Madan Lal Lamba vs Tarlok Singh Sehgal
1991 Latest Caselaw 36 Del

JUDGMENT

R.L. Gupta, J.

(1) This revision petition has been filed under Section 25B(8) of the Delhi Rent Control Act, 1958 (Act for short) by Madan Lal Lamba, tenant, for setting aside a judgment dated 18.4.1990 passed by the learned Rent Controller, Delhi, by which he granted an eviction order against him in favor of the respondent landlord under Section 14-C(2) of the Act in respect of suit premises, that is, the ground floor of property No. B-1/244, Janakpuri, New Delhi. The learned Rent Controller also directed that the order shall not be executable till the expiry of two months from the date of the order.

(2) The facts are that the landlord had let out the suit premises to the petitioner herein in March, 1981 for residential purposes. The respondent was an employee of the Central Government in Ministry of defense working as office Superintendent in the office of Air Force Central Accounts Subroto Park, Dhaula Kuan, New Delhi and was to retire with effect from 31.3.1990 and that he required the suit premises for his own residence. The petition was filed on 3rd April, 1989, that is, within one year of retirement.

(3) On putting in appearance the petitioner filed an application for leave to defend the suit duly supported by his affidavit. He stated in the affidavit that the respondent had constructed a Hying apartment at the first floor of the suit premises comprising of a big drawing-cum-dining room, bedroom, lobby, balcony, kitchen, bath room etc. and had also completed a Barsati somewhere in 1984. This he had done after selling his house in Bagh Kare Khan, Delhi. He shifted to the newly constructed premises Along with his wife, married son, daughter-in-law and one grand son and that accommodation was sufficient for him and the members of his family. The object of the respondent in getting the suit premises vacated was simply to relet it at a higher rent. He also stated that the petitioner had also filed another eviction petition against him under Sec. 14(l)(e) of the Act. Another plea taken up. by him was that since the respondent was not residing in the Govt. allotted accommodation, the petition under Section 14-C(2) of the Act was not maintainable.

(4) The allegations were controverter by the respondent-landlord and the averments made in the eviction petition were re-affirmed. The learned Rent Controller was of the view that the affidavit of the petitioner did not raise any friable issue and, therefore, the application for leave to defend was rejected.

(5) I have beard arguments advance by learned counsel for the parties and have given my careful consideration to the point involved in this revision petition. This petition was actually at the stage of admission after issue of show cause notice. But since complete arguments have been heard in this petition, it can be disposed off finally.

(6) Learned counsel for the petitioner/tenant submitted that the landlord was not entitled to seek eviction of the petitioner in this case under Section 14-C(2) of the Act because he was in occupation of , first floor of the house which is an independent dwelling unit. According to the learned counsel, the summary procedure for ejectment under Section 14-C(2) of the Act is available to a landlord who is in possession of a Government allotted accommodation which he is supposed to vacate with his retirement. On the other hand learned counsel for the respondent/landlord contended that it is only Section 14-C(2) of the Act which is applicable to the facts of the present case. To support their respective contentions some authorities have been cited at the bar which may be noticed. Learned counsel for the petitioner drew my attention to Narain Khamman, Appellant v. Parduman Jain, Respondent, wherein the landlord had filed a petition for ejectment of the tenant under Section 14-A of the Act.

(7) The main point which the Supreme Court dealt with in this case was as to whether a person can file an application under Section 14-A(1) on the ground that a dwelling house owned by him either in his own name or in the name of his wife or dependent child and available for his residence is not reasonably suitable for his residential accommodation. The Supreme Court while answering this question summarised the conclusions as under :- "(1)It is not necessary that a person in occupation of residential premises allotted to him by the Central Government or a Local Authority who is required by or in pursuance of a general or special order made by that Government or Authority to vacate such accommodation or, in default, to incur certain obligations, such as payment of market rent, on the ground that he owns in the Union Territory of Delhi a residential accommodation either in his own name or in the name of his wife or dependent child should be in occupation of the accommodation allotted to him on the date when he files an eviction application under Sec. 14-A(1) of the Delhi Rent Control Act, 1958, to recover possession of the residential premises which he so owns and which has been let by him. (2) If such person has, however, other premises which he owns either in his own name or in the name of his wife or dependent which child are available to him for his residential accommodation or into which he was already moved, he cannot maintain an application under Sec. 14-A(1) of the Act. (3) Even if the other premises owned by him either in his own name or in the name of his wife or dependent child are not reasonably suitable for his accommodation, he cannot maintain an application under Sec. 14-A(1) but must file an application on the ground specified in Clause (e) of the proviso to sub-section (1) of Section 14 of the Act."

