Delhi High Court
Sudesh Jain vs Parkash Chand Gupta on 2 November, 1987
Equivalent citations: 34(1988)DLT162
JUDGMENT P.K. Bahri, J.
(1) This civil revision under Section 25-B(8) of the Delhi Rent Control Act (hereinafter referred to as 'the Act') has been brought by the landlady challenging the order dated May 26, 1984, of Shri A.K. Garg, Additional Rent Controller, by which he had dismissed the eviction petition brought by the petitioner on the ground of bonafide requirement for residence of the petitioner and her family members covered by clause (e) ofsub-section(l) of Section 14 of the Act.
(2) I have heard the arguments of the learned counsel for the petitioner only and have perused. No one has appeared on behalf of the respondent at the time of final hearing of the petition.
(3) House No. 2714: Chowk Raiji, Gali Pahar Wali, Delhi-6 is stated to have been owned by one Manovati Devi, mother-in-law of the petitioner. This house had been sold by Manovati to the petitioner and her two sisters-in-law, namely, Smt. Brijbala and Smt. Parkashvati. All these three vendees are married to the sons of Manovati. Sale deed of the said house is Ex. AW1/1. It is the case of the petitioner that an oral partition of the said property had taken place amongst the three co-owners and a declaratory decree recognising the said partition had been obtained and the copy of the decree is Ex. AW1/2 and the certified copy of the map showing the different portions falling to the share of each of the three owners has been also proved as Ex. AWI/3. Out of the portion which has fallen to the share of the petitioner, one room on the first floor admittedly is in the possession of the petitioner while Parkash Chand respondent was inducted as a tenant in one room and one kitchen on the first floor shown in red colour in the plan Ex. AW1/8 which has also fallen to the share of the petitioner and Parkash Chand was inducted as a tenant at the rental of Rs. 60.00 per mensem in the year 1973 and it is alleged that the premises had been let out to him for residential purposes only. Another one room and kitchen again located on the first floor in the tenancy of Suresh Chand also had fallen to the share of the petitioner. The petitioner had filed two eviction petitions one against Prakash Chand and the other against Suresh Chand on the similar ground of bonafide requirement of the petitioner and her family members. Both these petitions bad been dismissed by the Additional Rent Controller and the revisions are being decided by me against the said two orders of the Additional Rent Controller today.
(4) It was the case set up by the petitioner that she wants to live in the house in question with her three sons inasmuch as the education of her children was suffering on account of frequent transfers of her husband from one city to another. The petitioner's husband is Squadron Leader in the Indian Air Force. She pleaded that the one room accommodation already available to her in the house in question is not reasonably suitable as she would minimum need two bed rooms, one guest-cum-drawing room and one store besides other amenities for comfortable living in this house. At the time the petition was filed petitioner's husband was posted in Delhi and was having accommodation at R-ll, Vayusenabad, New Delhi.
(5) The respondent had contested the petition admitting the existence of relationship of landlady and tenant between himself and the petitioner and had denied that the petitioner is the owner of the premises in question. He 164 pleaded that the premises had been let out for residential-cum-commercial purpose. He, however, admitted that Manovati was the original owner of the property and Manovati had let out the premises to him. It was pleaded by the respondent that the house in question would not be suitable to the need of the petitioner and her family members keeping in view the good status occupied by the petitioner's husband. He also pleaded that the petitioner had been pressing the respondent to increase the rent to Rs. 120.00 per mensem and as he failed to abide by the wishes of the petitioner, the present eviction petition has been brought in a malafide manner. In the replication the petitioner controverter the pleas of the respondent. The Additional Rent Controller has held that the petitioner is the owner of the premises in question and that premises had been let out to the respondent for residential purpose only but he gave the finding that it is not possible to believe that the petitioner would live with her children alone in the house in question while her husband remains posted at different places and on that finding he dismissed the eviction petition. The finding of the Additional Rent Controller that the petitioner is the owner of the premises in question is well based because the respondent admittedly had attorney to the petitioner and had been paying rent to the petitioner and the petitioner had proved the sale deed as well as the civil court's decree to show that she has become the exclusive owner of the premises in occupation of this tenant. The finding of the Additional Rent Controller that the premises bad been let out only for residential purpose is also well based inasmuch as in the counterfoil rent receipt Ex. AW1/9 which bears the signatures of the respondent the premises had been described as a house. It was also clear that the nature of the premises is residential and one room accommodation would have been hardly sufficient for the residence of the respondent and his family members and the same could not have been possibly intended to be used for commercial purpose.
(6) The crucial question which needed decision was whether the petitioner bonafide need to live in her own house with her family members in Delhi or not ? During pendency of petition the revision petition there occurred certain changes petition in the circumstances of the petitioner inasmuch as one of the sons of the petitioner, who is now 17 years of age, is studying in 12th standard in Kendriya Vidalaya, Andrew Ganj and her two other children are studying in 10th and 8th standards respectively in the Central School of I.N.A. Colony, Andrew Ganj, New Delhi. It has come out in evidence from the statement of the petitioner and her husband AW1 & AW2 that since the petitioner's marriage her husband had been transferred to different places like Guwahati, Bareilly & Sri Nagar and during the pendency of the eviction petition her husband was transferred to Sri Nagar and during pendency of this civil revision he had been transferred back to Delhi. Earlier the petitioner was living in a house in Vayusenabad but when her husband was transferred to Sri Nagar she shifted with her husband to Sri Nagar and obviously now the petitioner's husband had come back to Delhi, the petitioner needs the accommodation for residence for herself and also for her family members dependent upon her for residential purposes. There was no iota of evidence present on the record to show that the petitioner wanted increase in rent from the respondent. Mere bald suggestion given by the respondent in the cross-examination of the petitioner cannot be given any credence. After all it is for the petitioner and her family members to decide as to where they would like to live comfortably. Neither the court nor the tenant can dictate to the landlady that she should or should not live in her own house. Even if the husband of the petitioner is to be transferred again from Delhi, there is no law which bars the petitioner and her family to continue to live in Delhi for better education of her children. Her eldest child is to soon join the college and it cannot be denied that getting education in any college at Delhi would be far better for the better prospects of the petitioner's children. The Additional Rent Controller was not right in giving a finding that it is not possible to believe that the petitioner and her three children can live in Delhi while her husband remains posted at any other place. The Additional Rent Controller had forgotten that it has come in evidence that in other portions of the building the relations of the petitioner's husband are residing and there was no question of petitioner living in this house on her own. Even if the petitioner bad decided to live with her children in her own house in Delhi, the Additional Rent Controller was not justified in doubting the said need of the petitioner when there was no material or evidence brought on the record for drawing such conclusion. It is pertinent to mention that in the cross-examination of the petitioner and her husband it was not suggested as to in what manner the premises in question had been used and if the premises had been used for commercial purpose at all. The respondent examined one witness RW1, who for the first time stated that the respondent is using the premises for the purposes of manufacturing some petti-coats. This is afterthought story of the respondent which has been rightly not given any credence by the Additional Rent Controller.
(7) Examining the evidence from all points of view, I find that the Additional Rent Controller was not justified in negativing the ground of eviction. His judgment suffers from grave illegality and is almost perverse.
(8) I allow the revision petition and pass an eviction order ex-parte against the respondent and grant him six months time for vacating the premises in question. The petitioner shall have costs throughout from the respondent.