisted of one room, kitchen and a store. As regards the size of the family, the learned Rent Controller accepted the version of the petitioner that his family consisted of himself, three married sons, their wives, four grand-children and one unmarried daughter and that three married daughters of the petitioner keep on visiting him and staying with the petitioner. As regards the available accommodation, the petitioner has been held to be in occupation of six rooms on the ground floor, one covered Barsati, in his possession out of total 11 rooms, in the premises in question. It is noted that the income of the petitioner was just Rs.2000.00 . The learned Additional Rent Controller further held that he did not bona fide require the premises in question and dismissed the petition.
(7) In this Revision Petition, the impugned judgment has been assailed on the ground that the family now consists of 15 persons apart from three married daughters. The petitioner is getting the pension of Rs.675.00 per month and his rental income is Rs. 2175.00 . His son Devi Prasad Sharma is earning Rs. 1500.00 per month. The other son Sobhagya Raj is getting Rs.2000.00 . The 3rd son is getting Rs. 1000.00 and Smt. Atal Anand Sharma was getting Rs.1200.00 per month and the total income of the family members of the petitioner was approximately Rs. 8,500.00 . The petitioner is possession of only five rooms, 2 kitchen, 2 stores, bath latrine (and not 6 rooms) and a barsati as has been held, could not be said to be living room in absence of any door. Income of all the family members has not been taken into consideration. As such, the finding that the petitioner did not require the additional accommodation for want of sufficient income and the accommodation in possession of petition is sufficient, was not justified. The size of the family of the petitioner has not been given due weight. The fact that the premises were let out to Shri Prakash Narain in the year 1977 prior to the filing of petition, would not in any manner render the present petition, mala fide.
(8) I have heard the learned counsel for the petitioner and gone through the record. According to the submission of the learned counsel, presently, in the family of the petitioner, there are 14 members apart from 4 married daughters and who keep on visiting and staying with him. Presently, he has got 7 rooms, 3 kitchen, one store, bath room, latrine, on the ground floor and a small barsati on the first floor. There are 9 rooms and 2 shops in all, on the ground floor. Shops are being occupied by Gurmukh Lal and Roopchand, tenants. One room, kitchen and a small store is with the respondent and one room and a kitchen is with another tenant, Giriraj. Even eviction orders have been passed against Giriraj, however, revision petition no. 393/1991 is still pending for hearing in this court. According to the submission of the learned counsel, the petitioner needs one room for himself, one room for Devi Prasad and his wife, one room each for Lalit (23 years), Kamal (21 yrs) sons and Taruna (20 yrs) daughter of Devi Prasad. One room for Sobhagya Raj and his wife; one room for Deepshikha (15 yrs) and Poornima (16 yrs) daughters of Sobhagya Raj; one room for son of Sobhagya Raj (8 yrs); one room for Atal Anand and his wife; one room for Kumari Saurabh daughter of Atal Anand (14 yrs). Besides the petitioner claims that he needs at least two rooms for visiting daughters and guests, one drawing room and at least one study room for college going grand-children and in any case their minimum requirement i.e. 13 rooms.
(9) The learned counsel for the petitioner appears to be justified in contending that subsequent events must be considered to provide meaningful remedy and relief. The law appears to be well-settled that subsequent events, either admitted or unrebutted which are neither collateral nor motivated by extraneous considerations,must be considered by the court for making remedy claimed, just and meaningful (See E. Venkataswarulu Vs. The Motor and General Traders, , Hashmat Rai Vs. Raghu Nath Prasad, 1981 (3) Rcr 605, Baba Kashi nath Bhinge Vs. Samast lingayat Gauli 1995(2) Rcr 419 Sc, 1995(1) Rcr 519, M/s Variety Emporium Vs. V.R.M. Mohd. Ibrahim, , Anand Gopal Jhingaram Vs. Arjun Dev, , Amrit Lal Vs. Jagpal Singh Verma, , M/s Jhalani Tools Vs. R.K. Saini, .
(10) Learned counsel has also contended that the subsequent events are mentioned in application indicating the number of family members with their ages and it is supported with an affidavit. It is apparent that before filing the affidavits filed by the petitioners, notice was given either to the respondent or to his counsel but he neither appeared not filed any counter affidavit. As the arguments are unrebutted and no collateral purpose or extraneous considerations appear to be there, I believe the affidavits filed to seek meaningful remedy in the matter.
(11) He has further submitted landlord is not supposed to huddle his family in a small accommodation just for the sake of his tenant and he can ask for one room for each member (See Sheela Sapra Vs. New India Elect. Ind.(P) Ltd., 1992 Rlr 253, and Sarla Mittal Vs. K.C. Jain, . On this basis, the learned counsel for the petitioner submitted that it could not be said that the petitioner did not bona fide require the accommodation.
