Laxmi Iron & Steel Manufacturing ... vs Prem Ckoaa
1993 Latest Caselaw 203 Del

JUDGMENT

Santosh Duggal, J.

(1) This is tenant's Revision Petition under Section 25-B, Sub-section (8) of Delhi Rent Control Act (for short, the Act) against the order of eviction passed on 24-4-1991 in respect of the tenancy premises, comprising the 1st and 2nd Floor of property bearing No. C-549, defense Colony, New Delhi, on landlord/respondents' eviction petition filed on the ground of bona fide personal requirement, under Clause (e) of Proviso to Section 14 (1) of the Act.

(2) The facts briefly are that the property bearing No. C549, defense Colony, was purchased by the respondent on 30.12.1981. He was already in possession of the ground floor whereas the petitioner was a tenant in possession of the first floor and second floor Along with one servant quarter in the second floor. The Eviction Petition was filed in the year 1987 after the expiry of the period of five years from the date of purchase, during which the landlord was debarred from filing an eviction petition on the ground of bona fide requirement, in view of the provisions of Section 14(6) of the Act.

(3) The plea in the eviction petition was that the landlord and his family had at their disposal only the ground floor which consisted of drawing-cum-dinning room and two bed rooms besides kitchen etc. and that his family consisted of himself, his wife and two daughters who were siudying, and each required a separate room to herself, and also his mother, who was stated to be living with them, and that she too required a bed room.

(4) This eviction petition was disposed of by the impugned order, in favor of the landlord on the basis of the evidence recorded. Petitioner's plea, as tenant, was that the landlord was in possession of sufficient accommodation, and did not require any other additional accommodation, which was rejected, on the basis of evidence adduced before the Additional Rent Controlle. The assertion that the tenancy premises were let out for residential-cum-commercial purposes was also disbelieved by holding that the tenant had failed to prove that the premises were let out for composite purpose, or were used as such from the inception of the tenancy, particularly in view of the fact that members of the tenant's family consisted of two brothers and their families and that the plea that part of the tenancy premises; namely, Barsati floor was put to commercial use was not credible.

(5) The findings recorded by the learned Additional Rent Controller, are assailed in this Revision Petition on the ground that Landlord's requirement for additional accommodation, namely the tenancy premises has been erroneously held to be bona fide, and that the accommodation at his disposal was sufficient for his requirement, for him and his family members dependent upon him for residence and further that the finding about the premises having been let out only for residential purpose, and that the observations of the Court that a person would not ordinarily use a garage or the servant quarter as a room or as a study room unless he is very much hard pressed for accommodation, was based on erroneous assumption.

(6) During hearing, Shri Jain appearing for the petitioner has argued primarily to challenge the findings of the Additional Rent Controller on the question of bona fide personal requirement of the landlord and contended that the accommodation consisting of the garage, which according to Mr. Jain, is connected with the main house from inside, and was being used as a regular room. or besides availability of the servant quarters being put to use as a study, and keeping in view the members of landlord's family, namely, himself, his wife and two daughters, the finding that be required more accommodation, than already in his occupation was not sustainable. Mr. Jain further argued that respondent's case in the eviction Petition that his mother was also residing with him and was dependent upon him had not been believed, with the result that the members of the family are reduced to himself, his wife and two daughters and that two bed rooms as available to the family on the ground floor in their occupation should be sufficient as the daughters can very well share one room. He has also referred to the plan filed in Court with the Local Commissioner's report which has been prepared with the help of an architect, to show that the garage is connected with the house through the bed room, and had a wooden partition, and was being utilised as a room. Mr. Jain further argued that there was an Acc sheets covered verandah, adjacent to the kitchen, and further that the servant room above the garage is also shown in the plan as being used as a study, and all this accommodation ought to be treated to be sufficient for the requirements of the landlord.

