Shaukat Bano vs Uttar Pradesh Co-Operative ...
1986 Latest Caselaw 83 Del

JUDGMENT

G.C. Jain, J.

(1) MST. Shaukat Bano, the landlady, has filed this revision petition against the order of the Controller, dated May 9, 1985 dismissing her application for eviction of the tenant (respondent herein).

(2) Smt. Sushila Devi was the owner of the property No. P-13, N.D.S.E. Part Ii, New Delhi. She let out its ground floor to the respondent, U.P. Co-operative Federation Ltd. on a monthly rent of Rs. 725.00 vide lease deed dated July 1, 1969. Afterwards she sold this property to the petitioner by means of a sale deed dated March 30, 1970. The petitioner consequently became the landlady.

(3) On August 25, 1980 she brought a petition seeking eviction of the tenant from the said premises. According to the averments made in the petitioner she was the owner of the premises and the same had been let out only for resident

(4) The tenant resisted the petition. The pleas raised were that the premises had been let out for residential-cum-commercial purposes and were being used for both purposes with the consent and knowledge of the landlady. The landlady was residing in the defense Colony house of her husband which was a palatial house and did not bonafide require the premises in dispute. Allegations retarding illness of her husband and the agreement to sell defense Colony house were denied In the alternative it was pleaded that the said agreement and the act of shifting to the second floor of this property were a devise to get the premises in dispute vacated.

(5) Learned controller held that the letting purpose was residential cum-commercial and actual user was also residential-cum-commercial. The petitioner's husband was suffering from cancer but he looked hale and hearty when he attended the court and climbing of stair cases had no impact on the illness and consequently second floor accommodation was reasonably suitable and her requirement was not genuine or bonafide because her husband had sold his defense Colony house during the pendency of the petition. With these findings the eviction petition was dismissed. Hence this revision petition.

(6) Mr. M. Ahmed, learned counsel for the landlady, submitted that Clause (9) of the lease-deed provided that the premises shall be used as a guest house. Later part of the said clause related to the obligation regarding payment of taxes and had nothing to do with the letting purpose. The finding of the learned Controller to the contrary, argued the learned counsel, was based on misinterpretation of Clause (9) and was erroneous. Clause (9) of the lease deed reads :- "9.That the lessee shall use the premises as a Guest House. In case the premises are used for other than residential purposes, the Lessee shall have to bear himself the extra taxes, penalties, fines, etc. imposed by the local or any other authorities in this behalf."

(7) The first sentence of this clause provides in clear and unambiguous terms that the lessee was to use the premises as a guest house. User of the premises as a guest house is a residential user (see M/s. Jagjit Industries v. Rajiv Gupta, 1980 (2) Rcj 769. Does the later part of clause 9 convert the user from residential to residential-cum-commercial ? In my view, the reply must be in the negative. This later part of clause 9 simply provides for payment of taxes in case of contravention of the terms regarding the letting purpose mentioned in the opening sentence, and does not affect the letting purpose which is user as a guest house The demised premises have been described as "Entire ground floor of F/13, N.D.S.E. Part Ii, New Delhi, consisting of one Drawing and Dining room, three bed rooms, with attached baths, kitchen, garage and servant quarter and loft over passage." Under clause 10 of the lease deed the lessee was required to comply with all the rules and regulations of the local authorities, whatsoever with relation to the demised premises. Notices Rw 1/8 and Rw 1/7, issued by the Delhi Development Authority to the tenant show that under the Zonal Development Plan premises could be used only for residential purpose. The tenant had produced certain notices submitted by its officer who had been deputed to find out a building to be taken on lease He had stated that "as this house is meant for residential purpose the usual house tax of 17% will have to be paid. Bit if it is used for office purposes, there is likelihood of penalty and then the house tax would be @ 22" ø/o". This shows that the premises were meant for use as residential purpose and the lessee undertook to comply with the requirement. It is, therefore, clear that the agreement was to use the premises for residential purpose only.

