Topan Lal Dhar vs Yash Pal Aggarwal
1986 Latest Caselaw 293 Del

JUDGMENT

Sultan Singh, J.

(1) This petition under section 25B(8) of the Delhi Rent Control Act, 1958 (for short 'the Act') challenges the judgment and order dt. 27th May 1935 of the Additional Rent Controller passing an order of eviction against the petitioner on the ground of bona fide requirement under section 14(1)(e) of the Act. Learned counsel does not dispute that the respondent is the owner of the premises and the same were let for residential purposes. He however, submits thatthe respondent has sufficient accommodation in his possession and the present eviction petition is barred under the principles of res judicata.

(2) Briefly the facts are that the respondent Yash Pal Aggarwal has two brothers, namely, Lekh Ram and Bhagwat Swarup The family of the respondent his brother, and parents have a shop at Yusaf Sarai at the back of which there is residential portion. Earlier the respondent was living in the residential portion at Yusaf Sarai along with his parents. The shop at Yusaf Sarai is a rented accommodation, the house in suit is C-13, Green Park New Delhi. The ground floor of this house was occupied by Lekh Ram and Bhagwat Swarup. The first and second floors arc in occupation of the tenants. The respondent and his two brought an eviction petition against the present petitioner in 1979 on the ground of bona fide requirement. During the pendency of the earlier eviction petition one of the tenants occupying first floor of suit house C-l3, Green Park, New Delhi vacated the portion under his tenancy and it was occupied by Bhagwat Swarup, but still the Additional Rent Controller by his order dated 29th April, 1981 dismissed the eviction petition on the ground that the tenant had vacated a portion. The respondent and his two brothers thereafter partitioned the property by means of a registered deed dated 18th March, 1983 (Ex.A.W.1/1). The first floor of the house by partition fell to the share of Bhagwat Swarup who was already in occupation of a portion and front portion of the ground floor fell to the share of Lekh Ram. The rear portion of the ground floor along with second floor on partition fell to the share of respondent and as such he became its exclusive owner. Bhagwat Swarup occupied first floor, Lekh Ram who was living on the back side of the ground floor shifted to the front portion of the ground floor, and the respondent who was living in the portion of the rented shop at Yusuf Sarai shifted to the rear portion of the ground floor of suit house. The petitioner is a tenant on the second floor.

(3) The portion on second floor under the tenancy of the petitioner consists of two rooms, store, toilet, kitchen and terrace shown in plan Ex. Aw ". The rear portion of the ground floor under the occupation of the respondent consists of two bed comes each measuring 13' x 11', toilet, kitchen and verandah with open space, shown in the plan Ex. Aw 1/3. Besides this the respondent has in his occupation Mumty on the second floor shown 'X' and 'Y' in the plan Ex. Aw ". The question argued by the petitioner is that the accommodation shown in Ex. Aw " and the said accommodation shown in Ex. Aw 1/3 is sufficient for the requirement of the respondent and his family members. It is not disputed that the family of the respondent consists of himself, his wife, (wo sons now aged 15 and 14 years, two daughters aged 18 and 17 years. The Add). Rent Controller has given a finding that the accommodation at the disposal of the respondent consists of two bed rooms, kitchen, bath room, toilet and covered verandah on the ground floor and mumty on the second floor. Learned counsel for the petitioner submits that the verandah is a covered verandah and it can be used as a living room, that the portion marked 'X' and 'Y' in the plan Ex. Aw 1/2 on second floor is living accommodation, and therefore the laid accommodation is more than sufficient. At the time of admission of Revision Petition in this High Court. G.C. Jain, J. by order dated 13th February, 1986 appointed Miss Sujata Mehra, Advocate as a local commission to visit the property in dispute and prepare a rough plan of the Barsati floor (second floor) and back portion of the ground floor. She submitted her report dated 19th February, 1986 along with the plans of the rear portion of the ground floor and the Barsati floor showing possession of the petitioner and the respondent. In the rough plan of ground floor, I find that the accommodation shown by the Local Commissioner in possession of the respondent is similar to the accommodation shown in the plan Ex. Aw 1/3 marked by the words, A, B, C, D. E. F and X. The portion in the plan shown red (corresponding to space 'X' in El. Aw 1/3) has a tin roof covering with no door and the lobby (corresponding to verandah F) has an iron grill with no wall or door. In other words the portion X and F shown in Ex. Aw 1/3 are not the living rooms and cannot be used as such. Thus there are only two living rooms on the ground floor marked A and B measuring 13' x 11' each. Space C and D in this plan is toilet while 'E' is kitchen. The sizes of mumty market X and Y (Ex. Aw ") and the plan of the Local Commissioner are 8"'x 4' and 8'7"x 3"". The space called Mumty is in the stair hall. It is an empty space at the top of the building where the stairs end. It cannot be used for residence purposes. It is only fit for use as a store. The area of this mumty is not even 100 sq. ft. It is well known that the building bye-laws of the Municipal Corporation of Delhi provide that no habitable room shall have a floor area of less than 100 sq. ft. In other words the two mumties on the second floor cannot be used for residential purposes. The result is that the respondent has only two living rooms measuring (13'x 11') each on the ground floor for residential purposes besides bath, kitchen, lobby, verandah and two mumties on the second floor. The family of the respondent consisting of six numbers cannot be accommodated in these two rooms. The petitioner tenant has also got two residential rooms. Thus the accommodation in possession of the respondent and the petitioner consists of four residential looms besides other amenities. It cannot be said that the requirement of the respondent with respect to the two rooms in possession of the petitioner is not bona fide. I am therefore of the opinion that the accommodation in possession of the respondent is most insufficient for the requirement of himself and his family members.

