Federal Motors Pvt. Ltd. vs D.N. Dhir
1990 Latest Caselaw 177 Del

JUDGMENT

Mahinder Narain, J.

(1) By this petition, I have to see whether the order which has been passed by Mr. V.K. Shall, Additional Rent Controller, is in accordance with the law.

(2) I have beard the counsel for both the parties at length.

(3) The premises involved in this case bears municipal No. C-68, New Delhi South Extension Part-11, New Delhi. The ground floor comprising of drawing-cum-during room three bed rooms with attached bathrooms, store, kitchen and verandah is in occupation of the tenant/petitioner M/s Federalolors vt.Ltd, and the first floor comprising of the same accommodation the ground floor, is in occupation the landlord DN. Dhir. it is stated that the landlord D.N Dbir is a patient of hypertension, missing heart beat, palpitation, ischeamia. He was 68 years old at the time of filing petition before the court below, and is now 73 years of age. His wife is stated to be suffering from cataract. His elder son Ravinder Dhir, is stated to be a heart patient, and has been advised to undergo by-pass surgery, and the daughter of Ravinder Dhir, Anjum Dhir had a ventricular Sepals defect in her heart, and has already undergone surgery The landlord D.N. Dhir, has also got another son, namely, S.N. Dhir, who is living with him on the first floor along with his wife and a two years' old child.

(4) MR.M.L.VARMA, who appears for the tenant, in view of the evidence led in the case, and the finding of the trial court, docs not dispute that the landlord suffers from the ailment relating to heart ; that his wife suffers from cataract ; that his elder son Ravinder Dbir has proved that he has been advised by-pass surgery ; that the daughter of Ravinder Dhir has already undergone ventricular surgery; that the son of the landlord, namely, S.N. Dbir, along with his wife and child lives with the landlord. He says that owing to the various ailments, there is need to live on the ground floor as far as the landlord is concerned, and to that extent the need to be on the ground floor, stands established, and is sot disputed.

(5) What Mr. Varma disputes, is whether the need is bona fide. He says that a& far as Ravinder Dhir is concerned, his requirement is no more relevant, even in terms of the order which is impugned by Mr. M.L. Varma. The Additional Rent Controller having found that upon transfer of Ravinder Dbir to Bombay, his need has ceased to exist, In his view of the matter, Mr. Varma says that the accommodation that shall be available to the landlord on the ground floor, will be more than sufficient for his needs inasmuch as one bed room can be utilised by the landlord and his wife ; another bed room by S.N. Dhir, his wife and daughter, and the third bed room can be utilised by the daughter of Ravinder Dhir who is stated to be studying in Modern School. School report proving the fact that the daughter of Ravinder Dhir is studying in Modern School, has been produced in Court. I accept this report as proof that Anjum Dhir is studying in Modern School, New Delhi, and is living with her grand-parents. Mr. Varma docs not accept the need for staying at the premises on the ground floor of Ravinder Dhir or bids wife. Ravinder Dhir's wife, according to Mr. Varma, is living with her husband at Bombay, where being sick as he is made out to be, his wife would need to stay with him.

(6) What Mr. Varma says about Mr. Ravinder Dhir, could well be true, but it is equally true that mother would like to spend time with the daughter when she is school going In any case, one room ought to be sufficient for the wife of Ravinder Dhir and his daughter Anjum Dhir.

(7) In this view of the matter, the three bed rooms acsommodation, Mr. Varma says, which is available on the ground floor, should be more than enough, and the instant case is a fit one turn directing the landlord and that tenant should exchange the tenancy premises, and if there is a refusal to exchange the premises, than in view of what is stated by this Court in 24(1983) Delhi Law Times 23 (ID. Rajput v. Ramji Dass) by Leila Seth. J., and in 26 (1984) Delhi Law Times 438 (S. K. Dey v. D.C. Gagerna) by J.D. Jain, J., refusal to exchange would be taken as proof of the fact that the requirement of the landlord is not bona fide.

(8) In reply to the arguments of Mr. M. L. Varma, Mr. D. K. Kapur appearing for the landlord/respondent, has brought to my attention the judgment cited as 36 (1988) Delhi Law Times 432 (H. S. Treohan v. Hindustan Kokoku Wire Ltd.) delivered by P.K Bahri, J, and the judgment of Yogeshwar Dayal. J. in S.A.O. No. 251 of 1974, both of which are to the effect that there is no law which requires a landlord to exchange the premises with his tenant, and upon failure to so exchange, it should betaken that the requirement of the landlord is not bona fide.

(9) Mr. D.K. Kapur supplements his contentions based upon the aforesaid judgments, by referring to Sections 19 and 20 of the Delhi Rent Control Act, and says that- if the legislature had intended that the unwillingness to exchange a premises be construed as lack of bona fide requirement on the part of the landlord, then it should have been so stated as some provisions of the Delhi Rent Control Act. That the legislature was conscious that there may be a need in some circumstances to put the tenant in possession of the property after his eviction was ordered is established by the aforesaid provisions of the Act, which previsions are the only ones that enable re-taking of possession, which had earlier been ordered to be given to the landlord.

(10) The provisions of Section 20 of the Delhi Rent Control Act direct that if the premises have been given back to the landlord for the purpose of re-construction of the premises then in that case, the Rent Controller can ask the tenant whether he elects to be put back in possession after the premises have been reconstructed or re-built, and if he does make that election then the tenant has to be put back into possession after the premises have been reconstructed or re-built.

(11) If it had been intended by the legislature that wherever exchange was possible, exchange should be mandatory, the legislature could have well provided for it. The fact that it did not so provide, would go to show that legally, such an inference cannot be drawn.

(12) Besides this, Mr. D.K.Kapur on behalf of the landlord has referred to the judgments of this Court (N.N.Goswamy.J.), in 1987(1) R.C.J. 383 (Radhey Lal v. Kamla Devi & others), wherein Goswamy, J., has accepted the position that there can be a need of the landlord based upon the visits of his sons or daughters who are married, but do not normally live with him.

(13) I accept what has been contended by Mr.DK.Kapur, and I am of the view that the requirement of the landlord for the ground floor premises exists, and he needs to shift to the ground floor, as has been accepted by the Mr. M.L Varma I also held, while agreeing with the views of Yogeshwar Dayal, J, and of P.K. Bahri, J. that it is not necessary that there should be an exchange of the premises, (if such an exchange is possible between the landlord and the tenant when the landlord needs to shift to the ground floor. I am also in agreement with the view of Goswamy, J. in the aforesaid judgments that the landlord could have bona fide need for the premises for the married sons and daughters, who do not normally live with him. but come to visit occasionally, such sons and daughters would be needing a separate accommodation during their visits.

(14) Mr. M.L. Varma's argument that a separate accommodation for those persons can be provided for in the barsati floor which admittedly exists on the second floor, I do not accept, as, there may be occasions when it is not possible to utilise the barsati floor for the visitors, who, are more in number as there may be visits by the married children of the landlord, as also some guests, and such a requirement of the landlord, to provide for visiting married sons and daughters and visiting guests, cannot be ignored, and has to be treated as the requirement of the landlord.

(15) I do not accept the arguments of the petitioner that reason for filing the petition for eviction was because the tenant had refused to increase the rent in March, 1983, and that the premises were let out for residential as well as for commercial purposes. The New Delhi South Extension Part-1 area is primarily a residential area, and merely because some Munim or clerk would come to keep some records of accounts of some business, would not make the premises of the tenant as an office premises.

(16) In this view of the mailers, the impugned order does not require any interference.

(17) In view of what is stated above, the revision petition is dismissed.