H.S. Treoban vs Hindustan Kokoku Wire Limited
1988 Latest Caselaw 328 Del

JUDGMENT

P.K. Bahri, J.

(1) This civil revision has been brought under Section 25-B(8) of the Delhi Rent Control Act against order dated November 1986, of Shri J.M. Malik, Rent Controller, Delhi, by which he had dismissed the eviction petition brought by the petitioner on the ground of eviction covered by Clause (e) of Sub-section (1) of Section 14 of the Delhi Rent Control Act (for short 'the Act').

(2) The facts that there exists relationship of landlord tenant between the parties and that premises comprising of the ground floor of house No. D-293, defense Colony, New Delhi, having been let out to the respondent for residential purpose only and that petitioner-landlord is the owner of the property in question are not disputed before me. The Controller had negatived the ground of bonafide requirement for residence on the ground that the landlord and his family members are in possession of reasonably suitable alternate accommodation and the landlord does not bonafide require the demised premises for occupation as residence for himself or for any family members dependent upon him. These findings of the Controller have been challenged by the landlord.

(3) As per averments in the petition, the premises in question were let out originally to the respondent with effect from July 20, 1973 and a new lease deed was executed on April 18, 1979. However, in evidence it has come out that in fact, the premises stood let out to the respondent for the last 16-17 years prior to the filing of the eviction petition. The eviction petition was filed on July 13, 1982. The case set up by the petitioner, in brief, was that the petitioner's family comprises of himself, his wife who was aged about 60 years at the time of filing of the petition and was stated to be having serious hrt disease, and one married son, his wife and one child, and second son who was employed in Army and was, at the relevant time, posted in field area while his family comprised of his wife and two children. The petitioner has another married son, who is admittedly living in Usa while two daughters of the petitioner also are married and are living with their husbands and families separately. The petitioner and his family members admittedly were in occupation of the first floor which has similar accommodation as is available on the ground floor and one garage on the ground floor. The barsati floor, which I will call 'second floor' because there appears independent set available on the second floor. At the time of filing the petition the said barsati floor was also in possession of the landlord. The petitioner pleaded that due to petitioner as were as his wife suffering from heart disease they have been advised not to climb stairs and thus, the demised premises which are located on the ground floor are bonafide needed for their occupation. It was also pleaded that barsati floor is not suitable to the needs of the petitioner and their family members as the same cannot be conveniently used for lack of better water supply and also due to extreme heat in summer.

(4) The respondent controverter these facts pleading that in fact, the petitioner and his wife are comfortably living in the first floor and second floor and they do not need any additional accommodation and they do not suffer from any ailments. It is admitted fact before me that the respondent had offered to exchange the demised premises with the first floor but the petitioner did not agree to this offer. Even during the course of the arguments in this revision such an offer was made by the counsel for the respondent but was declined on behalf of the petitioner. It is also now established that the petitioner had issued advertisements in the newspapers for letting out the second floor and in fact, during the pendency of the case, the second floor was let out. The Controller gave a finding that the petitioner and his wife are heart patients but still he held that there does not exist bonafide need for the petitioner and his wife to shift to the ground floor inasmuch as for no good reason the petitioner had declined the fair offer of the respondent to exchange the ground floor with the first floor. He also held that the accommodation, which was available to the petitioner on the first floor as well as on the second floor, was sufficient for the needs of the petitioner and his family members.

