K.D. Gupta vs H.L. Malhotra
1992 Latest Caselaw 307 Del

JUDGMENT

P.N. Nag, J.

(1) By this revision petition filed under Section 25B of the Delhi Rent Control Act (hereinafter called the "Act"), the petitioner-tenant has challenged the order dated-17th November, 1990 passed by Shri L.D. Malik, Additional Rent Controller, Delhi whereby he has dismissed the application of the petitioner-tenant for leave to contest the suit for eviction and consequently the order of eviction has been passed under Section 14(1)(e) of the Delhi Rent Control Act.

(2) The facts relevant to be stated for determination of controversy are that on 26.4.1988 the landlord (respondent-herein) filed a petition for eviction against the petitioner-tenant on the ground that the premises in dispute, i.e. First Floor of House No. D- 21. Hauz Khas, New Delhi, consisting of two bed rooms, drawing-cum-dining, barsati, verandah, kitchen, two W.C. and bath attached, were given on rent to the petitioner tenant about 12 or 13 years back on rent of Rs. 1.000.00 p.m., exclusive of water and electricity charges, for residential purposes only. The landlord/respondent is in occupation of two bed rooms besides dining and drawing room on the ground floor of D-21, Hauz Khas, New Delhi.

(3) In para 18 (a)(i) to (vi) of the petition the landlord has stated that he is 83 years of age and his wife is aged 75 years (at the time of institution of the suit). Both the landlord and his wife are not keeping good health as the landlord is a chronic patient of angina and heart trouble and his wife is suffering from palpitation of heart and arthritis. The landlord has no male issue and has only one married daughter, who wants to reside with her husband and two children-son aged 7 years and daughter 2 years- with the landlord as she also has no house of her father, viz., the landlord for residence, as she wants to look after her old ailing parents. As a matter of fact, the daughter of the landlord with her child moved out of Delhi along with her husband and the respondent-landlord was not prepared to let out these premises on rent but on an assurance and promise on behalf of the petitioner-tenant that he would vacate the premises as and when needed, the premises were let out to the petitioner-tenant on rent of Rs. 1,000.00 . The respondent-landlord has only two bed rooms, dining and drawing room on ground floor of D/21, Hauz Khas and out of it one bed room is being used as Pooja Room by the wife of the respondent-landlord, who is an old pious lady. There is a domestic servant who sleeps in the drawing room and, therefore, there is an acute paucity of accommodation. According to the landlord, at least two more bed rooms are needed for the married daughter of the landlord, one room is required for the domestic servant and at least one room is badly needed for the guest who visits the landlord very frequently since all are residing in Delhi. Therefore, the accommodation now available with the landlord is short by four rooms, which are bonafide required by him. Since the petitioner-tenant has filed to vacate the premises in dispute, the eviction petition on bonafide necessity has been filed by the respondent-londlord.

(4) Notice of this eviction petition was served on the petitioner-tenant on 11.7..1989 by registered A.D. post and also on 13.7.1989 through court process. In response to the notice, the petitioner-tenant filed an application under Section 25B of the Delhi Rent Control Act and other provisions of law seeking leave of the court to contest the eviction suit.

(5) In the application for leave to contest the eviction petition, it has been stated by the petitioner-tenant that the respondent-landlord does not require the premises in question for his own occupation and for members of his family dependent upon him. The eviction petition filed by him is malafide and is with a view to enhance the rent As a matter of fact, the petitioner-tenant has refused to accede the request for enhancement of the rent to Rs. 2,300.00 p.m. consequent upon his appointment as Director of the Cement Corporation of India Ltd. According to him, the landlord does not require the premises bonafide for himself or for any members of his family. In reply and more particularly to averments made in para 18(a) (i) to (vi) of the petition, it has been stated that it is no ground for the eviction of the petitioner from the premises in question. The only child daughter was married in 1971 and has been residing with her husband and in-laws in KarolBagh, New Delhi and as such she is not at all dependent upon the petitioner and the premises in question is not required by the landlord either for his own residence or for the residence of any members of his family dependent on him since there is none in his family dependent on him but' for his wife. It is stated that the landlord and his wife are enjoying perfectly good health and do not suffer from any disease. Landlord does not have any full time servant.' Only part time servant comes to cleanse the house and utensis. It is further stated that the accommodation available on the ground floor of the demised premises to the landlord is not only sufficient for him and his wife but a portion thereof remains unutilized since there are only two members in the family of the landlord, viz the landlord and his wife. In this application for leave to contest the eviction petition, it has not been denied that the one room is being used as Pooja Room.