(12) Seeing the size of the family, four rooms are certainly needed for the petitioner and his three sons and their wives. Coming to the need of the grand- children, it is evident that the grown-up daughters especially above the age of 12 years could not be accommodated either with parents or brothers and as such, they need separate rooms. Consequently, petitioner needs two rooms for growing grandson Lalit (23 years) and Kanwal Nain (21 years) for they have either reached or are reaching marriageable age. There are four grand-daughters. Petitioner needs two rooms for them. HÛe further needs one room for one growing son ofaubhagya Raj, who cannot be accommodated with sisters or cousin brothers. He certainly needs a drawing-cum- dining room. Thus he needs in all ten rooms.
(13) Married sons require at least two rooms - one for himself and his wife and another for adjusting articles and remaining visitors. Learned counsel placed reliance on Salekh Ch. Jain V. Vinesh Ch. Sheth, 1986 Rlr 17. But in Salekh Ch. Jain Vs. Vinesh Ch. Sheth (supra) two rooms each were sought to accommodate their family members and not just for having separate drawing rooms. So far children of sons and to adjust articles are concerned, this need has already been considered. Seeing overall circumstances, separate drawing rooms for each sons appears to be an exaggeration. It has also been contended that the marriage of a daughter does not decrease the requirement and in this connection, the learned counsel has placed reliance on The United Commercial Bank Vs. Bhim Sain Makhija & anr., Air 1994 Delhi 181 and M/s Jhalani Tools (India) Pvt. Ltd. Vs. B.K. Soni, . Now, after the judgment in Lachman Dass Vs. Santosh Singh, this submission cannot be accepted. It has been held in Lachman Dass Vs. Santosh Singh (supra) that the occasional visiting sons of the landlord can neither be considered to be the members of the family of landlord by any "stretch of imagination" nor it "could be accepted to be a sound reasoning, to set aside the concurrent findings".
(14) According to the learned counsel for the petitioner, the petitioner is in possession of seven rooms, three kitchens, one store, bathroom, latrine on the ground floor and a small barsati on the first floor. When the petition was filed, petitioner was having three rooms. One room with kitchen was vacated by Ramji Dass, tenant and one room and a kitchen was vacated by Shyam Singh on the ground of bona fide requirement and one room with small store was vacated by Prakash Narain and one room by Bodh Raj in execution of a decree. Eviction order on the ground of bona fide requirement has already been passed against Giri Raj in revision 393/91 which is said to be still pending.
(15) According to the finding of the learned Additional Rent Controller, the petitioner was in occupation of six rooms and a barsati. Now he is in possession of seven rooms, according to the learned counsel for the petitioner. But it is rightly contended that barsati could not be considered to be a living room in the light of Brij Mohan Vs. Sripal Jain, , and Sarla Mittal Vs. K.C. Jain, . It has admittedly no doors and has been keeping cots and beddings. It is further contended that "size of habitable room is not supposed to be less than 100 sq. ft. in terms of the Delhi Municipal Corporation (Building) Bye-laws 1959". In S.K. Gupta Vs. R.C. Jain, and Bulahi Ram Vs. Suraj Bhan, , it has been held so. There appears a lot of force in this submission.
(16) According to the submission of the learned counsel for the respondent, there are nine rooms and two shops in all on the ground floor and shops were admittedly occupied by Gurcharan Lal and Roop Chand, tenants. One room and a kitchen and a small store is with respondent and one room and kitchen with Giri Raj and the other tenant. As regards the two shops on the ground floor they had been let out much prior to the filing of petition and therefore, they are not available for residential accommodation. If the plan of the landlord is proved and no counter site plan is produced, then site plan filed by the land lord has to be accepted as correct. Seeing the site plan Ex.AW1/3, the submission of the learned counsel for the petitioner appears to be justified about the accommodation available. Accordingly, only seven rooms, three kitchens, one store, bathroom and latrine on the ground floor and a small barsati on the first floor are available. About barsati, it appears that it could not be used as a living room.
(17) So far as the question of ownership is concerned, according to finding of learned Additional Rent Controller the petitioner was owner in respect of premises in dispute. There is a sale deed Ex.AW1/1 in his favour. The petitioner stated that he constructed the house in dispute over the said plot and still further that it was being assessed for house tax purposes in his name. The tenant was inducted by the petitioner in premises in question. No change in circumstances has been alleged by the tenant. Consequently, the tenant is estopped under Section 116 to dispute the ownership of the property. Firstly, there is no defect in title and secondly, the petitioner has proved his ownership required for the purpose of Section 14(1)(e) of the Drc Act.
(18) So far as letting purpose is concerned, according to the finding of the learned Rent Controller, the petitioner had proved that the premises was let out for residential purposes. In case of residential building, if the tenant claims that he has taken the premises for residential as well as commercial purpose, then the burden of proving it is upon the tenant. According to the finding of the learned Additional Rent Controller, the respondent has failed to prove that the premises were let out for residential- cum-commercial purpose. Moreover, one has to take into consideration that the tenant has got one room, one kitchen, one store and half varandah in his possession. He could not prove any receipt indicating that the premises were let out for commercial purposes also. In such circumstances, it appears that the view taken by the learned Additional Rent Controller was justified and could not be assailed on any ground.
