Mahmood Ali Khan, J.@mdashArguments of the counsel for the petitioner have been heard ex-parte for final disposal of the revision petition.
2. This petition is filed under sub-section (8) of Section 25B of Delhi Rent Control Act (for short the Act) by the petitioner landlady assailing an order of Additional Rent Controller dated 29th April 1999 whereby he had dismissed an eviction petition filed by her for recovery of possession of the premises from the respondent tenant under clause (e) of Section 14(1) of the Act.
3. Briefly the facts are that the petitioner Smt.Raj Kumari filed a petition on 7th August 1984 for eviction of a tenant Hari Parshad (who has since died and is now represented by the legal representatives who are respondents) from one room in property no. E/4 Hazara Park, Shiv Puri, Delhi under clause (e) of Section 14(1) read with Section 25B of the Act. In the petition her allegation is that she had purchased this property from the previous owner Ganpat Rai under an Agreement of Sale dated 9th May 1978 followed by a registered sale deed dated 29th June 1979 and has become landlord and owner of the property of which the tenancy premises is a part. The premises comprising of one room were let out to the tenant Hari Parshad for residential purpose and he had been residing therein. She herself is living in premises no. G/27 Krishan Nagar, Delhi in which her husband was a tenant but after the death of the original owner landlord her legal representatives are pressurising her and her husband to vacate the premises. As such they have to shift from the said premises. Her family comprised of herself, her husband and one adopted child. It is also alleged that she does not have any other reasonably suitable residential accommodation for her residence.
4. Hari Parshad was granted leave to defend and he filed written statement. In his written statement he denied the subsistence of relationship of landlord and tenant between the parties, the purpose of letting being residential, the tenancy premises being comprised of only one room and the need of the petitioner being genuine and bonafide. He pleaded that he is still tenant under Ganpat Rai Bhatia and the sale deed referred to by the landlady is a bogus document. The premises were let out to him for residential-cum-commercial purpose and from the beginning he had been using the premises for ironing the clothes which was his vocation. The tenancy premises also comprised of one room, one shop and kitchen, bath room, latrine, courtyard in property no. E/4 Hazara Park, Shivpuri, Delhi and the present petition was for partial eviction. The family of the petitioner comprised of only herself and her husband and she has wrongly alleged that she had an adopted son. It is alleged that the present accommodation in occupation of the petitioner is sufficient for her need since three rooms, kitchen, bath room, store etc. are in her occupation therein.
5. In the replication the petitioner reaffirmed her own case and denied that of the respondent. Subsequently the respondent filed an application for amendment of the plaint in order to plead that the petitioner after leaving premises no. G/27 Krishan Nagar, Delhi was now residing in premises no.B-271 Ram Nagar Extension Near Shiv Kalan Mandir, Delhi which is owned by her and which is sufficient for her need. This application was allowed. In the reply the petitioner admitted the factum of her vacating the rented accommodation in Krishan Nagar and her shifting to premises in Ram Nagar Extension but she has alleged that her husband has taken the present premises on rent after vacating the previous tenancy premises.
6. The parties produced oral evidence to substantiate their allegations. The Additional Rent Controller after hearing the arguments of parties held that the petitioner was the landlady and owner of the premises, the premises consisted of only one room accommodation, but the premises were let for residential cum commercial purpose and that the petitioner did not need the tenancy premises bonafide for occupation by herself and other members of her family and further that she was in possession of reasonably suitable residential accommodation. On these findings he dismissed the eviction petition. The petitioner is aggrieved and has filed this revision petition challenging that order.
7. Notice of the revision petition was served on the respondents who are legal representatives of tenant Hari Parshad but they have not appeared and contested the petition.
8. There is no challenge before this Court to the finding of the Additional Rent Controller that the petitioner is a landlady and owner of the premises and that the premises let to Hari Parshad (deceased tenant) comprise of only one room. However, counsel for the petitioner has strenuously argued that the finding of the Additional Rent Controller that the premises were let for residential cum commercial purpose; that the tenancy premises were not required by the petitioner landlady bonafide for occupation by her and other members of her family and; that she was in occupation of another reasonably suitable residential accommodation patently suffers from legal and factual error.
