Delhi High Court
Indian Paper Machinery And Engineering ... vs Sarwarth Lal Jaini on 10 May, 1988
Equivalent citations: 35(1988)DLT190
JUDGMENT P.K. Bahri, J.
(1) This civil revision has been brought against order of eviction dated October 28, 1986, of Shri B.B.Chaudhary, Additional Rent Controller, Delhi, on the ground of bonafide requirement of residence covered by clause (e) of sub-section I of Section 14 of the Delhi Rent Control Act.
(2) Facts, in brief, are that the respondent-landlord is the owner of house No. H-42, Green Park Extension, New Delhi, which is two and a half storeyed building and he had constructed this building in the year 1967 and was living with his family members the ground floor of the said house while he had let out the first floor of this house comprising of four bed rooms, one drawing-cum dining and other facilities to the petitioner in November 1968 under an oral agreement. The landlord's father admittedly is the owner of house No. 205, Jor Bagh which has two bed rooms accommodation on the ground floor and similar type of accommodation on the first floor and one barsati room with a toilet on the second floor. At the time of creation of tenancy in question, the respondent's brother (AW2),who was then working in Indian Oil Corporation, was living on the ground floor of house No. 205, Jor Bagh, with respondent's father. The first floor of the said house in Jor Bagh was in occupation of another brother who retired as Brigadier. AW2, the brother of respondent was transferred to Nepal in the year 1970 or so and the respondent's mother had died. So, the respondent's father was alone living on the ground floor of that house which necessitated the shifting of the respondent with his family members to the said place in order to look after the father and give him company. It has also come out in evidence that Brigadier brother of the respondent was married to an English lady and the said family was non-vegetarian whereas respondent's father is strictly vegetarian. Hence, the respondent's father could not have joined himself with his Brigadier son's family. During the pendency of the case that Brigadier brother of respondent had died and still his widow and two children are living on the first floor. AW2 had retired from the Indian Oil Corporation in the year 1981 and he, with his wife and a married son and a grand child, has started living on the ground floor of the said house in Jor Bagh and it was pleaded by the respondent that his father had asked him to shift back to his own house due to paucity of accommodation available in the said house at Jor Bagh. Hence, the respondent brought the eviction petition against the petitioner on the ground of bonafide requirement of residence setting up the ingredients of the said ground of bonafide requirement in detail.
(3) The eviction petition was contested by the petitioner on all possible grounds. However, during the course of arguments before me, it is not disputed that the respondent is the owner-landlord of the premises in question. With regard to the letting purpose, the case set up by the petitioner is that in fact, the premises in question had been taken on rent for the purpose of setting up an office of the petitioner-company besides being used for the residence of Shri S.R. Balotia, one of the directors of the petitioner-company and also as a guest house of the company and that since from inception of the tenancy the premises have been used for the said purposes. It is, indeed, not in dispute that said Shri Balotia has been residing Along with his family members in the premises in question from the very inception of the tenancy. Admittedly no document of letting was executed. The landlord appearing as AW1 made a categorical statement that the talks of tenancy took place between him and Shri Balotia and the the premises had been let out only for residential purpose It was not suggested to him in the cress-examination that anyone else was present when such talks took place, whereas Shri Balotia coming as RW1 deposed that he did not remember whether the talk of letting took place between him and the respondent. However, he went on to state that possibly the talk of letting took place between him and the respondent's father. This was a new place being set up by Shri Balotia for the first time in his statement because neither to respondent, who appeared as Awi, nor to respondent's father, who appeared as AW4, any suggestion was given that at the time the letting took place, respondent's father was also present. Shri Balotia stated that he had no knowledge that any resolution was passed by the board of directors of the petitioner-company for taking the premises in the question on rent. At any rate, neither it has been pleaded nor has it been referred to in evidence that any resolution of the board of directors of the petitioner-company to the effect that premises are being taken on rent for non-residential purposes as well was ever brought to the notice of the respondent. We have only sworn testimony of the respondent on the one hand and similarly sworn testimony of Shri Balotia on the other hand with regard to the terms of tenancy settled between both of them when no one else was present.
