Delhi High Court
M/S. Jhalani Tools (India) Pvt. Ltd. vs B.K. Soni on 2 November, 1993
Equivalent citations: 53(1994)DLT9, 1994(28)DRJ181, AIR 1994 DELHI 167, (1994) 1 RENCR 403, (1994) 1 CURLJ(CCR) 57, (1994) 2 RENCJ 618, (1994) 1 RENTLR 144, (1994) 28 DRJ 181, (1994) 53 DLT 9
ORDER
1. Under clause (e) of sub-section (1) of Section 14 of the Delhi Rent Act (hereinafter called the Act) a landlord can recover possession of the premises let out to a tenant provided; (1) he is the owner of the" premises; (2) the premises had been let out for residential purposes only; (3) he bona" fide requires the same for his own residence or for the residence of this family members dependent upon him and lastly; (4) he has no other reasonably suitable residential accommodation.
2. In the year 1985 the landlord in this case namely Mr. B. K. Somi filed an eviction petition under the provisions noticed above against his tenant M/s. Jhalani Tools (India) Pvt. Ltd. (formerly known as Gedore Tools (India) Pvt. Ltd.) with regard to premises bearing municipal number D-66, Gulmohar Park, New Delhi. Claiming himself to be the owner-landlord of the premises, he alleged that the premises had been let out for residential purpose only and that he bona fide required the same for himself and his family members dependent upon him. As per family comprised of himself, his wife, two married sons, one grand child besides a daughter and that he was living in a two room set in premises bearing number E.G'. 125, Inder-puri, New Delhi which was jointly owned by his wife and her sister and which, he alleged, was highly insufficient to meet his and his family's requirements.
3. The. tenant which is the petitioner before me, contested the petitioner. It denied the ownership of the petitioner though the purpose of letting being residential only was admitted. It was claimed that the landlord had more than sufficient accommodation with him and that the petition had been filed only because his demand for enhanced rent had been down.
4. The learned Additional Rent Controller holding that the landlord had proved his case, allowed the petition and thereby passed an order of eviction. The tenant, feeling aggrieved by that order has preferred this revision petition.
5. Mr. S. N. Marwah, Senior Advocate who has appeared for the petitioner, has not challenged the ownership of the respondent. He has also not disputed that the premises had been let out for residential purpose only. He has sought the reversal of the impugned order on two grounds. Whereas his first contention is that the requirement of the landlord-respondent is not bona fide, his second ground of attack is that the landlord is already in possession of reasonably suitable accommodation. Let me elaborate and come into grip with the contentions raised to the order noted above.
6. As regards the first contention, it is argued that the premises were initially let out in the year 1976 on a monthly rent of Rs.750/- and that it was on account of persistent demand by the landlord that the same was increased to Rs. 900/- with effect from May, 1984 and that it was also on account of his greed that the officer in possession of the premises for and on behalf of the petitioner company had been paying some rent in cash also and that too without receipt. It is argued that initially this cash payment was at the rate of Rs. 100/- per month which raised to Rs. 250/ - in May, 1978 and later to Rs. 650/- and that the landlord had filed the petition in April, 1985 only because his demand to increase the unaccounted cash rent from Rs. 650/- to Rs. 2000/- per month had not been acceded to.
7. The learned Additional Rent Controller has dismissed the version of cash payment as a "concocted story". I lend my voice in support. Excepting the solitary bad statement of Mr. S. Narasimhan, who, I may hasten to mention, is the employee of the company and is residing in the premises, and who, it is claimed, had been actually making those cash payments, there is nothing on the record to support his version. The landlord who has entered into the witness box as PW-1 has denied the allegations. In any case, it is not possible for me to believe that Mr. Narsimhan who is not be a tenant but is in possession of the premises only in the capacity of being an employee of the tenant would make payments from his own pocket when he could easily ask his employer to increase the rent. It is also significant to note that as per Mr. Narsimhan he had been making payments in cash not on account of any demands made by the landlord but of his own volition and that too "for maintaining good relations", and because "the landlord was nice" to him. The reason so given, to my mind, is least convincing. Of course it is common case of the parties that w.e.f. May, 1984 the rent was increased from Rs.750/- to Rs.900/- per month. I may mention here that the premises were let out to the petitioner company in 1976 and the only increase in the rent was made in May, 1984 and that too by a paltry sum of Rs. 150/- per month. The eviction petition was filed almost after two years of that increase and I see no reason as to why the requirement of the landlord be held to be mala fide merely on account of that single and loo distant an increase in rent.
