M.P. Rawla vs S.D. Tyagi
1991 Latest Caselaw 333 Del

JUDGMENT

P.N. Nag, J.

(1) This revision petition has been directed under Section 25B(8) of the Delhi Rent Control Act against the order dated 20th April, 1987 passed by Shri AX. Garg, Additional Rent Controller, Delhi whereby the petition for eviction of the tenant-respondent on bonafide grounds under Section 14(l)(e) of the Delhi Rent Control Act has been dismissed.

(2) The brief facts set out in the petition for ejectment are that the petitioner owns a house No. G-14, Lajpat Nagar, New Delhi. In 1976 when he was transferred to Delhi, while he was working in Northern Railway as a Senior Signal and Telecommunication Engineer, the petitioner-landlord filed a petition for ejectment of the another tenant, viz.,Shri R.C.Sehgal, of the first floor of the aforesaid house and he got possession thereof on 1st May, 1977 and the petitioner was living on the first floor till then. However, he chose not to file eviction petition against the present respondent-tenant at that time. After getting possession of the first floor, the petitioner filed the present petition for ejectment of the respondent-tenant from tha around floor of the house on 21st July, 1978 on the ground that the accommodation of the first floor, which he was occupying, was not sufficient and, therefore, required ground floor as well bonafide. The petitioner-landlord alleged that his family consisted of himself, his wife, one son and two daughters and on the first floor, which was in his occupation, consisted of only two bed-rooms, one drawing-cum-dining room and two mezzanines. According to the petitioner, two bed rooms were not sufficient for the family of the petitioner as one room was required by the petitioner and his wife, the other bed room was insufficient for the three children, particularly it was not desirable to closet the son with his two sisters in one room at the adolescent age. Moreover, the children were receiving education had no study room. Furthermore, his parents-in-law, who were aged persons and were not enjoying good health, particularly the mother-in-law, wanted to live in the company of their daughter, i.e., petitioner's wife as they had only one son who was serving in the army and there was none else to look after them. The petitioner being chronic asthma patient had been advised not to climb stairs as it was injurious to health. He also wanted to purchase a car and needed the garage on the ground floor for parking the car.

(3) The respondent denied that the petitioner is in need of accommodation for his residence. According to him, the portion described as mezzanines in the petitioner were in fact two rooms of quite big size measuring 18' x 9'. Having regard to the status, size of the family, according to the respondent, the present accommodation in possession of the petitioner was sufficient. The parents-in-law of the petitioner were in no way dependent upon the petitioner and the demand of a garage for parking car was also not genuine. In fact the petitioner had been asking him to enhance the rent and as such the petition for ejectment had been filed malafide.

(4) After the trial of the case, the learned trial Court dismissed the petition. Having regard to the fact that on his transfer to Delhi, the petitioner has chosen not to file a petition for ejectment against the respondent-tenant of the ground floor as presumably he did not require the premises in dispute for his residence and also spurned the offer made by the respondent while he was in the witness box to surrender the ground floor portion in exchange with the first floor without any deduction of rent and all other circumstances of the case, the learned trial Court dismissed the petition.

(5) Being aggrieved against this order of the learned Additional Rent Controller, the petitioner-landlord has filed this revision petition.

(6) In this revision petition notice to show cause was ordered to be issued on 6th November, 1987. After the respondent was duly served, the petitioner filed a petition, Cmp 1131 of 1988 for taking subsequent developments/ events for determining the point in controversy between the parties into account wherein it was stated that the respondent had been allotted alternative accommodation in Vasant Kunj (flat No. 8415, Category Iii, Sector C, Pocket 8 under Self Financing Scheme) consisting of three bed-room with drawing room, dining room cum-lounge, two toilets and kitchen, with a big courtyard. Vide order dated 19th January, 1989 this Court allowed this application and consequently it was left open to the petitioner to argue the subsequent events at the time of arguments. On 17th July, 1989, the respondent, who was present in Court, made a statement that he had received the letter of delivery of possession from the D.D.A. and in pursuance thereof he had taken possession of the aforesaid flat on 3rd June, 1989. On an enquiry from the respondent it was found that he had rented out his premises as according to him, he had purchased that flat after borrowing loan which he wanted to re-pay and that is why he had rented out that premises.