(6) The petitioner-tenant filed an application dated 7.2.1990 seeking permission of the court to bring on record the enclosed additional affidavit dated 7.2.1990 in which it was further reiterated and elaborated that the only child, i.e.. his daughter, who was married in 1971 and since then was residing with her husband and children in her in-laws house in Karol Bagh, New Delhi and she was not dependent at all for the purposes of residential accommodation upon the petitioner/landlord in any manner. Moreover, she or husband had no intent to shift to the house of the respondent-landlord. Further the landlord does not have any full time servant. Only part time servant come to clean the utensiles. It was further stated that the accommodation available on the ground floor of the demised premises of the respondent is not only sufficient for him and his wife but a portion there of remains unutilized since there are only two members in the family of the landlord. It was further stated that no separate room was being utilized for the purposes of pooja by the landlord or his wife.

(7) A reply dated 19.2.1990 to the above application dated 7.2.1990 was filed by the respondent-landlord rebutting the allegations of the petitioner-tenant and along with this reply, the landlord has filed an affidavit of Shri Vijay Kumar Malik (husband of the daughter of the landlord) and Smt. Gita Malik (wife of Shri Vijay Kumar Malik and daughter of the landlord) dated 19.2.1992 wherein it has been stated that they along with their school going children have decided to reside with the landlord in the house in question, as desired by them, to look after the aged parents.

(8) Vide order dated 26.2.1990. the Additional Rent Controller did not allow the additional affidavit filed on behalf of the petitioner-tenant to be placed on record in support of the application seeking leave to contest the eviction petition insofar as his denial that the wife of the landlord was not using one room as Pooja Room, as this amounted to withdrawal of the admission on the part of the petitioner-tenant. The other pleas taken in the additional affidavit were allowed to be brought on record. This order has become final.

(9) The Additional Rent Controller, after having perused the various affidavits did not grant leave to the petitioner-tenant to contest the suit on the ground that the affidavits of the respondent-landlord conclusively show that he is in bonafide need of the suit premises in order to make arrangement for his daughter, son in law and their children who intend to look after their old aged parents, which they are unable to do on account of paucity of accommodation and consequently he passed the order of eviction on 17.11.1990.

(10) Being aggrieved against this order dated 17.11.1990, the petitioner-tenant has filed the present revision petition.

(11) Mr. Sethi, learned counsel for the petitioner has assailed the impugned order on the ground that by refusing leave to contest the eviction petition, the approach of the learned Additional Rent Controller is wholly erroneous and at this stage he should not have accepted the affidavits of Smt. Gita Malik and Vijay Malik, daughter and son-in-law of the landlord, and of the landlord in reply to the application filed by the tenant seeking permission to file additional affidavits, whereby they have deposed that they along with their two children had decided to reside with the landlord in the house in question as desired by them to look after the aged landlord and his wife. As a matter of fact the veracity of these facts whether or not daughter and son-in-law of the landlord along with their two children intend to shift to the premises in question to look after the landlord and his wife cannot be decided at this stage of consideration of the application of the tenant seeking leave to contest the eviction petition as this question can be decided only after the parties are given an opportunity to lead evidence and after affording an opportunity to the tenant to cross-examine the persons whose affidavits the .landlord had filed. On the basis of the affidavit filed by the tenant, which alone should have been taken into consideration by the Additional Rent Controller, the friable issues do arise in the case and, therefore leave to contest should not have been refused. The trial court has erred in relying upon a judgment of this Court in T.Sivasankar and another v. A.L. Seth (1986)-Vol. 28 Supp. Rcr 147) as that case was decided after the parties were given an opportunity of leave to contest and after the full trial.

(12) In this connection reference was made to Charan Das v. Brahma Nand (1982 RLR-SC 243). In that case the Supreme Court has observed, 'What should be the approach when leave to defend is sought? There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would non-suit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought, the tenant must make out such a prima facie case raising such pleas that a friable issue would emerge and that should be sufficient to grant leave. The test that of a friable issue and not the final success in the action (see Santosh Kumar V. Bhai Mool Singh 1958 S.C.R. 1211).,the stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counter-assertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought on the ground of personal requirement an absolute need is not to be satisfied but a mere desire equally is not sufficient. It has to be something more than a mere desire. And being an enabling provision the burden is on the landlord to establish his case affirmatively. Further in para 6 the Supreme Court has observed that undoubtedly wholly frivolous defense may not entitle a person leave to defend. But equally a friable issue raised, enjoins a duty to grant leave. May be is the end the defense may fail. It is necessary to bear in mind that when leave to defend is refused the party seeking leave is denied an opportunity to test the truth of the averments of the opposite party by cross-examination and rival affidavits may not furnish reliable evidence for concluding the point one way or the other. It is not for a moment suggested that leave to defend must be granted on mere asking but it is equally improper to refuse to grant leave though tribal issues are raised and the controversy can be properly adjudicated after ascertainment of truth through cross examination of witnesses who have filed their affidavits. Burden is on the landlord to prove his requirements and his assertion is required to be tested.