8. Mr. Marwah has further contended that had the requirement of the landlord been bona fide he would not have kept on extending the lease. It is true that the landlord in this case had been extending the late and the last time he did so was in the year 1984 when he extended it for a year ending on 30th April, 1984. However, what is significant is that after April 30, 1985 he did not extend the lease, Rather, on its expiry he demanded its possession. This, it is contended by Mr. Arya appearing for the landlord, was on account of the increasing demands of the family. He has drawn my attention to the fact that after 30th April, 1984 when the lease was extended for the last time for a year one of his two sons got married. And, it was only thereafter that the first grand son was born to the landlord. I am told that the second son of the landlord was married in September, 1985 and it was on September 25, 1984 when a grand child was born to the landlord from his first son. Of course, I have also been informed that the second grand child was bom on 30th July, 1986, the third on 15th March, 1987 and the fourth on 27th February, 1990. Thus after the last extension there was a significant change in the requirement of the landlord inasmuch as his second son was about to be married and his first daughter in law was in her family way. In any case the record does go to show that the landlord had impressed upon the petitioner company about his requirements. In this respect I seek [o draw force from the documents filed by the petitioner company itself. The petitioner company has placed on the record a letter written by the landlord which is addressed to the Executive Director, Gedor Tools (India) Pvt. Ltd. It runs as under :
"Dear Sir, Kindly refer to my letter dated 1-4-1984 in which you have been requested to hand over the possession of the house bearing No. D-86, Gulmohar Park, New Delhi as the same is required bona fide by me and my family members.
Your kind attention is also invited to the lease agreement dated 30-4-1982. This lease is for a period of two years, expiring on 30-4-1984. As brought to your notice I and my family members badly require the accommodation. Hence, you are reminded by way of this request to hand over the peaceful and vacant possession of the aforesaid house to me before or on 30-4-1984.
Thanking you, Yours faithfully, Sd/-
(B. K. Soni) Press Trust of India, 4, Parliament Street, New Delhi."
9. In judging the conduct of the landlord the real question is whether he had acted honestly or was inspired by some ulterior motive. In the present case the only ulterior motive alleged is the demand of the landlord to increase the rent. The learned Additional Rent Controller has rejected it. So have I. This being the position I find nothing to suggest that by extending the lease the landlord was, in any manner propelled by any ulterior motive. True by extending the lease the landlord had put himself to great hardship but this does not mean that he should be condemned to live in the hell-hole where he is presently living and that too perpetually. It is not a conclusion of law that the petition for eviction filed soon after the letting of premises must necessarily he held to be mala fide.
10. It is contended by Mr. Marwah that by extending the lease the landlord had created self-inflicted paucity of accommodation and since he did not choose to get the premises vacated it must be taken that his requirement is not bona fide and in support he has drawn my attention to two judgments. The first is from the Supreme Court and is reported as Amarjit Singh v. Khatoon Quamarain, . It was a case where subsequent to the initiation of eviction proceedings, one floor of the house had fallen vacant not once but twice but every time it was let out on higher rent. It was argued on behalf of the landlady that rental income being her only source of livelihood, that is why those lettings had taken place. The Supreme Court turned down her contention and held that since the premises had fallen vacant not once but twice and the landlady had not chosen to occupy the same; her eviction petition deserved to be dismissed. I fail to see as to how this judgment in any way comes to the rescue of the petitioner company. In the present case no premises had fallen vacant. The petitioner company had continued to remain in occupation and it appears that the lease was extended at the request of the petitioner company and as already noticed by me above the landlord had impressed upon the company that he badly required the premises for himself and his family members.
11. The second judgment referred to by Mr. Marwah is Shambhu Nath v. Surinder Kumar Sharma, . In that case though the mezzanine floor was got vacated by the landlord on the ground of bona fide requirement it was put to commercial use. Not only this three more rooms were also available to the landlord which too had been put to commercial use by him although the building in question was residential in nature and was situated in a residential locality and was also being used by the earlier tenant for residential purpose only. It was found that the landlord had business accommodation available to him in a commercial complex and yet he had put those three rooms to use not for residential purpose but for commercial purpose. It was in that context that the requirement of the landlord was held to be not bona fide. Once again the facts are clearly distinguishable and as such the authority cited can be considered to be of no assistance.