(7) Mr. Khanna, learned counsel for the petitioner has contended vehemently that it is not necessary to go into other questions as the respondent is liable to be ejected on the sole ground that he has acquired vacant possession of the residence and delivery of the aforesaid flat had been admitted by the respondent. I regret I am unable to accept this contention. The position is not so simple as has been stated by the learned counsel for the petitioner. In this context it may be relevant to point at this stage that the original provision of Section 14(l)(h) stands amended by the Act 57 of 1988 and the word 'built' has been omitted and new clause (hh) has been inserted in the Act. The relevant provisions are reproduced below :

"(H) that the tenant has, whether before or after the commencement of this Act, acquired vacant possession of, or been allotted, a residence;"

"(HH) that the tenant has, after the commencement of the Delhi Rent Control (Amendment) Act, 1988, built a residence and ten years have elapsed thereafter ;"

Whether or not the above provisions are attracted in the present case depends upon the elaborate enquiry into the matter. Particularly, the matter will have to be examined in the context of clause (hh) aforementioned whether or not the respondent-tenant by having purchased the flat has 'built' a residence and ten years have elapsed thereafter.

(8) In Rabindra Kumar Ghosel v. The State of West Bengal the Supreme Court has held that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.

(9) In the present case, therefore, as stated above, subsequent events cannot be taken into consideration for determining the point in controversy between the parties as elaborate enquiry is required and the rules of fairness would, therefore, demand that it would not be just to permit the petitioner to take the subsequent events into consideration in the present proceedings.

(10) Mr. Khanna, learned counsel for the petitioner, raised almost the same grounds of attack as the petitioner has raised in the trial Court. However the main thrust of his argument was that .the so-called two rooms described as mezzanine above the garage cannot in fact be called the rooms as these rooms are not parts of the house and no bath-rooms are attached to these rooms Further there is no access to these rooms from the main house. As such these rooms, cannot be considered as suitable accommodation for the petitioner to live in. The landlord has right to live in comfort according to his own choice.

(11) The learned trial Court has rightly noticed that the petitioner has not denied that the height of one room which is above the garage is more than 8' and that of the other room is 9'. Having taken into consideration the heights and size of these two rooms and other circumstances the trial Court has come to the conclusion that these two rooms described as mezzanines are not unfit for residence and they are habitable. Whether or not the rooms can be considered as living rooms, significance should not be given to the name given to it but what is really important is the nature of construction and the nature of construction of these two rooms has been considered 'not unfit' for residence by the trial Court.

(12) The learned trial Court has further found that although the petitioner's family at that moment consisted only of three members, as hiss on admittedly was doing an Engineering course in Mangalore, Karnataka, his daughter, Shalini, was doing Management course at Ahmedabad. Only, the other daughter. Samita, was living with him at Delhi and therefore for three members two rooms were quite adequate. Even assuming that the son and the daughter were regular members of the family and provision of accommodation must be made for them, the learned trial Court did not think that the petitioner was really short of accommodation. According to the learned Court, the petitioner had not only two bed rooms and one drawing-cum-dining but also two rooms above the garage and both the rooms were in the occupation of the petitioner and these rooms had more than the height of 8' and one of the rooms had a height of 9, and, therefore, it would not be appropriate to treat them as mezzanines or unfit for the residence as these rooms were of a bigger size and were habitable. The story of the desire of the parents in law to live with them was only to strengthen the petitioner's case as the parents-in-law could not be regarded as members of the family of the petitioner and secondly they had a son and the son had purchased a house in Kailash Colony and having regard to the human conduct, they would prefer to live with their son rather with the petitioner's wife, their daughter. Insofar as the requirement of the petitioner for garage is concerned, the respondent, who entered into the witness box, had clearly stated that he was prepared to surrender possession of the garage without deduction in rent provided he was allowed to park his car under the Canopy, and this proposal was not acceptable to the petitioner. The petitioner is no doubt an Asthma patient but he is suffering from Asthma since 1975 and, therefore, does not warrant the conclusion that the premises are required bonafide. These findings have been arrived at by the trial Court obviously after appreciation of evidence and it is not permissible for this Court to disturb these findings of fact, more so in revision under Section 25B(8) of the Delhi Rent Control Act.

