Delhi High Court
Rajinder Singh vs Mange Lal on 1 April, 1998
Equivalent citations: 1998VAD(DELHI)640, 73(1998)DLT177
Author: Manmohan Sarin
Bench: Manmohan Sarin
JUDGMENT Manmohan Sarin, J.
1. Petitioners are aggrieved by the order dated 29.5.1997, passed by the Rent Controller, Delhi, in Suit No. E-39/97, refusing leave to contest to the petitioners and passing an order of eviction under Section 14-C of the Delhi Rent Control Act (hereinafter referred to as the 'Act'). The revision petition was admitted to hearing on 1.9.1997 and execution of eviction under was stayed.
2. The facts leading to the filing of the present petition may be briefly noted:
(i) Respondent is stated to be the owner/landlord in respect of premises bearing No. 198, Gautam Nagar, New Delhi. The premises in suit, viz. one room, kitchen, on the ground floor with common use of the bathroom and WC, were let out at a monthly rent of Rs. 80/- to Shri Prem Singh, the original tenant. The present petitioners are the legal heirs of Shri Prem Singh, who died on 2.7.1993. One of the legal heirs of Shri Prem Singh i.e. Smt. Rajinder Kaur Dhaliwal, also expired, leaving behind Shri Sukhinder Singh Dhaliwal, her husband, Charanjit Singh and Baby Pushinder Kaur, as her legal heirs.
(ii) Earlier petition, under Section 14-C of the Act, filed by the respondent/landlord, was dismissed view order dated 1.7.1996, as not maintainable on the ground that the premises were acquired by way of transfer. The Additional Rent Controller held that since the petitioner and his brother petitioned the property in 1994, therefore, it amounted to transfer and acquisition of property by petitioner. The said order was set aside by this Court on 31.1.1997 in C.R. No. 677/96, holding that the partition of the property would be operate as transfer, the property having been acquired by the respondent in 1968 and the partition of coparcenery property between in 1968 and the partition of coparcenery property between the respondent and his brother in 1994, would not operate as a transfer since the brothers were the joint owners and landlords.
(iii) This Court also disapproved of the Additional Rent Controller comparing the accommodation in the premises in Suit with the Type-C Govt. accommodation, holding that the respondent/landlord cannot be forced to live in his own house in the same fashion. The case was remanded back to the Additional Rent Controller to decide the matter afresh on merits. The Additional Rent Controller then passed the impugned order of eviction, refusing leave to contest."
3. The learned Additional Rent Controller held that the respondent/landlord was a Central Government employee, who retired on 31.5.1995. The learned Additional Rent Controller, while passing the impugned order, relied on Anand Saroop Vohra Vs. Bhim Sain, 1995 RLR 47, as well as Surjit Singh Kalra Vs. Union of India, 43 (1990) DLT 447, to hold that it was not permissible to permit the tenant to take pleas in the application for leave to contest on the same basis as available under Section 14(1)(e) of the Act in cases of classified landlords. The classified landlords had been conferred with certain rights, which are different from and independent of the rights available to the general landlord under Section 14(1)(e) of the Act.
While dealing with a case under Section 14-B and that it was held that it was not open to take up defenses available under Section 14(1)(e) in an application under Section 14-B to 14-D of the Act. The learned Additional Rent Controller, therefore, held that the contention of the petitioners, raising the issue of sufficiency or insufficiency of accommodation may be relevant consideration under Section, 14(1)(e) of the Act, but the same cannot be the basis for defense under Section 14-C of the Act. The learned Additional Rent Controller further held that there were no attendant circumstances warranting inference of lack of bona fide on the part of the petitioner to occupy the premises in suit. He, therefore, proceeded to decline leave to contest to the petitioner/tenants and passed the impugned order of eviction.
4. The main contention of the petitioners in the application seeking leave to contest as well as before me, is that the respondent/landlord is admittedly in occupation of accommodation on the ground floor, first floor and the second floor of the property in question, having five rooms, two kitchens, 3 WCs and bathrooms in his possession, while the accommodation of which possession is sought is only one room and a kitchen on the ground floor with common use of the bathroom. It is stated in the application for leave to contest that the respondent/landlord's family comprises the respondent and his wife and they did not have any issue born from the lions of respondents. The respondent in the reply filed to the revision petition as well as reply to the application for leave to contest, filed before the Rent Controller, has disputed this position. According to the respondent, he has only one room, kitchen and common use of toilet, available to him on the ground floor. Similarly, he has one room available to him on the first floor with open space, kitchen, bathroom and a small room on the second floors with terrace. The other rooms on the ground, first and second floors are said to be in possession of his brother, with whom partition had taken place. Curiously the respondent claims that the rooms in his possession are of small dimension, one room on the ground floor being 11 x 8.6" and one room on the first floor being 16' x 6" X 8 x 6" wrongly typed as 10' x 6" x 8' x 6" and a barsati room set. The respondent also claims that his family comprises his wife and an adopted son, who is 14 years old and studying in class VI. The respondent claims to have adopted the child from S.O.S. Children Village and permission for adoption was given in petition No. 180/85, decided on 2.11.1985, by the District Judge, Delhi.