(7) MR.MAKHIJA'S reply, on the other hand, is that the accommodation in the form of the garage or the servant quarter could not be treated to be a part of the living accommodation, and that insofar as regular bed rooms are concerned, these are only two in number whereas the evidence which has been accepted by the Rent Controller is that daughters of the respondent were grown up, and required one bed room each to themselves. Mr. Makhija further stated at the bar that age of the daughters was 24 and 21 years, and elder one is a fashion designer, and the younger is a student of polytechnic, and that each one required a room to herself. Mr. Makhija further supported the findings of the learned Rent Controller, by submitting that it has been proved on record, which evidence has been accepted by the Rent Controller, that the respondent was a man of status inasmuch as well as hi wife were Income Tax Payees and it was also in evidence which has been accepted by the Rent Controller that the respondent has married sisters and brothers and other relatives who regularly visited him, and even mother though held to be not permanently living with the respondent, could certainly be visiting, and staying with him and that there was a statement on oath by the landlord that he was experiencing acute scarcity of accommodation whenever they visit him and had to spare his own bed room for them and further that the servant quarter and garage could never be equated with living rooms in which the landlord or his family could be compelled to live simply because the tenant was occupying a part of the property. Neither the garage that has no ventilation nor the servant quarter with approach by a wooden ladder from the driveway, could be considered fit for occupation as bed room.

(8) Mr. Makhija placed reliance on a judgment of this Court reported as K.B. Mathur etc. v. Bhagwant Singh, 1988 Rajdhani Law Reporter page 492 that a landlord cannot be expected or compelled to use servant quarter or the garages as living accommodation, and that the mere fact that the garage and the servant quarter is available to the landlord would not be a factor to be taken into consideration to assess requirement of the landlord for residential purposes. The learned Counsel also referred to the judgment of this Court reported in Anand Perkash v. Ganeshi Devi, 1985 Rajdhani Law Reporter Page 402 where the need of the landlord was accepted by taking into consideration the requirement of the grand daughters, who were studying in school, by holding that each needed one separate room to herself. Mr. Makhija argued that need in the present case is more because here daughters are grown up, and not mere school students.

(9) In so far as the question as to whether the whole of the tenancy premises were let out for residential purpose or whether for residential-cum-commercial purpose is concerned it has no doubt been taken up in the Revision Petition but was not argued during hearing. Nevertheless, Mr.Makhija has submitted that the lease deed executed between the respondent and the petitioner company has been proved on record as Ext. AWI/4, and there is a clear stipulation in Clause 6 of this lease deed that the premises would be used for purpose of only residence of the officers of the company. In face of these written terms of the contract between the parties, no oral evidence to the contrary can be admitted or entertained, in view of provisions of Section 92 of the Evidence Act. Besides this legal bar in the way of the petitioner to plead otherwise in contradiction to the written terms of the lease deed; otherwise also there is a finding of fact, by the Additional Rent Controller, disbelieving the plea of the tenant that part of the tenancy premises, namely Barsati floor was put to commercial use. 1 do not find any error committed by the Additional Rent Controller in rejecting tenant's plea in this respect. In any case, there is no evidence that commercial user of part of the tenancy premises, if any, was with the knowledge or consent of the previous landlord. There is not even a suggestion that the present respondent in any manner consented to any such user.

(10) The scope of a revision under Section 25-B(8) of the Act is very much limited, namely restricted to the examination by this Court, as to whether the order passed by the Rent Controller was correct and according to law, and that whether any error has been committed in recording the findings, which are the subject matter of revision petition.

(11) I have gone through the impugned order in this case. I find it is a very well reasoned and detailed order, based on evidence on record, and the findings on the question of bona fide of the requirement of the landlord or his family cannot be faulted with. A perusal of the plan filed with the eviction petition, as well as now prepared by the Local Commissioner through an architect, makes it abundantly clear that in so far as proper living accommodation is concerned which is at the disposal of the respondent that comprises only of drawing-cum-dining room, a kitchen and two bed rooms. It has already been held that the garage portion or the servant quarter though being put to use by the landlord/respondent as a store or a study, cannot be taken into consideration or treated as living accommodation because the whole plea of the landlord is that he requires extra bed rooms, one for his daughter and one for the visiting guests. That one bed room is required for each of the grown up daughters, one of whom is working and other a student of Polytechnic, is in no way an exaggerated claim but a necessity considering the ages of the daughters, family's stale and the different pursuits of the girls-one working and the other studying. The need turn earmarking one bed room for visiting guests who consist of close relatives, and according to the landlord's statement keep on frequently visiting has also to be taken into consideration which factor is now well recognised as a component of landlord's need. The Rent Controller has also accepted the plea of the respondent in this respect and on facts and circumstances of the case, no interference is called for. The Additional Rent Controller has rightly held that it is indicative of the scarcity of accommodation at the disposal of the landlord, that he is constrained to put garage and the servant quarter to uses, other than their normal one.