12. I need not dwell long on the meaning of the word bona fide as used in clause (e) of sub-sec. (1) of S. 14 of the Act. It has been a subject of discussion in numerous judgments but the summon bonus of what has been held is that the expression means in good faith and it conveys an idea of absence oi intent to deceive. If the landlord is not considered to be seeking eviction on false pretext of acquiring additional accommodation with some collateral purpose or motivated by extraneous considerations and the requirement cannot be considered to be inspired by a pure fancy, his requirement deserves to be taken as bona fide. I feel that here is a case which fulfills the conditions.
13. At present the family of the petitioner comprises of himself, his wife and two married sons besides four grand children. The landlord has a daughter who was given away in marriage only a few months back. Though the landlord has claimed that a sister of his father-in-law is also living with him I am not inclined to accept this because this fact has not been pleaded. Anyway, it is in evidence that the entire family has been having joint residence and common mess. Though the daughter of the landlord is now married, Mr. Arya has submitted that she keeps on visiting her parents. Mr. Marwah contends that the daughter having been given away in marriage, her visits and stay cannot be taken note of and rather the pressure on the accommodation available with the landlord should be taken to have eased on account of the daughter having got married. I am afraid, this contention cannot be accepted. We cannot shut our eyes to the social set up of our society wherein a married daughter continues to enjoy a place of pride in her maternal home. Marriage rather binds. It does not severe the ties. Thus while considering the requirement of the landlord her married daughter and her expected visits cannot be lost sight of.
14. With a large grown up family, as noticed above, what is the extent of accommodation available with the landlord? He is living along with his family in a house built on a plot of land measuring 128 square yards. The house is jointly owned by his wife and her sister. The building comprises of three rooms, one kitchen and one WC. Out of the said three rooms one room has been kept locked by landlord's sister-in-law. He is thus left with two rooms, one kitchen and one WC. Can this accommodation be considered to be reasonably suitable to meet the requirements of such a large family? The learned Additional Rent Controller has held it to be highly insufficient and I find no reason to disagree.
14. I may mention that the petitioner company had moved an application under Order 41, Rule 27 of the Code of Civil Procedure for additional evidence alleging that there was a regular room on the first floor of the building and that the landlord had suppressed this information from the Court. It is argued that this concealment, which according to Mr. Marwah is deliberate, destroys the case of the landlord and in support my attention has been drawn to a judgment of this Court in Hakim Misbah-uddin v. Abdul Shakoor, (1987) 2 Ren CJ 294, wherein it was held by a learned single Judge that where the petitioner conceals alternative accommodation in his possession and which is sufficient for his requirement, the dismissal of his petition would be called for. In reply to the application for additional evidence, the landlord claimed that there was no regular room on the first floor and that what had been constructed was only a temporary shed with a roof of asbestos sheets. At the request of the parties counsel I appointed a local Commissioner who visited the spot and got that so called room photographed. A perusal of his report would go to show that what exists on the first floor is a temporary open shed with a roof of asbestos sheets. I may hasten to mention that as per Mr. Marwah the landlord had made changes in that room after the moving of the application for additional evidence and that earlier to it there was a regular room and in support he has drawn my attention to photocopies of the Municipal record placed on the file. I may mention that the perusal of the Municipal record itself would go to show that what had been constructed was not a regular room but a temporary shed. Reference in this connection may be made to the Inspection Report of 12th January, 1979. Of course it does mention the existence of a "room" on the first floor. But then, it also goes to show that the said construction has the roof of asbestos sheets. There is also on record a letter written by the father-in-law of the present landlord which he had written to the Assistant Assessor and Collector of the Municipal Corporation with reference to rateable value of that room. It reads as under :
"Dear Sir, With reference to your notice No. 79535/ 36 dated 17th March, 1979, I have to state that the shed/room constructed on the above premises is temporary one and for self use during rainy season. The amount charged by way of house tax is on the higher side.
It is therefore requested to look into the matter and review the same."
The next document to which reference may be made is Annexure R-3 and it too mentions the construction on the first floor but what is recorded therein is "ACC shed storage". This being the record available I feel that the landlord is fully justified in taking the stand that the construction on the first floor is only a temporary shed with roof of asbestos sheets. The photographs placed on the record by the landlord as well as by the local Commissioner along with his report lend further support to the stand taken by the landlord. This being the position the construction existing on the first floor cannot be taken to be a regular living room and consequently cannot be taken to be of any consequence. Coming to the contention that the landlord was in possession of a regular room on the first floor and he did not make any disclosure about it either in the petition or during trial, as what exists on the first floor is merely a temporary shed with roof of asbestos sheets, and it being not a regular living room I feel, its non-mention either in the pleadings or during trial is hardly of any consequence.