(13) What accommodation is required "bonafide" is not to be understood as indefinitely enlarging the choice of the landlord and leaving it to his own subjective discretion. In Smt. Kamla Soni v. Rup Lal Mehra (1969 RCR1017) the Supreme Court has held that a mere assertion that the landlord requires premises occupied by a tenant for his personal occupation is not decisive. It is for the Court to determine the truth of the claim, and also to determine whether the claim is bona fide. In determining whether the claim is bona fide the Court is entitled and indeed bound to consider whether it is reasonable. A claim founded on abnormal predilections of the landlord may not be regarded us bona fide.

(14) In view of this settled position in law, I am of the opinion that the finding of the trial Court in this regard is neither perverse nor unreasonable and cannot be disturbed.

(15) It is well settled that under Section 25B(8) the High Court exercises only revisional and not appealable jurisdiction. Under this sub-Section the High Court has to examine the records in order to satisfy itself that the decision of the Controller is "according to law". It is well settled that though this expression confers a revisional jurisdiction wider than that under Section 115 of the Code of Civil Procedure, 1908 still it has its limitations. The scope of this expression has been examined in S.Kumar v. 0m Parkash Sharma (1980-1 Rcj 36). Some of the instances where the High Court may interfere under this sub-Section are where the order of the Rent Controller is without jurisdiction or contrary to law or to the express provisions of the Act ; where he has arrived at findings which are wholly perverse and contrary to evidence or based on no evidence; or where some procedural irregularity has been committed resulting in miscarriage of justice. But the High Court will not sit in judgment over mere findings of fact arrived at by the Controller on the evidence before him or interfere merely because possibly on the same fact, it is likely that another Court may come to a different conclusion.

(16) In view of the settled law, as discussed above, the findings of the trial Court are neither perverse, unreasonable nor have resulted into miscarriage of justice. Merely that the two different conclusions are possible, this itself may not be fit case for interference in revision. Therefore, no interference is called for in the revision petition.

(17) Learned counsel for the petitioner, however, again submitted that he had filed another application, Cm 3334/87 wherein he had tried to demonstrate that after the judgment was announced by the trial Court, again, subsequent events had taken place inasmuch as his son and daughter who were receiving education out of Delhi, had completed their studies and were now living with the petitioner in Delhi. In this connection it may be pointed out that the learned trial Court has held, after assuming that they were entitled to live with the petitioner in Delhi, that the accommodation with the petitioner was sufficient. Therefore there is no question of taking this subsequent development into consideration as it has already been taken into consideration by the learned trial Court. However, the respondent has filed another application (CM 1377/90) wherein it has been stated that the elder daughter of the petitioner, Samita, has got married and she is living at Agra. This fact has no doubt been denied by the petitioner and he has stated that no doubt she has been married but her husband is posted at Delhi and both daughter and son-in-law are living with him. Be that as it may, the fact lies that she is married and she is not required to live with the petitioner. After the marriage of the elder daughter the petitioner has now only four members, viz., the petitioner, his wife, one son and one daughter, who are required to live in the premises with the petitioner. However, the accommodation has been found sufficient even for five members of the family by the Rent Controller. Therefore, there is no justification in interfering with the findings given by the trial Court. The position of accommodation of the petitioner in fact after the marriage of the elder daughter has become easier.

(18) The revision petition, therefore, fails and is dismissed in liming. In the circumstances I make no order as to costs.