(19) Learned counsel has further contended that on account of typing mistake it appeared as if the premises were let out to Prakash Narain in 1979. As a matter of fact, the premises were let out in the year 1977. He also submitted that it is not even the case of the respondent/tenant that the premises were let out in 1979. According to the tenant, the premises were let out in 1978 and there was a lot of difference between 1978 and when the petition was filed on 12th March 1980. It is also notable that one of the sons of petitioner was married on 9th March 1980; two grandchildren have also taken birth. The third son Atal Anand was of marriageable age. On this basis, it was submitted that the learned Additional Rent Controller did not give due weight to these circumstances at all and the finding was just on the verge of perversity, if not perverse. It appears that the view taken by the learned Additional Rent Controller is probably based on the mistake committed by the petitioner himself in mentioning that the premises were let out in 1979. If in such a circumstance, he did not consider the above- mentioned facts due to close proximity of time. I would not attribute all the blame to him. However, the way the facts have been stated before this court, the finding cannot be justified in view of the afore-mentioned circumstances.
(20) The learned counsel for the petitioner further contended that even if the land lord has increased the rent recently (See Capt Ravi Gupta Vs. Vidya Wati, 1993 Rlr 300, Engg. Projects (I) Ltd. Vs. I.D. Ganeriwala, 1990 Rlr 180) and even if the landlord has let out properties recently in changed circumstances, it could not be said that the petitioner did not bona fide require the premises. (see Capt Ravi Gupta Vs. Vidya Wati, 1993 Rlr 300).
(21) According to the submissions of the learned counsel for the petitioner, the landlord whose family members are earning Rs. 15000.00 per month, having a large family of three married sons, three daughters-in- law and six grown up grandchildren. He has four married daughters who visit him. Visitors of married sons relatives and daughters would require at least a drawing room and a study room for school and college going children. In this regard, the learned counsel has relied upon the case of Bulaki Dass Vs. Suraj Bhan, .
(22) Though I am not inclined to accept the requirement to accommodate occasionally visiting daughters in view of Lachman Dass (supra) and separate drawing rooms for each of his sons, yet I accept all other submissions of the learned counsel for petitioner about the bona fide requirement.
(23) As regards termination of the tenancy, the petitioner pleaded in his petition in para 1 that no notice was required under law. However, a Regd. Ad notice dated 8th February 1980 was duly served upon the tenant terminating his tenancy on 4th March 1980. A copy of the notice, postal receipt, acknowledgment due, were filed. The respondent did not send any reply to the said notice. This paragraph has been blandly denied by saying that "para 18B not admitted and denied". Petitioner in his statement stated that he had served a notice on respondent before filing the petition. He proved a carbon copy thereof which was duly served on the respondent but Ad card seems to have been misplaced. 23. (i) According to the petitioner's case, the tenancy started on 5th day of each Gregorian calender month and ended on 4th day of next succeeding month. 23. (ii) It may be mentioned in V. Dhanpal Chettiar Vs. Yesodai Ammal, , seven Judge Bench of the Supreme Court has held that in cases governed by the Rent Act, no notice under Section 106 of Transfer of Property Act is necessary unless expressly so provided for it is merely a surplusage. The landlord could not get the tenant evicted even after such determination. The tenant continues to be a tenant even after the service of such a notice and he does so enjoying all the rights of a lessee and at the same time deemed to be under all the liabilities such as payment of rent etc. This judgment was followed in Satpal Vs. Hira Lal, , Krishnadeo Narayan Aggarwal Vs. Ram Krishan Rai, and this principle has been applied to a case under Delhi Rent Control Act also by a judgment in case of Sarvan Kumar & Anr. Vs. Sohan Lal Rao, Air 1985 Noc 13 (Delhi).
(24) Since the petitioner needs 10 rooms and is having just six rooms, it could not be said that the petitioner did not and does not require the premises bona fide.
(25) In view of the foregoing, it is apparent that the learned Additional Rent Controller has taken a wrong view of law about bona fide requirement in the light of evidence on record. Since all ingredients of Section 14(1)(e) of the Drc Act had been established by the material placed on record, the eviction order could have been passed by the Additional Rent Controller.
(26) In any case, since the petitioner has established that he requires the premises for his own residence bona fide in terms of Section 14(1)(e), the petitioner is entitled to evict the tenant under Section 14(1)(e) of the Drc Act. However, in view of Section 14(7) of the Act, the landlord shall not be entitled to obtain possession of the premises in dispute before the expiry of period of six months from the date of the order. Revision petition is disposed of accordingly.
(27) A copy of this order be sent to the learned Rent Control Tribunal through learned District Judge and Additional Rent Controller, for information and to proceed in accordance with law.