(4) It is the case of respondent that the house in question is a residential in the nature and is located in residential locality and the electric and water charges are also being levied by the municipal authority treating the user of the house for domestic purposes and these facts are, indeed, not challenged even during the course of arguments by the learned counsel for the petitioner rightly so because the respondent examined besides himself and his brother and son and father, one resident of the said locality Sumer Chand Jain (AW5) who deposed that the premises are located in residential area and nature of the premises is also residential and they have never seen any office functioning from the premises inquestion. In rebuttal RW1 made a bare and bald statement that there are located certain offices in that area but he neither could point out the number of the houses where such offices are located nor the names of the companies whose offices are located in that area. So, the additional Rent Controller was right in giving the finding that the house in question is residential in nature and is located in residential area.
(5) It is also not out of place to mention at this stage that there is not any plea taken in the written statement that any particular specific portion of the premises in question has been earmarked for use as an office. What Shri Balotia had stated in cross-examination regarding the user of the premises for office purpose is that the petitioner-company places tenders with the DGS&D, defense Organisation and other government concerns and the follow up action is taken by Shri Balotia and officials of the company and some correspondence takes place with the said organisations from the address of the premises in question. It is not proved that any other employee has been engaged by the petitioner-company for functioning from the premises in question. One Gir Raj Sharma is stated to be an employee working in the premises in question since 1974-75. It is not the case that any other employee worked in the premises prior to 1974-75 or even afterwards. RW2, the Secretary of petitioner-company made a false statement that in fact, there are two employees of the petitioner-company working from the premises in question. No documentary evidence was place on the record to show that Gir Raj Sharma is an employee of the petitioner-company. According to RW2, whenever he stays on his visits to Delhi at the premises in question he is being looked after by Gir Raj Sharma. It appears that Gir Raj Sharma has been performing the functions of domestic servant. At any rate, there is no plea or evidence that any particular portion of the premises in question has been used exclusively for running any office. Admittedly no sale or purchase of any sort is done from the premises in question. It appears that the respondent completed his evidence and the petitioner had examined RW1 that an application was moved under Order-XIII Rule 2 of the Code of Civil Procedure by the petitioner to bring on record certain documents maintained at the head office of the petitioner-company which, inter alia, consisted of copies of the resolutions passed by the board of directors of petitioner-company for taking the premises in question on rent for office-cum-guest house purposes and the account books of the petitioner-company showing that expenses of the premises in question are being debited in the account of an office at Delhi and correspondence received from the organisations at the address of the premises in question and copies of income-tax returns showing the expense incurred on office of the petitioner-company in the premises in question. In the application seeking to produce these documents belatedly, no good reason was given as to why the documents, which have been in power and possession of the petitioner-company at all relevant times, were not produced and proved initially. The Additional Rent Controller rejected that application. It is true that if there are documents which are of undoubted credibility then such documents could be allowed to be produced if they are relevant on the points in issue even at a late stage subject to payment of costs to the opposite side and giving an opportunity to the opposite side to lead evidence in rebuttal to such documents. But in the present case, keeping in view the background, as detailed out above even if these documents are taken into consideration even that would not have advanced the case of the petitioner any further in showing that in fact premises in question had been taken on rent for non-residential purposes as well because there is nothing to show in these documents that at any time the respondent-landlord was apprised of the fact that any office of the petitioner-company shall be run in the premises in question before the premises in question were taken on rent. The letting is always a matter of contract. Even if the petitioner-company was thinking of showing the opening of an office-cum-guest house in the premises in question and for purposes of its accounts the petitioner-company has been showing the expenses being incurred at the premises in question by Shri Balotia as office expenses for the purpose of income-tax etc. that would not mean that premises in question were agreed to be let out by the respondent for non-residential purposes as well. The testimony of RW1 must be kept in view when be went on to state that he did not remember that any resolution of board of directors was passed when the premises were taken on rent. It is not the case set up that any copy of such resolution, if had been passed, was furnished to the respondent-landlord at the time of taking the premises on rent. As a matter of fact, the premises in question are being used for residence purpose predominantly and at most the address of the premises in question is being used by the petitioner-company for correspondent with the various government organisations with regard to the obtaining of contracts from the said organisations. Admittedly, no other commercial activity of any short is being carried on at the premises in question. Shri Balotia in all probabilities is looking after the liaison work for the benefit of the petitioner- company for pursuing the tenders, which are given to different organisations., on behalf of the petitioner-company. In the absence of any document of letting, the Additional Controller was justified in determining the letting purpose from the facts that the premises in question are residential in nature and are located in a residential locality and have been used predominantly for residential purpose and coming to the conclusion that the premises have been proved to be let out for residential purpose only.