(8) In the present case there is no dispute that the summary procedure for eviction prescribed under Section 14-A; 14-B; 14-C and 14-D is in para material. Therefore, if there is a plausible defense made out by the tenant in an eviction petition filed under any of the aforesaid provisions, leave to defend has to be granted to him, or if the petition is not maintainable, it has to be dismissed.

(9) Let us now try to analyze the implications of the Supreme Court ruling with reference to the case before us. It is admitted in this case that the respondent/landlord had shifted to the first floor of this very premises which he had duly constructed in 1984 after selling his other house in Bagh Kare Khan Delhi. He has been living there since the time of construction of that dwelling unit on the first floor. It is also not disputed before me that both the dwelling units i.e. the ground floor and the first floor have separate entrances and are being enjoyed separately by both the parties without the interference of each other. Therefore, it is prima facie clear that the landlord has an independent premises or a dwelling unit, or call it by whatever name we like, which were available to him for his residential accommodation and into which he had already moved much prior to the date of his retirement. Let us presume for a moment that the residential portion in possession of the landlord is not reasonably suitable or sufficient for his accommodation and his family members. In these circumstances, is it possible to say that he can maintain a summary eviction petition enjoined by Section 14-C(2) of the Act ? I am of the view that this type of situation is squarely covered by the aforesaid Supreme Court authority because it is clearly laid down in the said authority that even if the other premises either occupied by the landlord or available to him for occupation are not reasonably suitable for his accommodation, he cannot maintain an application under Section 14-A(1) but must file an application on the ground specified in clause (e) of the proviso to sub-section (1) of Section 14 of the Act.

(10) A similar case arose before this Court Bansal and another v. Dr. Subhash C. Kashyap. In that case the ground floor and basement of the premises in question were available to the landlord for accommodation after retirement. The first floor was let out by him to the tenant. The case of the landlord was that he was accustomed to live in a big house and thus the ground floor was not enough and he will not be in a position to shift to the ground floor till the first floor is vacated.

(11) Basing its decision on the aforesaid Supreme Court ruling, this Court found great force in the contention of counsel for the tenant. It observed that undoubtedly it could not be said, that the issue raised by the petitioner was such which should be disposed off without trial. In that case besides the availability of accommodation in a part of the house, another issue raised on behalf of the tenant was that the landlord was not a Central Government employee. But this Court found the issue of availability of accommodation in a part of the house to be more important so that it called for an opportunity to be given to the tenant to prove that the accommodation available to the landlord for his residence disentitled him from getting his eviction by taking recourse to the summary procedure of Section 14-C(1) of the Act,

(12) Mr. Chandiok, learned counsel for the landlord drew my attention to two Division Bench authorities of this Court reported in B.M. Chanana v. Union of India & others, 1989(4) Delhi Lawyer 246 and Dr. P.P. Kapur v. Union of India & others, 1990 Rajdhani Law Reporter, . He specially drew my attention to various passages from P.P. Kapur's case and contended that in Kapur's case (supra) he had contended that if a widow was living in a part of the tenanted accommodation. Section 14-D would be inapplicable. But his arguments was not accepted by observing in para 21 : "WE are unable to agree with bald proposition. Section 14-D clearly states that if the tenanted premises are required by the widow for her own use. Section 14-D would apply. It is immaterial for deciding this issue, whether the widow is on the street or is living in a rented accommodation or is living in a part of the tenanted premises. It is possible that when the widow is living in a part of the tenanted premises, the Rent Controller may come to the conclusion that she does not require the tenanted premises for her own use: What has to be seen is the need of the widow as opposed to desire. If the need exists then there would be no justification in not-suiting her merely because she is living in part of the tenanted premises."

