P. Nijhawan vs K. Bhatia
1987 Latest Caselaw 433 Del

JUDGMENT

P.K. Babri, J.

(1) This civil revision has been brought under Section 25-B(8) of the Delhi Rent Control Act challenging the order dated October 6, 1986 of the Additional Rent Controller, ShriA.K. Garg, dismissing the eviction petition brought by the petitioner on the ground covered by clause(e) of the proviso to sub-section (1) of Section 14 of the Delhi Rent Control Act.

(2) It is now not disputed before me that the petitioner is the owner- landlord of the premises in question and the same had been let out to the respondent for residential purposes only. The facts as have emerged from the testimony of the petitioner coming as AW1 are that he bad purchased the property in question which consists of ground floor, first floor and barsati floor in the year 1963. Ex, AW1/ 1 is the copy of the lease-deed vide which the plot was taken from the Delhi Development Authority and thereafter the construction was made by the petitioner on the said plot. Initially the petitioner lived on the first floor Along with his son and his son's wife, but in the year 1968 his son and son's wife migrated to America and the petitioner shifted to the second floor with his wife. According to him, he lived on the second floor from 1968 onward Along with his wife and his domestic servant but in the year 1977 his wife died and he was living alone on the second floor Along with his domestic servant. One of the petitioner's daughter was living in Canada but her husband died in 1978 and the said daughter Along with her only son returned to India in 1979 and they started living in a house in East Patel Nagar belonging to that daughter's mother-in-law. Incidentally the mother-in-law of the daughter of the petitioner is the real sister of the petitioner and she had no other family member except her daughter-in-law and a grandson. The said house in East Patel Nagar also comprises of ground floor, first and barsati floor. The ground floor has two bed rooms, drawing room and other amenities, so also the first floor. It has also come out in his testimony that another son-in-law of the petitioner who had four unmarried daughters has shifted to the said house in East Patel Nagar and started living on the second floor and his three daughters have since been married and he and one unmarried daughter are living on the second floor of the said house and they have a separate ration card and it has also come out in the testimony of the said son-in-law who appeared as AW3 that even electricity and water charges are paid separately by him and as some sign of token compensation he was paying monthly amount of Rs. 150.00 or so to the petitioner's sister. The petitioner had inducted the respondent as tenant on the first floor in the year 1971 and the letters Ex. AW1/1 to AWI/4 written by the respondent show that the first floor was taken by the respondent for residential purpose only. The petitioner had been letting out the ground floor of the house to different tenants at different times. The last tenant who was inducted in the premises is one Shri Harihar Lal paying Rs. 800.00 per month as rent. He was inducted in the year 1978. With each change of tenant admittedly enhanced rent was realised by the petitioner. The petitioner is now aged about 84 years old. It is his case that in the year 1979 he became seriously ill and so he shifted to the house of his sister so that he could have somebody to look after him and his sister and his daughter, who had no male member to look after them also could be looked after by him. The petitioner presently continues to reside in East Patel Nagar house with his sister, daughter and another son-in-law.

(3) The case set up by the petitioner in the eviction petition is that he has now suffered a heart attack in the month of August 1983 and he had taken treatment in Ganga Ram Hospital and he has been now advised not to strain himself much and he has now a keen .desire to live in his own house as accommodation in the house of his sister has become insufficient inasmuch as his sister's grand son is to be married and he has also to open a dental clinic in that house. He has also taken the plea that his widower son-in-law AW3 would also shift with him to the house in question and thus he bonafide requires the premises in question for occupation for himself and also for his son-in-law and unmarried daughter of son-in law.