(13) In another case of Precision Steel Engg. v. Premdev Niranjadev (1982 Rlr - 81) similar views have been expressed and it has been observed by the Supreme Court in para 10 that 'when a landlord approaches Controller u/s 14(1)(e), is the court to presume every averment in the petition as unchallengeable and truthful. The consequence of refusal to grant leave must stare in the face of the Controller that the landlord gets an order of eviction without batting the eyelid. This consequence itself is sufficient to liberally approach the pray for leave to contest the petition. While examining the question whether leave to defend ought or ought not to be granted the limited jurisdiction which the Controller enjoys is prescribed within the well defined limits and he cannot get into a sort of a trial by affidavits preferring one set to the other and thus concluding the trial without holding the trial itself. Short-circuiting the proceedings need not masquerade as a strict compliance with S.25B(5). The provision is cast on a mandatory form. Statutory duty is cast on the Controller to give leave as the legislature uses the expression. The Controller shall give to the tenant leave to contest if the affidavit filed by the tenant discloses such fact as would disentitle the landlord for an order for recovery of possession. The Controller has to look at the affidavit of the tenant seeking leave to contest. The Controller has to confine himself to the affidavit filed by the tenant u/s 25B(4) and the reply, if any. The Controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits other set of affidavits. That is not the jurisdiction conferred on the Controller by sub-section (5) because the Controller while examining the question whether there is a proper case for granting leave to contest the application has to confine himself to the affidavit filed by the tenant disclosing such facts as would prima facie and not on contest disentitle the landlord from obtaining an order for recovery of possession. The Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from recovering possession etc.

(14) In the present case, the tenant has denied that the daughter and son-in-law along with their children of the landlord had any intention to reside or use any portion of the tenanted premises. It has been stated by the landlord in reply that the landlord has only one daughter who was married in the year 1971 and since then she has been residing with her husband and children in her in-law's house in Karol Bagh, New Delhi and she is not dependent at all for the purposes of residential accommodation upon the landlord in any manner. Moreover, she or husband have no intent to shift to the house of the landlord and there is no bonafide requirement of the landlord as stated by him.

(15) Although the landlord has filed affidavits of his daughter and his son-in-law in reply to the application filed on behalf of the tenant seeking permission to file additional affidavits, to the effect that they intend to reside with the landlord in order to look after him and his wife in the premises in dispute. The question that arises for consideration at this stage is whether those affidavits can be taken into consideration in order to determine the question whether or not the petitioner's daughter and son-in-law with two children really intend to shift and reside or use any portion of the tenanted premises. At this stage neither written statement has been filed nor evidence led and the stage is whether or not leave to contest the eviction should be granted to the tenant

(16) In view of the authoritative pronouncements of the Supreme Court, referred to above, I am afraid the affidavits of the petitioner, his daughter and his son-in-law to the effect that the daughter and son-in-law along with their two children intend to shift and reside with the landlord to look after him and his wife cannot be considered as that no evidence to that effect as yet has been led nor opportunity granted to the parties. In case such affidavits arc relied upon. then the tenant would be deprived of an opportunity of cross-examining the witnesses and without it truth cannot be properly discovered. Therefore, in my opinion, by having relied upon the affidavits of Gita Malik and Vijay Malik and also of the landlord in this regard, the Rent Controller has erroneously approached the case and this circumstance should not be taken into consideration by him.

(17) However, if the affidavits of Gita Malik and Vijay Malik and the landlord in so far as the averments to the effect that the son-in-law and daughter of the petitioner intend to shift and reside with the landlord to look after him and his wife are excluded from consideration, the next question that arises for consideration is whether the facts admitted and uncontroverter in the affidavits are still enough to refuse leave to contest the eviction petiion.

(18) After having perused the affidavits, the following facts stand uncontroverter: (i)that the petitioner has a daughter, who was married in the year 1971 and she is residing with her husband and two children in the house of her in-laws in Karol Bagh, New Delhi and presumably must be visiting the house of the landlord and his wife frequently to enquire about their welfare: (ii) that the petitioner and his wife who are very old were aged 83 years and 75 years respectively at the time of institution of the petition and are living in two bed rooms besides dining and drawing room, on ground floor of D-21, Hauz Khas, New Delhi and that one room is being used as Pooja Room by the wife of the petitioner being an old and pious lady; (iii) There is at present one part time servant working with the landlord couple. Further having regard to their old age and couple living along in the premises, they no doubt require a whole time servant to look after them: (iv) That the landlord and his wife are being visited by guests who are residing in Delhi very frequently.