Learned Counsel for the petitioners had urged that this was a clear case of seeking additional accommodation and even the averments in the petition were based on Section 14(1)(e) of the Act inasmuch as the lack of availability of suitable alternative accommodation had been pleaded. The petitioner also urged that the whole intention of the respondent was to dispose of the present property and build an independent house in the 200 sq. yards plot owned by him at Vikrarn Enclave, Delhi. The respondent had in the reply filed denied owning any such plot on which a construction of the house could be made by disposal of property in suit. However, in perusals of the Trial Court record and the judgment delivered in the adoption case, I find that the respondent/landlord had claimed in his assets the aforesaid plot at Vikram Enclave. The petitioners also challenge and claim the petition of October, 1994 between the respondent and his brother to be sham and collusive with the ulterior motive to enable filing of petition under Section 14-C of the Act, in January1995 itself.
5. Be it may, the position which emerges is that even as per the admission of the respondent, he is in possession of one room set accommodation each on the ground, first and second floors of the house in question. The petitioners case, however, is that the respondent has one additional room on the ground floor, i.e. two rooms in all on the ground floor, and one additional room on second floor. These two additional rooms are kept locked. While the respondent claims the said two rooms belonging to his brother. The size of the family being three, the present case would clearly be a case of requiring additional accommodation.
6. During the course of the hearing, it had been enquired from the respondent/landlord, if he was willing to accommodate the petitioners on the first or the second floor, so that he would have the contiguous and adjacent accommodation on the ground floor or first floor available for convenient living. Learned Counsel for the respondent, on 17.4.1998, informed the Court that the respondent was not willing to provide any accommodation to the petitioner either on the first floor or the second floor, in exchange for shifting from the premises in suit on ground floor.
7. While it is true that in a petition under Section 14(B) to (D) of the Act, it is not open to the tenant to question the bona fides of the respondent landlord on the grounds as available under Section 14(1)(e) of the Act, the tenant is not debarred from and is entitled to demonstrate in the application for leave to contest that the bona fide requirement of the landlord is a feigned one and in reality it does not exist.
8. Petitioner has raised triable issues for consideration where it has been disclosed on record that respondent/landlord family, being a couple, and an adopted son, have sufficient accommodation available on the ground floor, first floor and the second floor comprising admittedly three rooms, kitchen WCs, terrace etc. The eviction of the tenant is sought from one room and kitchen on the ground floor. The respondent has also spurned, the respondent suggestion of making available a room either on the first floor or the second floor to the petitioners in exchange of the accommodation of one room and kitchen with the petitioners tenants on the ground floor. This would have made available adjacent and contiguous accommodation to the respondent. However, the question that falls for consideration is that this being clearly a case of seeking additional accommodation and where the petitioner had succeeded in demonstrating prima facie that the question has succeeded in demonstrating prime facie that the question as to whether the respondent's requirement is a bona fide one or a feigned one, needs to be considered in trial. Moreover, the petitioners have raised other pleas in the leave to contest. This is apart from other pleas relating to the collusive and sham nature of partition and allegation of selling the house to build on the plot in Vikram Enclave.
9. Reference in this connection may be made to the decision of the Apex Court in Dr. S.K. Mehra Vs. D.D. Malik in Civil Appeal No. 170 of 1990, decided on 18.1.1990 as well as the decision of the Apex Court in M/s. Rahabhar Productions Pvt. Ltd. Vs. Rajendra Kumar Tandon, , wherein the Apex Court has held as under:
"Bona fide need should be genuine, honest and conceived to good faith. It was also indicated that landlord's desire for possession, however honest it might otherwise be has, inevitably, a subjective element in it. The "desire" to become "requirement" must have the objective element of a "need" which can be decided only by taking all relevant circumstances into consideration so that the protection afforded to a tenant is not rendered illusion. (Para 18) "If the requirement has to be genuine and bona fide, under Section 14(1)(e), can it be said that because the words "bona fide"
have not been used in Section 14C, the requirement of the landlord may not be bona fide or genuine. This meaning, obviously, cannot be given to Section 14C. No landlord, not even a landlord under Section 14C, can be permitted to come to Court for eviction of the tenant for his requirement which is not real, genuine or bona fide. The tenant cannot be evicted on a false plea of requirement or "feigned requirement". The omission of the words "bona fide", therefore, does not make much of a difference." (Para 20)
10. In view of the foregoing discussion, I hold that the learned Additional Rent Controller has misdirected himself in declining the leave to contest to the petitioner. Petitioner has raised triable issues. The impugned order deserves to be set aside and is, accordingly, set aside. Petitioner is grant leave to contest the eviction petition filed against him under Section 14-C of the Act. Parties to appear before the learned Rent Controller on Rule.
This being a petition under Section 14-C of the Act, filed in 1995, the Rent Controller is directed to dispose of the petition as expeditiously as possible and latest by 31st January, 1999.