(6) Counsel for the petitioner has made reference to the well known case of Dr.GopalDassVerma v. Dr. SK. Bhardwaj, . In the cited case the premises which had been let out for residential purpose, were shown to have been used for commercial purposes to the knowledge of the landlord and it was held by the highest Court that the letting purpose came to be changed to non-residential purpose as well. A substantial portion of the premises was shown to have been used for commercial purposes. I do not see how anything said in this judgment is of any help to the petitioner in the present case where it is not even pleaded or proved that any specific portion of the premises in question had been earmarked for office purposes. For parity of reasons, Smt. Kaila Devi v. Banarsi Das, 1980(2) Rcj 139, is also distinguishable because in the said case as well it was proved that a substantial portion of the premises have been used for commercial purposes to the knowledge of the landlord without any objection and it was held that the premises would be deemed to have been let out for commercial purpose as well. This judgment also placed reliance on the case of Dr. Gopal Dass Verma (supra). In Ajit Singh v. Inder Saran etc., 1979 (1) Rcj 152, again the fact were different. In the cited case also, the tenant was found to using whole of the accommodation let out, except one room, for non-residential purposes and it was held that the premises were let out for residence-cum-commercial purposes. Similarly in Munshi Ram Sakhuja v. Col. Ram Parshad (Retd), , the premises were found to have been let out orally but were found to be used by the tenant for residence-cum-clinic purpose to the knowledge of the landlord. So, it was held that the letting purpose was residential-cum-commercial purpose. In the present case, as already noticed above, it is not proved at all that any particular portion of the premises has been exclusively used for running any office. The only fact shown from the testimony of RW1 regarding the user of the premises is that from the premises in question he places tenders with different organisations and then the liaison work is done for pursuing these tenders and some correspondence is exchanged. So, it was not at all shown that any specific portion of the premises in question had been used for running any office, rather the premises in question are being predominantly for residential purpose. Rwi with his family members have been residing in the said premises and certain directors of the petitioner- company on their visits to Delhi also reside sometime in the premises in question, but that user would not make the premises in question nonresidential.
(7) The word 'office' came to be explained by the highest court in V.S. Talwar v. Prem Chandra Sharma, Air 1984 Sc 664. It was held that although ordinarily an office would mean the place where official business is transacted; a personal office in contradistinction to an office simpliciter or a commercial office would be a place where an outsider would not normally be admitted; commercial transactions would not take place; there would be no fixity of the location and the tenant would be entitled to use any portion of the premises as his personal office and the like and such a place if referred to as personal office would essentially be residential. Drawing force from the said observations of the highest court, counsel for the respondent vehemently argued that in the present case there is no evidence that any portion has been fixed for running any office in the demise premises. The nature of the work referred to by Rwi as being carried out from the premises in question only is indicative of the fact that some personal office of the director of the petitioner-company is being maintained which can only be termed as residential use. There is a lot of force in this contention.
(8) So, examined from any angle, I find that the Additional Rent Controller could come to the conclusion from the evidence appearing on the record that the premises in the question have been let out only for residential purpose. Even if the documents, which were sought to be produced at the later stages of the case before the Additional Rent Controller, are taken into consideration, still I am of the firm view that no other finding could be given to the benefit of the petitioner that the premises had been let out for any purpose other than residential.