(19) In the face of the admitted facts, in my opinion, leave to contest the eviction petition cannot be granted.

(20) Reference has been made by Shri Marwaha, learned counsel for the respondent, to Pal Singh Vs Sunder Singh . In that case, eviction petition was also for bonafide requirements of the landlord and the Tribunal had come to the conclusion that the respondent as landlord had a right to ask accommodation for his daughter for occasional visits. Need for a Pooja Room was also permitted by the Traibunal. The Supreme Court while deciding the matter whether the landlord required the premises bonafide did not disturb the findings of the Tribunal nor was such a finding assailed. In other words, it has now been accepted that the Court can also take note of that the landlord has a right to ask for accommodation for the daughter for occasional visits and Pooja Room.

(21) In this context, reference may also be made to S.K.Gupta and another v. R.C. Jain wherein it has been held by this court that if the landlord requires one separate room for each member of his family including himself and his wife, his requirement cannot be said to be unreasonable. In Bulaki Ram it has also been observed that married daughters' requirement who may be visiting the parents also needs consideration while determining the requirement.

(22) A similar view, again, has been expressed by this Court in Dr. B.R. Malhotra v. M.R. Kukreja (deceased) through L.R. (1988-1 Rcj 490) and this Court has held that the need of the landlord is to be assessed in the whole perspective, viz., his way of living his social status and the number of family members living with him and the accommodation available to him.

(23) It will also be appropriate to refer to TilakRaj v. Krishan Lal (1982 Rlr (Note) 33) wherein it has been held that the landlord was entitled to say that the married daughters keep on visiting their father's home and were entitled to some accommodation (Guest room) for them also.

(24) In the present case, even if it is assumed that the daughter and son-in-law of the landlord do not intend to reside with the landlord, it cannot be denied that they are living in Delhi and must be visiting very frequently the house of the landlord to meet them and/or even to look after them and more particularly when the petitioner and his wife are fairly old. Although the landlord has stated that he and his wife arc suffering from various ailments which has hen denied by the tenant but the age factor in itself is a disease and at this advanced stage, they do require looking after by their daughter and son in law. Even otherwise, even if it is assumed that they are hale and hearty, the daughter and son in law along with their children must be visiting them.

(25) In these circumstances, the landlord has every right to say that he is entitled for accommodation for them. Furthermore, if has not been denied that the landlord is being visited with guests who are residing in Delhi very frequently. Even otherwise they require one servant to look after them for whom also some accommodation is required.

(26) Having regard to the requirements of accommodation of the landlord and for guest room, for the daughter, son in law and their two children; other guests of Delhi who are visiting the landlord frequently and for servant and-over all circumstances in view the landlord/respondent is entitled to take possession of the premises as prayed for.

(27) It may be noticed here that clause (5) of Section 25B of the Act has been enacted as a very salutary provision in order to prevent frivolous pleas taken by the tenants to avoid eviction as observed in paragraph 17 of the judgment in Kewal Singh v. Mt. Lajwanti .

(28) In the light of what is discussed above, on the admitted and uncontroverter facts, I am of the opinion the landlord has established his case affirmatively that he requires the premises bonafide and therefore, the tenant is not entitled to grant leave to contest the eviction petition and the impugned order passed by the Additional Rent Controller is justified in the circumstances.

(29) Mr. Sethi, learned counsel for the tenant has next contended that the landlord is already in possession of the premises on the ground floor and he wanted additional accommodation and in such a situation the Supreme Court has laid down that when there is a case of requiring additional accommodation, there is no need to take a summary procedure and in such cases leave to contest the eviction proceedings should be granted. He has relied upon a order dated 18th January, 1990 of the Supreme Court inDr.S.M .Nehru v. D.D. Malik (Civil Appeal arising out of Special Leave Petition (Civil) No. 236 of 1990). In that case the facts in detail have not been given by the Hon'ble Supreme Court as to what were the requirements of landlord and his family consists of how many members etc. and the leave to contest was granted in peculiar facts and circumstances of that case This case is, therefore, distinguishable. Further it has not been laid down as a matter of principle that in every case of additional accommodation, the leave to contest must necessarily be granted.

(30) At the end I may observe that the tenant is a Director of Cement Corporation of India and can very well afford to pay a little higher rent and get another suitable accommodation. On the other hand, the landlord and his wife are 87 and 78 years old at present and are entitled to have an additional accommodation as prayed for.

(31) The revision is, therefore, dismissed and the impugned order is upheld. There will be no order as to costs in the circumstances of the case.