16. Mr. Marwah has further argued that in any case the married sons of the landlord cannot be taken to be dependent upon him as admittedly both are married and are employed. In support he has drawn my attention to a single Bench judgment in Sultan Singh v. Jai Chand Jain, (1966) 2 Del LT 62, wherein it was held that a son who is self-supporting and is in a position to set up a separate residence, cannot in the circumstances be said to be dependent on his landlord faiher. It is contended that if the sons in a case like the present one are also taken to be dependent upon the landlord father it would defeat the very object of the Act. And, in support reliance is placed on certain observations made by a Division Bench of Nagpur High Court in Bageshwari-prasad Srivastava v. Harprasad Shukla, AIR 1953 Nag 210, wherein it was held that if the landlord makes a gift of a house to his son he ceases to have any legal right over that house. This judgment has been used to show that as a father looses his legal right by divesting his title in favor of his son similarly a son loo cannot have a legal right over the property of his father,
17. It is true_ that the judgment of the learned single Judge in Sultan Singh's case, (1966 (2) Del LT 62), lends support to the contention of Mr. Marwah. However much water has flown since the year 1966. Since that judgment a more extended meaning has come to be given to the word "dependent". Reference in this connection may be made to a Division Bench judgment reported as Gobind Dass v. Kuldip Singh, . In that case eviction was sought by three brothers on the ground that the accommodation occupied by them was not sufficient for the members of their family and themselves. The Tribunal found that there was no joint Hindu family and that the premises belonged to only one of the brothers who was a bachelor and that he had sufficient accommodation for himself and that requirement of the family of other two brothers who were independent earning members could not be considered within the meaning of clause (e) of sub-sec. (1) of S. 14 of the Act. It was observed by the Division Bench-(at p. 154 of AIR) :
"The term "dependent" must be construed as meaning somebody not wholly independent or self-supporting and in a position to set up separate residence. Dependence may not in all circumstances be entirely a matter of finance ....."
And "One cannot shut one's eyes to this structure of our society and so to give a restricted meaning to the word dependent would be to provide a definition of this word where the legislature has advisedly chosen not to do so."
In the said judgment reliance was placed upon C. L. Davar v. Amar Nath Kapur, (1962) 64 Pun LR 521 and Vas Dev Dhawan v. Trilok Nath, (1967) 69 Pun LR (D) 260. Reference, in support may also be made to J. L. Mehta v. Hira Lal, 1970 Del LT 484.
18. In any case the sons of the present landlord are not affluent. They are petty employees with meagre salary but large families to support. They cannot thus be said to be wholly independent or self-supporting or in a position to set up a separate residence.
19. Anyhow since the sons have been living with the landlord-father since long and have joint residence and joint mess with him their requirement would be taken to be the requirement of the landlord-father himself because in such a case the landlord and his family members living with him have to be treated as one unit. In this respect reference may be made to Lala Ram v. Kalawati, 1974 Ren CJ 405 (Delhi); S. Kumar v. Om Prakash Sharma, (1980) 1 Ren CJ 36 (Delhi); S. K. Arora v. S. L. Sarna, ; Lala Shambhu Nath v. Pandit Ram Samp Sharma, 1971 Ren CJ 124 (Delhi): T. C. Rekhi v. Usha Gujral, 1970 Ren CR 292 (Delhi). It may be noticed that in J. L. Mehta v. Hiralal, 1971 Ren CJ 272 (Delhi), it was observed that the requirement of a son even though earning and married but living with the landlord-father has to be taken into consideration while determining the requirement of the landlord. Similarly in Sain Dass v. Madan Lal, 1972 Ren CJ (SN) 8 (Delhi), this Court held that the word "himself" has to be interpreted to mean "himself" as living along with his family members with whom he is normally accustomed to live. I hope all this effectively answers Mr. Marwaha's contention.
20. The learned Additional Rent Controller has dissected the evidence and has examined the contentions analytically. I do not find the impugned order suffering from any infirmity or illegally. It is a finding of fact and I find no reason to interfere. Even otherwise I have undertaken the exercise to examine the evidence on the record myself and I find no reason to take a view contrary to the one taken by the learned Additional Rent Controller.
21. For the reasons recorded above I find no merit in the civil revition. The same is hereby dismissed with costs. Counsel fee assessed at Rs. 500/-. The petitioner company is, however, granted three months' time from today to vacate the premises.
22. Revision dismissed.