9. As regards the purpose of letting the allegation in the eviction petition was that the premises were let to late Hari Parshad for residential purpose and premises were being used for residential purpose right from the inception of the tenancy. The premises were admittedly let out by the previous owner Ganpat Rai Bhatia. The petitioner has neither relied upon nor has produced any documentary evidence to prove the purpose of letting. There was no rent note or lease deed executed at the time of letting of the premises to the tenant Hari Parshad. However Baldev Raj, AW-1 who is the husband and attorney of the petitioner in his statement on oath has reiterated that the premises were let for residential purpose and were being used by late Hari Parshad for this purpose. Conversely, the tenant Hari Parshad who appeared as RW-1 controverter this statement and stated that the premises were rented for residential-cum-commercial purpose and he was using the premises for ironing the clothes. His claim that the tenancy premises comprised of two rooms etc. has been disbelieved by the Additional Rent Controller. Even otherwise it has been stated on behalf of the petitioner that in an earlier eviction case filed under clause (a) of Section 14(1) of the Act a finding has been recorded that the tenancy premises comprised of only one room and that an appeal filed by the tenant Hari Parshad against that judgment was dismissed. Thereafter Hari Parshad filed second appeal before this Court. The counsel for the petitioner has further submitted that this Court remitted the matter to the Additional Rent Controller for deciding the question of the extent of the tenancy premises afresh and that the Additional Rent Controller had again recorded a finding that the premises let to Hari Parshad consisted of only one room which order has not been challenged in appeal on behalf of the legal representatives of the deceased Hari Parshad. The tenant Hari Parshad had filed electricity bills of the premises as Ext.RW-1/2 to RW2/7 but they show that the tenant was paying electricity charges at domestic rates and not at commercial rates. This also shows that the use of the premises for ironing the clothes was only incidental to the residential use of the premises by him and his family. Hari Parshad tenant has also called the record of shops and establishment office through RW-3 Risal Singh. This witness has stated that a shop in the name and style of Usha Laundry was registered under Shops and Establishment Act in the name of Hari Parshad at the address of E/4 Shiv Puri, Hazari Park, Delhi on 16.12.1980. From the evidence it is clear that the tenant Hari Parshad was running laundry (to be correct ironing of clothes) the tenancy premises since 1980 but at the same time it is also evident that the tenancy premises consisted of only one room and that Hari Parshad was residing in it Along with his family. It is also the case of Hari Parshad that he had taken the premises for residential purpose and was also running his business of ironing the clothes in it. Therefore, the purpose of letting was residential but the tenant was also using it for ironing clothes. From the evidence it also appears that the premises were situated in a residential area. The predominant use of the tenancy premises by the tenant Hari Parshad was for his and his family''s residence. Incidently he also seems to be using the premises for his vocation of ironing clothes in the same premises. Even if it is assumed that Hari Parshad had taken the premises on rent for commercial purpose also i.e. for ironing clothes which was his vocation, still the predominant use of the premises continued to be residential. Therefore, for the purpose of clause (e) of Section 14(1) of the Act the premises shall be deemed to have been let out for residential purpose from which a landlord can seek eviction on the ground of his bonafide personal need. The eviction petition under clause (e) of Section 14(1) of the Act was as such maintainable against Hari Parshad. I am fortified in this view by the recent judgment of the Supreme Court in
" In our opinion, for the purpose of Section 14(1)(e) of the Act, so long as the principal and dominant purpose of letting is residential merely because a mixed user of the premises or user of a part or incidental or ancillary user of the premises is permitted for activities other than residential, the purpose of letting the premises would not cease to be residential and the premises would continue to be governed by Section 14(1)(e) of the Act."