(8) In V.S. Talwarv. Prern Chandra Sharma, 1984 (!) Rent Control Reporter. 429, clause 12 of the lease deed provided "That the lessee shall use the premises for the purpose of Residential/Personal office-only and not for commercial purposes." Another clause provided that the Lesser shall pay all the taxes of any kind whatsoever including house tax, ground rent as are or may hereinafter be assessed on the demised premises by the municipality or any other authority whatsoever provided the premises are used for residence only". On examining the later clause the Supreme Court observed:- We do not think the terms of this clause support the stand of the lessee As. contemplated under the Transfer of Property Act a document of lease normally provides the rights and obligations off both the Lesser and the lessee. In stipulating the rent payable for the use and occupation of the premises the Lesser had undertaken the liability of payment of taxes as described therein as long as the premises were used for residence only .

(9) This decision, in my view, fully applies to the facts of the present case. The only difference in this case is that instead of two separate clauses both the terms were incorporated in one clause.

(10) There is no evidence to justify the finding of the learned Controller that the premises had been used for residential-cum-commercial purposes The tenant had examined two witnesses. Davinder Sing RW-2 Stated nothing about the actual user. On the other hand, he said that the building was residential one. S.K. Gupta RW-1 did say that the premises were always used for residential-cum-office-cum-guest purposes His statement however, is vague. The nature of non-residential use or the office of not been spelt out. He has not stated that there was any branch or office of the tenant-company for conducting any business/commercial activity no document, namely, books of account, order books, ledgers, employees' register etc., kept for carrying on business or maintaining an office, has been produced. A finding regarding the user being residential-cum-commercial on such a statement of the branch manager of the tenant cannot be returned.

(11) Learned counsel for the tenant relied on the notices issued by the Delhi Development Authority to the tenant complaining of misuser. These notices, however, are of not much value. Nobody from the Authority has been examined. The Authority might have objected to the user of the premises as a guest house.

(12) Reliance was also placed on the nothings of the officer of the tenant which show that the building was required to be taken for opening branch office. In another noting it was stated that the said officer had taken possession of the office building. In a letter enclosing the cheque for the rent, the premises were described as office building. The words "office building in these documents, in my view, have been loosely used. the evidence contained in these documents has no value in the presence of the terms in the lease deed that the premises were to be used only as a guest house.

(13) For these reasons, in my view, the finding of the learned Controller regarding letting purpose was erroneous being based on misinterpretation of clause 9 and cannot be sustained. It has been proved that the letting purpose was residential only.

(14) The next question that requires consideration is regarding the bonafide requirement and non-availability of a reasonably suitable accommodation. The requirement of the landlord must be honest, the need must be the need of the reasonable person. Mere assertion of the landlord that be requires the tenanted premises is not sufficient. It is the duty of the court to determine objectively whether the requirement was genuine or not. The landlord must also prove that alternative accommodation available to him is not reasonably suitable. The suitability of the accommodation with the landlord has also to be determined on reasonable basis.

(15) As seen above, the landlady has sought eviction on the allegation that her husband Mohd. Akil was suffering from cancer. He had to go to foreign countries and spend lakhs of rupees on his treatment, and to pay his debts he had entered into an agreement to sell his house No. C-165, defense Colony, New Delhi, and had delivered its possession to the vendee, and she had shifted with her family members on the second floor of this very property which accommodation was not reasonably suitable.

(16) Learned Controller believed the version that Mohd. Akil was suffering from cancer. He, however, still held that the second floor accommodation where he was living with his wife, the landlady, was reasonably suitable. In support of this finding he gave four reasons, namely, (i) there was no evidence to prove that after December 28, 1982 Mohd. Akil was advised not to climb stairs ; (ii) the ailment of cancer may be serious but the climbing of stairs may have no impact on the patient; (iii) Mohd. Akil had been attending the court and was found hale and hearty ; and (iv) had he been advised not to climb stairs he would not have sold the house in defense Colony.