(9) As far as the bonafide need of the premises by the landlord is concerned, the facts have gone unchallenged as came out from the statements of the respondent and his brother, father arid son that in the Jor Bagh house belonging to the respondent's father there is utter paucity of accommodation with AW2 taking up residence with his family in that house. It is not for the tenant to dictate that respondent's father should not have accommodated AW2 and his family in his house. It could not be known earlier as to whether AW2 after retirement would shift to Delhi and start residing in the house of respondent's father. So, it was wrongly urged before the Additional Rent Controller that as date of superannuation of AW2 was known to the respondent, so the respondent should not have shifted to the house of the father and should have continued to reside on the ground floor of the house in dispute which was more than sufficient for the needs of the respondent and his family members. After all AW2 had been transferred from Delhi and respondent's father was alone living on the ground floor of that house and I find there is nothing wrong if at that point of time in the year 1970 or so. the respondent thought of shifting to the house of his father in order to live with his father. It is because of changed circumstances that when AW2 after being superannuated has come out to live in Delhi in that house that the necessary had arisen for the respondent to have his own house for his residence. It cannot be held that there is any malafide intention which had actuated the respondent in seeking eviction of the petitioner on the ground of bonafide requirement of residence. The family of the respondent comprises of himself, his wife, two sons and two daughters, one of the daughters is already married, sons and the other daughter are of marriageable ages. Even in his testimony the respondent stated that due to paucity of accommodation he had been forced to take a rented flat in house No. 204, Jor Bagh, where he has now shifted with his family and is paying Rs. 1600.00 per month as rent. Apart from suggesting in cross-examination of respondent and his witnesses that this house 204, Jor Bagh, belongs to some relations of the respondent, which fact was denied, nothing came out in evidence that in fact that house belongs to any family member of the respondent No questions were put to the respondent and his witnesses eliciting any further facts with regard to that particular rented flat. Counsel for the petitioner has urged that the onus being on the respondent to prove that he is not in possession of any reasonably alternate suitable accommodation, it was the duty of the respondent-landlord to have disclosed as to how much accommodation he and his family member are having in that so-called rented flat and in the absence of any such evidence led by the respondent the Additional Rent Controller was not right in giving the finding that the respondent was not in possession of any alternate reasonably suitable accommodation. It is obvious from the facts, as held by the Additional Rent Controller, that the house of respondent's father in which the respondent and his family members are not presently residing cannot be considered reasonably suitable residential accommodation available to the respondent and his family members. There is no illegality in the finding of the Additional Rent Controller in that respect. However, the question which need to be decided is whether the rented accommodation with the respondent-landlord where he is paying Rs. 1600.00 per month as rent could be considered reasonably suitable accommodation for the landlord who is getting only Rs. 700.00 per month as rent from the petitioner in respect of the premises in question. It is true that it would have been better if the respondent had also given details of the accommodation in his possession in that rented flat but keeping in view the fact that the respondent had filed this eviction petition on the ground of bonafide requirement of residence with his desire to shift to his own house and he being not in possession of any reasonably suitable accommodation when he was living in the house of his fater, it cannot be held that with the respondent now shifting to a rented accommodation his bonafide need for residing in his own house has come to an end and the rented accommodation should be treated as reasonably suitable alternate accommodation available to the respondent and his family members In the peculiar facts of the present case, I would agree with the Additional Rent Controller that the said rented premises in possession of the respondent and his family members cannot be considered alternate reasonably suitable accommodation.
(10) It was next argued by the learned counsel for the petitioner that the respondent has got the rent increased from the tenant of the ground floor and also of the barsati floor at some point of time and so, it was urged that the respondent, in fact, has malafide intention of putting the pressure on the petitioner to increase the rent and the respondent does not bonafide need any residential premises. The mere fact that at some point of time when respondent did not need any accommodation for his own residence, the respondent had got an increase of rent from he tenants of the ground floor and the barsati floor does not mean that the respondent is actuated by any malafide intention of setting up this ground of bonafide requirement, and that he only has an intention of getting the rent increased from the petitioner.
(11) Hence, I come to the conclusion that the order of the Additional Rent Controller does not require to be set aside by this Court as it does not suffer from any illegality. I dismiss the civil revision but in view of the peculiar facts of the case, I leave the parties to bear their own costs. One month's time is granted to the petitioner for vacating the premises.