(4) The next question argued by the petitioner is that previously the respondent and his two brothers had filed an eviction petition which was dismissed on 29th April, 1981. It is admitted that during the pendency of the earlier eviction cafe the tenant on the first floor had vacated a portion. It is also admitted that Bhagwat Swarup, brother of the respondent had then occupied the portion vacated by the tenant. In terms of the partition deed also this portion then occupied by Bhagwat Swarup has fell to this share. Learned counsel argued that as the previous eviction petition was dismissed on the ground that the tenant had vacated the portion of the first floor, the present eviction petition is barred by principles of res judicata. He submits that the respondent is not entitled to claim eviction on this ground. I am however of the opinion that the dismissal of one application for eviction of a tenant does not debar a second application, on the same ground if it can be proved to the satisfaction of the Rent Controller that the landlord wants the residential premises for his own occupation. In other words if there is a change of circumstances the second petition will not be barred by res judicata. Now it has to be seen what is the change of circumstances, since the filing of the earlier eviction petition on ground of bonafide requirement. The earlier petition was filed in 1979 when the sons of the respondent were aged 8 and 7 years and daughters were aged 11 and 10 years. The children could have been accommodated at that time in one room. Now they have grown up and they require separate rooms. They are students. The size of the rooms is only 13' x 11'. Now there four children cannot be accommodated in one or two rooms only. Further at the time of earlier petition the respondent was only a co-owner along with his two brothers. When a tenant on the first floor vacated the tenanted portion, it was occupied by Bhagwat Swarup and the respondent at that time had no authority to object to the occupation of the said portion by Bhagwat Swarup. Now there has been a partition. The respondent is the exclusive owner of the portion under the tenancy of the petitioner. These facts are sufficient to establish that there has been a complete change of circumstances. If the argument of the petitioner is accepted, it would mean that the respondent on account of dismissal of the earlier eviction petition by order dated 29th April. 19 I would never be in a position to get any accommodation for himself and his family in future. I am therefore of the opinion that the principle of res judicata is not applicable to the facts of the present case. There has been complete change of circumstances. Learned counsel for the petitioner has also argued that there is a space at the back of the rented shop at Yusaf Sarai, It is correct that there is a shop at Yusaf Sarai and at the back of it there is a residential portion where admittedly the parents of the respondent have been residing. The respondent has no portion in his occupation at Yusaf Sarai for residential purposes. In any case there is great distance between the rented shop at Yusaf Sarai and the property in suit at Green Park. The family cannot be bifurcated for the sake of the petitioner-tenant.

(5) There is no merit in the revision petition and it is dismissed with no order as to costs.