(4) The case set up by the respondent was that the petitioner does not in fact have any bonafide need for shifting to the house in question and he is comfortably living of his own accord, in the house of his sister and he is keeping the second floor of the house in question vacant. He has also pleaded that the petitioner has a malafide intention of increasing the rent and he was to evict the respondent and let out the premises at a higher rent or to sell the property for a handsome price. After appraising the evidence the Additional Rent Controller came to the finding that the petitioner does bonafide require the premises in question at all for occupation as residence for himself or for any other member of his family. He gave a finding that the son-in-law of the petitioner is not dependent financially or otherwise on the petitioner and at no point of time that son-in-law was close to the petitioner so as to be available to look after the needs of the petitioner. He also gave the finding that there is no sufficient evidence for showing that the accommodation available in East Patel Nagar house is not reasonably suitable for the needs of the petitioner's sister and her family members. It so happened that during the pendency of the petition, the respondent gave an application for permission to amend the written statement in order to take the plea that the tenant of the ground floor has constructed his own house and has almost shifted to his own house and was keeping certain goods in the ground floor in collusion with the petitioner so as to show that in fact the ground floor is not available to the petitioner presently. That application for amendment was dismissed by the Additional Rent Controller although I find from his order that the petitioner had not opposed the said amendment application. At any rate, the appeal filed against that order was dismissed by the Rent Control Tribunal and a second appeal filed in this Court was dismissed in liming. The Additional Rent Controller had dismissed the eviction petition with a finding that he is not satisfied that the petitioner has any intention of living in his own house. He held that keeping in view the old age of the petitioner and his health it is not possible that he would live in the house in question when on account of his ailment and there being no one to look after him, he had preferred to live in the house of his sister since 1979 onward.