10. Applying the principles of law laid down in the aforesaid judgment of the Supreme Court on the facts of the present case it is held that the finding of the Additional Rent Controller that the ground of eviction under clause (e) of Section 14(1) of the Act was not available to the landlady on the ground of purpose of letting being residential-cum-commercial is not sustainable in law and this finding is set aside.
11. Coming to the question whether the petitioner requires the premises bonafide and she is not in possession of any other reasonably suitable residential accommodation, suffice to mention that at the time of the filing of the eviction petition in 1984 she was residing in House No.G/27 Krishan Nagar. Her husband was tenant in that premises. Her case pleaded in the eviction petition was that the landlord of that premises was harassing her and was putting pressure upon her and her husband to vacate the premises, Therefore, she was unable to continue to live in that house. During the pendency of the eviction case she vacated that house and shifted to another premises no.B-271 Ram Nagar Extension, Delhi. Though her husband vacated Krishan Nagar premises on 21.4.1987 (Ext.A-4) yet she did not bring it to the notice of the court. She also did not amend her eviction petition. It was only after Hari Parshad tenant filed application for amendment of the written statement in September 1991 to plead about the occupation of premises no.B-271 Ram Nagar Extension, Delhi by her that the petitioner pleaded that her husband had taken the said premises on rent. Subsequently, it was pleaded that these premises were owned by her married daughter Smt.Shashi Bala and that her husband was paying rent to her. Her husband Baldev Raj,AW-1 also filed the rent receipts Ext.A5 to A10 to show that he was paying rent to Smt.Shashi Bala. The rent receipts filed by him pertained to the year 1992 while the petitioner shifted to the said accommodation in 1987. This period falls after the amendment application was filed by the tenant Hari Parshad to plead that the petitioner was now living in house no.B-271 Ram Nagar Extension Near Shiv Kalan Mandir, Delhi and that the premises were owned by the petitioner. Baldev Raj, in his statement as AW-1 when recalled for further statement did state that he has taken on rent Ram Nagar premises from her daughter and was paying rent to her. The husband of the daughter of the petitioner was shown in the list of witnesses but for the reasons best known has not been examined. The daughter has also not been examined as a witness by the petitioner. In the cross-examination Baldev Raj,AW-1 admitted that the documents of title of the said house in favor of her daughter were in his possession and they were given by him to his counsel but no reason has been given as to why those documents of title were not produced. Hari Parshad tenant, on the other hand, consistently suggested in the cross-examination that the said property was owned by the husband of the petitioner.
12. The tenant Hari Parshad in his deposition alleged that the said premises were owned by the husband of the petitioner and not by her married daughter Smt.Shashi Bala. He also examined RW-2 Karan Singh, Dy. Assessor and Collector of the MCD. On the basis of the record of the House Tax Department he deposed that premises no.B-271 Ram Nagar, Delhi was assessed in the name of Smt.Angoori Devi since 1979 and that as per last survey report (which was conducted only a day before his statement was recorded in November 1995), the ground floor was in occupation of Baldev Raj who was allegedly paying rent at the rate of Rs.900/- per month and the first floor was in self occupation of the owner but the assessment still continued to be in the name of Smt.Angoori Devi. He also stated that as per the information collected by him through the survey a day before his statement was recorded, the property has been purchased by Smt.Shashi Bala in May 1987 and she was in occupation of the first floor. The survey of the said property was conducted only one day before his statement was recorded in the court in November 1995. Therefore, the survey so far has showed that Baldev Raj was a tenant on the ground floor and that he was paying rent or that Smt.Shashi Bala had purchased this property from Smt.Angoori Devi in May 1987 does not inspire confidence. The petitioner was in possession of the best evidence to prove that premises no.B-271 Ram Nagar was owned by her married daughter Smt.Shashi Bala and not by her own husband. Her husband and attorney was in possession of the registered documents to prove this fact and had even handed them over to the counsel but for unexplained reasons the best evidence has been withheld. Even Smt.Shashi Bala or her husband has not been examined to corroborate the allegations of the petitioner that her husband had taken the said premises on rent. The finding of the Additional Rent Controller that the petitioner has not been able to prove that her husband was not owner of premises no.B-271 ram Nagar in which she was residing with her husband and adopted son or grand son, Therefore, does not suffer from any legal or factual infirmity.