(17) In my judgment, the finding returned by the learned Controller is unreasonable and unrealistic. Dr. A.K. Rai Chaudhary, Senior Consultant Surgery and Deputy Medical Director, Holy Family Hospital, New Delhi has deposed that because of his radiotherapy in abdomen Mohd. Akil had got lack of function of intestine for which he suffers from recurrent extreme diarrhoea electrolytic balance and marked weakness and required regular treatment for this in addition to his anti-cancer treatment. He further stated that the p,atient was required to maintain rest, genera) health improvement and periods of complete bed rest, whenever he showed signs of recurrence and the climbing of stairs was not in his interest, specially when he had this episode of diarrhoea and recurrence of the disease. There is nothing to disbelieve the evidence of Dr. Chaudhary. In the presence of this statement it cannot be held that the second floor accommodation was reasonably suitable. Climbing stairs was hazardous to his health. The landlady, in my opinion, was not required to prove that it was impossible for his husband to climb stairs. All that was required to be proved was that it was inconvenient and a health hazard for her husband to live on second floor. This stands proved from the statement of Dr. Chaudhary.. Reasons No. I to 3 were not, therefore, valid reasons.

(18) MOHD. Akil admittedly owned a house No. C-165. defense Colony, New Delhi He was residing there with his wife-landlady at the time of the filing of the eviction petition. On July 19, 1980, i.e. before the filing of the eviction petition, he entered into an agreement to sell this house to Raj Kumar. The vacant possession was to be given at the time of registration of the sale deed. Because her husband was required to deliver the vacant possession to the vendee the landlady sought eviction of the tenant. During the pendency of the eviction petition, on December 28, 1982, her husband agreed to sell this house to M/s. Consolidated Aerials (P) Ltd, and handed over the possession of the same to the vendee and himself shifted with his wife on the second floor of the premises in dispute. From these facts learned Controller raised two inferences, namely, that Mohd. Akil was able to climb stairs and bad there been any inconvenience he would not have sold the house and; that the requirement of the landlady was not genuine. He said Had the requirement of the petitioner for her husband been genuine and bonafide, she would have sold her own house and she would not have completed her husband to shift to the premises in dispute on second floor

(19) No doubt, if a landlord brings about the paucity of accommodation by selling the house where he residing with a view to create ground for eviction his need may not be considered genuine or bonafide. But malafide cannot be inferred in every case where the landlord sells his house. It is the duty of the court to examine if the said sale was with a view to create a ground of eviction or for any other genuine cause. The case set up by the landlady was that her husband had to sell the said defense Colony house to raise funds required for his treatment in foreign countries and in India and to pay his debts. The evidence of Dr. Chaudhary proves that Mohd. Akil was referred to Usa for treatment of cancer. He had extensive investigations there. On his return from Usa he was being regularly followed in Tata Memorial Hospital, Bombay, and Holy Family Hospital, Delhi. In this background, there is no reasons to disbelieve the statement of Mohd. Akil who has deposed that he had to raise funds for his treatment and had to go to Usa and was now required to go to Bombay once or twice a month and had to Spend heavily on his traveling expenses and costly medicines and for that purpose he disposed his house. To exist is human instinct. If a person suffering from a dreaded disease of cancer cells his property to raise funds for his treatment he commits no crime. No malafide can be inferred in such circumstances.

(20) Learned Controller observed that instead of selling defense Colony house the property in suit could be sold. In my view, the landlady or her husband was the best judge to choose the house to be sold. It may be pointed out that a house with the tenants is not likely to fetch a good . price. The sale of the property in dispute might not have fulfillled the requirement. In all these circumstances, no malafide could be inferred because of the sale of defense Colony house. Because of the said sale it cannot be said that Mohd. Akil could conveniently climb stairs and the climbing of stairs would have no impact on his health. The findings returned by the learned Controller were erroneous and cannot be maintained.

(21) For the reasons aforesaid, I hold that the letting purpose of the premises in dispute was residential and the landlady bonafide required the same for occupation as residence for herself and members of her family and had no other reasonably suitable accommodation.

(22) I consequently accept the petitioner, set aside the impugned order and instead grant an order for recovery of possession of the premises in dispute in favor of the petitioner against the respondent. The respondent is allowed six months' time to vacate the premises. Parties are left to bear their own costs.