(5) The learned counsel for the petitioner has advanced arguments that the Additional Rent Controller has gone wrong in giving findings which are not based on any facts. She has urged that it was a conjectural inference to arrive at that the son-in-law of the petitioner would not shift with the petitioner and that the petitioner has no desire to live in his own house. She has also argued that the petitioner has a right to decide that he would like to die in his own house and legally also he was not right to continue to live in the house belonging to his sister. It is true that in case a particular landlord bonafide desires to live in his own house in his old age and there are not ulterior motives in seeking eviction of the tenant then normally the court should respect wishes of such a landlord but in case the landlord has not acted in any bonafide manner in seeking eviction of the tenant then obviously that landlord cannot succeed in getting the premises vacated from his tenant. In the present case, it is admitted even by AW4, son-in-law of the petitioner that on account of her disease suffered by the petitioner the doctor had advised the petitioner to live on the ground floor but in spite of the said advise given by the medical experts to the petitioner, the petitioner has chosen to file eviction case on the ground of bonafide requirement against the tenant of the first floor. It is not explained as to why the first floor is more suitable to the needs of the petitioner than the ground floor. If the petitioner is bonafide needing any premises for his residence in the present case keeping in view his advanced ripe age and failing health, the petitioner would have filed eviction petition against the tenant of the ground floor. Counsel for the petitioner has tried to set up a new case in arguments that it is the choice of the petitioner to select one of the alternative accommodation suitable for him, and in the present case the petitioner has selected the first floor for his residence because the ground floor fetches more rent and it is economically advantageous to the petitioner not to evict the tenant of the ground floor and evict the tenant of the first floor who is paying much less rent. It is to be emphasised here that no such case has been set up in the petition that on account of any economic reasons the petitioner has chosen not to file eviction petition against the tenant of the ground floor. Moreover, where the petitioner admittedly is aged about 84 years and is suffering from heart disease and has been medically advised to live on the ground floor it is not possible to bold that the petitioner would weigh the economic factor and choose to evict the tenant of the first floor than the tenant of the ground floor. In the present case where the petitioner who has been advised to live on the ground floor, is not filing eviction petition against the tenant of the ground floor rather shows that in fact the petitioner has no bonafide requirement of the premises in question for his own occupation as residence. If the petitioner could live on the first floor comfortably he can also live comfortably on the second floor which is lying vacant and if the petitioner was being hard pressed by his sister to vacate her house the petitioner could have easily shifted to the second floor and then if accommodation was insufficient for his occupation he could have asked for eviction of the tenant of the first floor or the ground floor. The petitioner has not acted in any bonafide manner in bringing this eviction case. Admittedly even by this date no eviction petition has been filed against the tenant of the ground floor who by now must have completed the construction of his house. The affidavit of the tenant of the ground floor which was brought on record of the lower Court by the petitioner himself clearly shows that the house being constructed by him was almost complete. Counsel for the respondent has cited Freddy Fernandes v. P.L.Mehra, 1973 Rcr 53, wherein it was observed that the reasonable suitability of the accommodation is primarily to be judged on the area of the accommodation, on the condition of the house as also on the locality in which it is situated and its convenience to the landlord and the rent which such accommodation would fetch cannot be regarded as important as the above considerations. On the other hand, counsel for the petitioner has made reference to MohanLal v. Tirath Ram Chopra& Another, 1982 (2) Rcj, 161, wherein it has been held that it is natural aspiration for a landlord in his old age to stay in his own house in the evening of his life. It was observed that in some cases this desire may conceivably become an obsession with the landlord which may affect adversely his health, mentally and physically and in such a case it can be conceivably argued that bonafide need arises for a landlord to have his own house for his residence. It depends on the facts of each case whether a particular landlord genuinely and in bonafide manner is desiring to live in his own house or not. In the present case the petitioner does not appear to be so genuinely inclined to live in his own house because of any sentimental reasons It is true that the petitioner has no legal right to live in the house of his sister. It has been held in Mis. Jagatjit Industries Ltd. v. Rajiv Gupta, 1981 (1) Rlr 105, that a person, occupying a portion of his father's house as a licensee but having no right or title in the property, can seek eviction of a tenant from his own property and accommodation already with him cannot be considered reasonably suitable as he has no legal right to stay in that accommodation being a mere licensee. But in the present case the petitioner who was living in his own house thought of shifting to the house of his sister as it is apparent that she has very close relationship with the petitioner inasmuch as his daughter was married to his sister's son and both, his sister and daughter, had become widows and thus they preferred to live together in one house. The petitioner's other son-in-law who became a widower was also accommodated in that very house, with his four unmarried daughters out of whom three daughters have been married. In fact in case the petitioner was keen to live in his own house, I do not understand why he had not chosen to file eviction petition against the tenant of the ground floor when he had been medically advised to live on the ground floor. In the present case the action of the petitioner in seeking eviction of the tenant of the first floor appears to be actuated by some ulterior motive. So in the present case it cannot be held that the petitioner has any genuine or bonafide desire to live in his own house on account of his old age and failing health. It is not averred in the petition at all that the petitioner's son-in-law is to live with the petitioner in order to look after the petitioner. It was averred that it is only because of petitioner's sister needing more accommodation for her own family that the petitioner's son-in-law is also to shift with the petitioner. It is admitted fact that the petitioner's said son-in-law AW3 owns a house which is also tenanted but no action has been taken by the said son-in-law to evict his own tenant. It is only in evidence that the petitioner has come out with the plea that he has to take his son-in-law Along with him so that he can look after him. No amount of evidence on a plea which is not taken in the pleadings can be looked into. So the Additional Rent Controller was right in holding that it does not appear to be probable that the petitioner's son-in-law has any desire of living with the petitioner in the premises in question. It is settled law that under Section 25-B(8) of the Delhi Rent Control Act, the High Court would have jurisdiction to interfere with the order of the Rent Controller only if it is of the opinion that there has been a gross illegality of material irregularity which has been committed or the Controller has acted in excess of his jurisdiction or has not exercised his jurisdiction vested in him. The High Court has no power to interfere to correct a finding of fact arrived at by the Controller unless it is shown that the finding has been arrived at by mis-reading or omitting relevant evidence which has resulted, in gross injustice being caused. (See Mohan Lal v. Tirath Ram Chopra & Another, 1982 (2) Rcj 161 and Kewal Singh v. Smt. Lajwanti, ). In the present case it cannot be held that the findings of fact given by the Additional Rent Controller are perverse or contrary to evidence or based on no evidence or he has committed any irregularity resulting in miscarriage of justice. The High Court is not supposed to reappraise the evidence and sit in judgment over findings of fact arrived at by the Controller.

(6) In view of the discussion above, I conclude that there is no merit in this civil revision which I hereby dismiss with costs.