(5) Plan Ex. Aw 2 shows the whole of the house. The green colour portion is in possession of the petitioner. The second floor, which is called barsati floor by the petitioner, comprises of three regular rooms and one tin shed with other facilities of toilet and kitchen etc. The rooms on the second floor are quite good rooms and it cannot be held that the second floor is not suitable for the residence of the petitioner or his family members. However, the crucial question which has been lost sight of by the Controller is whether on account of serious heart ailments being suffered by the petitioner and his wife the petitioner bonafide need the ground floor or not for his residence and for residence of his wife. There is no law which requires that in order to show bonafide the landlord must offer alternate accommodation to the tenant so that the landlord could get possession of the ground floor. In the present case, on the ground that the landlord had declined to exchange the ground floor with the first floor would not be sufficient to hold that the landlord does not bonafide require the demised premises for occupation as residence for himself and for his wife who have been proved to be suffering from serious heart ailments. At the time the eviction petition was filed, petitioner's one married son, namely, Ashwani, his wife and one child were living with the petitioner. That son has now another child during the pendency of the proceedings. The petitioner's other son, who is employed in Army, was posted outside Delhi. During pendency of the eviction case, he with his wife and two children also started living with the petitioner. This fact was not controverter by Rw 1 S.K. Somani when he was put questions in that respect in cross-examination. That son is now living with the petitioner. In order to prove that the petitioner and his wife are suffering from heart ailments, the petitioner had examined Aw 2 Dr. Col. G. Sarup, who proved the medical certificate, copy of which is Ex. Aw 2/1. He deposed that both the petitioner and his wife are suffering from Ischaemia heart disease. He has also stated that he had advised them not to climb the stairs. Nothing came up from his cross-examination to show that his testimony with regard to the ailments of the petitioner and his wife is doubtful. Aw 3 Dr. R.S. Huazaria, another doctor who had treated the petitioner and his wife, proved the certificates Exs. AW3/1 & Aw 3/2. So, as a matter of fact, there was no evidence led by the respondent to controvert the evidence of these two doctors which unmistakably proved that both the petitioner and his wife are heart patients and have been advised not to put strain on their hearts by climbing the stairs. Even the Controller was satisfied with this evidence and he gave his finding that the petitioner and his wife are suffering from heart disease but still he proceeded to negative the ground of bonafide requirement on conjectural reasoning that as landlord bad failed to accept the offer of the tenant to exchange the first floor with the ground floor, the landlord has no bonafide need to occupy the ground floor.

(6) Counsel for the petitioner has vehemently argued that the petitioner has good reason to decline such an offer because the petitioner's family members now comprise of himself, his wife, two married sons, their wives and four grand-children and obviously after the petitioner gets the possession of the ground floor, the ground floor accommodation which comprises of only two bed rooms would not be reasonably suitable for the needs of all these family members and the landlord would have not liked to split up his family between the ground floor and the second floor and in this manner the second floor accommodation was also not suitable for the needs of the petitioner and his family members. He has pointed out that only the first floor and the ground floor would be suitable for the needs of the family of the petitioner. I find much force in these contentions. After all the landlord has to look to his own comforts. The landlord is not supposed to provide any alternate accommodation to the tenant. The landlord can very well plan as to how he and his family members could lead more comfortable life in his own house. So keeping in view all these facts, the landlord's decision not to accept offer of the respondent to exchange the premises cannot be treated malafide. The second floor premises also cannot be considered reasonably suitable to the needs of the family of the petitioner. During the pendency of the case, the married son, who was employed in Army, has been admittedly posted in Delhi in 1985. The second floor was let out somewhere in 1984.

(7) Counsel for the respondent has cited Avinash Chander v. Sohin Devi, 1982 Rajdhani Law Reporter 604, where the landlord, who was aged about 80 years, needed the ground floor for her own occupation and she offered to exchange the first floor with the ground floor, but that offer was not accepted by the tenant. It was held that giving of the said offer fortifies the bonafide need of the landlady for the ground floor. Counsel for the respondent has argued that conversely if the tenant gives and offer for exchanging the ground floor with the first floor and the landlord declines such a bonafide offer, it should lead to an inference that the landlord has no bonafide need of shifting to the ground floor. I do not agree that any such converse legal proposition can be inferred from the cited case. Each case depends on its own peculiar facts. As already discussed above, the landlord in the present case was right in declining the offer of the tenant to exchange the ground floor with the first floor when the landlord has to look to the needs of his family members who are living with him.

(8) In view of the above discussion, I hold that the landlord has been able to make out a good case for bonafide requirement for residence in respect of the ground floor premises and the landlord is not in possession of any reasonably sufficient alternative residential accommodation.

(9) Counsel for the respondent referred to certain mezzanine room available in between the ground floor and first floor and between first floor and second floor. But those mezzanine rooms cannot be termed suitable fo the needs of the landlord and the landlord's wife who are medically advise to live on the ground floor. Even otherwise the statement of the landlord that the height of the mezzanine room is only 5' -6" remained unchallenged 'So, those mezzanine rooms cannot be deemed to be good living rooms even for the needs of the family members of the landlord. The order of the Controller declining the ground of bonafide requirement is perverse and thus, is liable to be reversed.

(10) I allow this civil revision and set aside the impugned order and I allow the eviction petition and pass an eviction order against the respondent and grant six months time to the respondent for vacating the premises. The (parties are left to bear their own costs throughout.