(12) Mr. Jain submitted, at this stage, that there was no specific plea in the eviction petition for the requirement of the visiting guests, and to that extent, the Court could not take these facts into consideration. Mr. Makhija has, however, pointed out and rightly so, that evidence was positively led on this point to which no objection was raised nor any rebuttal evidence produced, nor any question put to controvert the respondent, nor has this aspect of the finding been challenged in the Revision Petition and that otherwise also once the landlord pleads about his total requirement for the tenancy premises for his bonafide personal requirements he can elaborate in his evidence as to what that requirement means in order to satisfy the Rent Controller about his bona fides.

(13) I do not therefore find any ground made out for interference in the findings recorded by the Additional Rent Controller in the impugned order.

(14) Mr. Jain's argument that the respondent having purchased the house with sitting tenants with his eyes open, being in occupation of the ground floor of the premises as a tenant, he should have anticipated his requirements, as there has been no increase in the number of his family members, and in the circumstances, he should not have purchased this property in case he required a full house. That plea is not sustainable for the short reason that when the respondent purchased this property which was in the year 1981, his daughters would have been very small or his income may have been relatively less. In any " case, no question having been put to the respondent in this respect when he came in the witness box, so as to afford him chance to explain circumstances when he purchased the property nor any objection having been taken up in the revision petition,1 do not think such an argument can be entertained at this stage, and he could have very legitimately expected to seek vacant possession of the property, through process of law and to that end he filed eviction petition, and he cannot be put out of Court simply because he had at one point of time purchased the property with sitting tenants. The law does not contemplate any such inference, and in order to ensure that there was no mala fide use of the provisions of bona fide requirement by unscrupulous persons, it has been provided that for a period of five years after the date of purchse, the buyer shall be debarred from seeking eviction of the tenant. That safeguard a adequately provides a check against any mala fide on the part of the landlord.

(15) Mr. Jain then submitted that the petitioner was willing to exchange the tenancy premises with the ground floor portion in occupation of the landlord. Mr. Makhija has stated on instruction that this plea is not acceptable to the petitioner today when no such offer was made during pendency of the eviction petition, which was filed as far back as in the year 1987, and even the eviction order was passed almost two years back and no such offer has been made at any stage, nor in the revision petition and the landlord cannot be now confronted with such an offer at the fag end of arguments and that this offer in the circumstances is not bonafide, and merely an attempt to put off the respondent/ landlord. Mr. Makhija also placed reliance on some judgments of this case to the effect that the landlord is not bound to accept an offer by the tenant to exchange the tenancy premises. He particularly referred to Avinash Chandra v. Sohni Devi, 1982 Rajdhani Law Reporter 604. Similar view was expressed in H.S. Trehan v. Hindustan Kokoku Wires Ltd., 1988 Vol. Ii, Delhi Lawyer 304 that the offer made by the tenant at the fag end of the arguments is not binding on the landlord, and he would be justified in declining this plea. This Court had also in a recent judgment reported as Fibre Bond (Sales) Pvt. Ltd. v. Smt. Chand Rani, 1993 Vol. 25 D.R.J. 382 held to that effect. The respondent is thus justified in turning down the offer at this stage and the revision petition is to be diposed of on merits.

(16) On consideration of all the aspects, I do not, find any merit in this petition, and the same is dismissed with costs. Counsel's fee Rs. 1,000.00 . The petitioner has already availed of about two years since after the passing of the order of eviction. It is therefore, directed that the respondent shall be put in peaceful vacant possession of the tenancy premises, per site plan on record, by the petitioner, within one month from today failing which, respondent would be entitled to take out execution.