(13) In view of the above observations, the learned counsel contended that the case in hand is parallel to the facts of that case and, therefore, in the light of the aforesaid observations, it should be held that even though the landlord in our case also is in possession of a part of the premises, he still can take recourse to the summary procedure of eviction provided under Section 14-C(2) of the Act. I am afraid, it is not possible to accept the contention raised by Mr.Chandiok. The reason is that the Division Bench in both the aforesaid cases was called upon to answer only the validity of either Sections 14-B; 14-C; 14-D or Section 14-A. In the very opening para of the judgment it is stated: "AFTER the promulgation of Delhi Rent Control (Amendment) Act 1908 whereby some provisions were incorporated into the Delhi Rent Control Act, this is the second round of litigation which has come up before this Bench. In an earlier case of Shri B.N. Chanana v. Union of India & Ors., 1989 (4) Delhi Lawyer 246, we had decided the validity of Sections 14-B; 14-C and 14-D as well as interpreted Section 14-C of the Act. The present bunch of writ petitions which has come up for hearing before us again pertained to the same provisions. 2. The present writ petition deals with the vires and the interpretation of Section 14-D of the Act".

(14) Therefore, it will be seen that the dominant question answered by the Division Bench was t he constitutional validity of Section 14-A of the Act in Kapur's case. Similarly in Chanana's case in para I itself it is stated : "1.Important question which arises in this writ petition is with regard to the interpretation and the validity of some of the provisions which have been newly added to Delhi Rent Control Act, 1958 as a result of the amendment by Act 57 of 1988."

(15) La Chanana's case actually the landlord had conceded the application for leave to contest which was accordingly granted. In Kapur's case which no doubt involved a bunch of writ petitions, only the facts of Kapur's writ petition were given by way of illustration. The landlady in this case who was a widow was a resident of Jaipur while she sought eviction of the tenant under Section 14-D read with Section 25-B of the Act in respect of a house in Delhi because she had no living accommodation in Delhi. Prior to that her petition under clause (e) of the proviso to Sec. 14(1) of the Act against the tenant had been dismissed. All the above facts have been extracted from these cases to highlight that the point involved in those cases was neither same nor similar to the one before us.

(16) The Supreme Court held in The Mumbai Kamgar Sabha, Bombay, Appellant v. M/s Abdulbhai Faizullabhai and others. Respondents, : "IT is trite, going by anglophonic principles, that a ruling of a superior Court is binding law. It is not of a scriptural sanctity but is of ratio wise luminosity within the edifice of facts where the judicial lamp plays the legal flame. Beyond those walls and de hors the milieu we cannot impart eternal vernal value to the decision, exalting the doctrine of precedents into a prison house of bigotry, regardless of varying circumstances and myriad developments. Realism .dictates that a judgment has to be read, subject to the facts directly presented for consideration and not affecting those matters which may lurk in the record."

(17) Similarly in para 7 of the judgment reported as The Regional Manager and another. Appellants v. Pawan Kumar Dubey, Respondent, , the Supreme Court held : "IT is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio deci-dendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts."

(18) A perusal of the principles laid down by the Supreme Court, therefore, shows that the interpretation of the same principle may be different when the Court is confronted with different set of facts in different cases. The facts of the aforesaid Division Bench cases of this Court are quite different from the facts of the present case. No doubt, the argument advanced by Mr. Chandiok in Kapur's case was the same as now before roe. Yet it simply appears to be a deluge because in reality the questions posed before the Division Bench were only regarding the interpretation of the summary eviction provisions of the Act against the background of different facts. Moreover, while making observations in Kapur's case (supra) about the widow being in possession of a part of the tenanted premises, it is not stated as to what will be result if the widow' is in possession of the part of the tenanted premises which can be considered to be a separate or independent dwelling unit, as is the case beforeme. Furthermore Narain Khamman's case decided by the Supreme Court was not brought to the notice of the Division Bench. As already stated the facts of Khamman's case are absolutely similar to the facts of the present case'.

(19) In conclusion, therefore, I am of the view that the Rent Controller in the petition under Section 14-C of the Act was not entitled to take into consideration the size of the family of the landlord and sufficiency or insufficiency of accommodation in his possession, because those considerations can prevail only in an eviction petition under clause (e) of the proviso to Section 14(1) of the Act when the landlord pleads that he bona fide requires the premises for his own residence or his dependant family members etc. as per that clause. Therefore, as laid down in Narain Khamman's case (supra) the landlord was not entitled to file a petition under Section 14-C of the Act in this case. The eviction order is hereby set aside and the petition filed by the respondent-landlord is dismissed. In the circumstances the parties will bear their own costs throughout. Let the landlord proceed with his petition under Section 14(1)(e) of the Act which is already pending.