13. The onus was upon the petitioner landlady to prove that her need of tenancy premises for occupation for her own residence and the residence of members of her family dependent upon her was bonafide and further that she was not in occupation of any other reasonably suitable residential accommodation which she has failed to discharge.
14. Here it may be noticed that the family of the petitioner comprised of herself and her husband. Besides, she also claims to have an adopted son living with her. A controversy was raised on behalf of the tenant that the child living with the petitioner was her maternal grandson i.e. son of her daughter Smt.Shashi Bala and was not her adopted son. The petitioner however examined B.S.Rawat, Sub Inspector, Rationing Department as AW2 to prove that her ration card was for three members of the family including the child. Any way the tenant Hari Parshad in his statement as RW-1 did not deny that the son of the petitioner was also residing with her. It means that there was no dispute that the petitioner, her husband and their grand son or adopted son were living as a family.
15. As regards the accommodation in premises no.B-271 Ram Nagar, Delhi there was no dispute that it comprise of four rooms. The petitioner, however, disputed the size of the rooms which was in her occupation there. She did not dare to file site plan of that accommodation. It was also not her case that the said accommodation was not reasonably suitable for her. Her case after the tenant Hari Parshad amended the plaint to plead that she was occupying Ram Nagar premises as owner was that it was a rented premises. This case has been disbelieved by the Additional Rent Controller and for good reasons. No other reason was pleaded apart from the fact that she could not continue to live in a house as a tenant which was owned by her married daughter. Since the Additional Rent Controller has disbelieved that the said accommodation was owned by her married daughter and the husband of the petitioner was tenant therein her contention that she wanted to occupy her own house lacks credibility. For these reasons also the finding of the Additional Rent Controller that the petitioner was in possession of reasonable suitable residential accommodation does not suffer from any error of law or fact.
16. The Supreme Court in
13. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretense or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself__whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretense of pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the Court is satisfied of the bonafides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the Court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against.
14. The availability of an alternate accommodation with the landlord i.e. an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bonafides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstance would enable the Court drawing an inference that the need of the landlord was not a felt need or the state of mind of the landlord was not honest, sincere, and natural. Secondly, another principal ingredient of clause(e) of sub-section(1) of Section 14, which speaks of non-availability of any other reasonably suitable residential accommodation to the landlord, would not be satisfied. Wherever another residential accommodation is shown to exist as available than the Court has to ask the landlord why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the Court that the alternative residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the land has succeeded in demonstrating objectively to exist. Needless to say that an alternate accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members would be relevant facts. While considering the totality of the circumstances, the Court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come".
17. The landlord''s desire to occupy the premises has to be bonafide i.e. Honest, real and genuine and should not be for any other extraneous consideration. The onus was upon the petitioner landlady to prove the existence of this ground. Ordinarily landlord is the best judge of his own need and where he had two or more alternative accommodations available and wanted to occupy one of them for his own residence, his claim could not be questioned by the tenant. But in the instant case the petitioner has not been able to prove that she was residing in a accommodation which was taken on rent by her husband from their married daughter Smt.Shashi Bala and, Therefore,she wanted to leave that premises and live in her own house. It is not her case that the said accommodation is not reasonably suitable residential accommodation.
18. Applying the principles of law laid down by the Supreme Court on the facts of this case there is no escape from holding that the petitioner has not been able to prove that the tenancy premises are bonafide required by her for occupation of self or other members of her family and that she does not have any other reasonably suitable residential accommodation for occupation. She failed to establish the ground for eviction of the tenant under clause (e) of Section 14(1) of the Act.
19. Having regard to the above discussions there is no merit in the revision petition. The order passed by the Additional Rent Controller dated 29th April 1999 cannot be said to be not according to law. It does not call for interference by this Court. Accordingly, the revision petition is dismissed.
