Kelvinator Of India Ltd. vs A.P. Bagai
1993 Latest Caselaw 677 Del

JUDGMENT

D.K. Jain, J.

(1) The petitioner, M/s.Kelvinator of India Ltd. is a tenant in possession of the premises bearing No.29, Friends Colony (West), Mathura Road, New Delhi, having been let out the same by the respondent, Mr.A.P. Bagai as Karta of his Hindu Undivided Family. The respondent claims that his Hindu Undivided Family, consisting of himself and his son, is the landlord/owner of the said premises, which had been purchased by him from Nathu Ram Friends Colony Cooperative House Building Society Limited vide registered sale deed dated 03 January 1970.

(2) The respondent, A.P.Bagai, as Karta of his H.U.F., filed a petition on 15 May 1986 under section 14(l)(e) read with section 25B of the Delhi Rent Control Act, 1958 (for short theAct),for eviction of the petitioner company from the said premises on the ground of bona fide requirement of self and other members of his Hindu Undivided Family on the pleas : (i) that he was residing on the first floor of a rented house at J-51, Lajpat Nagar Iii, New Delhi; the landlord of the said house was living on the ground floor of the said house and was pressing him to vacate it; his landlord's harassment forced him to lodge complaints with the police; his landlord had served a notice on him to vacate the premises, failing which he had threatened to take legal action; his relations with his landlord had become strained; being 80 years old, he could not stand any tension and, therefore, it had become a dire necessity for him to occupy his own house and spend the remaining years of his life in comfort and serenity (ii) that he had very recently developed cardiac problem on account of the tension due to the attitude of his landlord, he had been advised not to climb stairs and, therefore, the premises in his occupation had become unsuitable for him and (iii) the other portion built on a part of the premises in question (annexe) had fallen to the share of his daughter Ms. Laxmi Gupta by virtue of a family arrangement, which had been upheld by the High Court of Delhi, and the other members of his Huf were left with no interest in this portion and. therefore, he has no reasonably suitable residential accommodation in Delhi. It was claimed that the respondent was the owner/landlord of the premises which were held by him as Karta of the Huf and the premises had been let out for residence and the same were being used as such for residence of the Managing Director of the petitioner company.

(3) The eviction petition was resisted by the petitioner denying the plea of bona fide requirement and alleging that the petition was mala fide, filed for ulterior purpose to have it vacated and re-let at higher rent and/or to sell it with vacant possession on a fabulous price. It was claimed that (i) the Huf was not the owner of the premises in question (ii) the premises had been let out for non-residential/commercial purpose as well and that these were, in fact, being used for business activities of the petitioner company besides for residence of its Managing Director and petitioner company's guest house (iii) the eviction petition was for a part of the tenanted premises, and as such not maintainable and (iv) that the story of strained relations with his Lajpat Nagar landlord, the respondent's ailment or his developing cardiac problem and of the non-availability of the portion of the house allegedly given by him to Ms.Laxmi Gupta in a family arrangement followed by a decree of the court were collusive and fake and the plea of respondent having developed cardiac problem was incorrect and unwarranted. As such, it was pleaded, the petition was not maintainable.

(4) To entitle himself to an order for eviction against a tenant under section 14(l)(e) of the Act, a landlord has to prove that: 1)the premises had been let out for residential purpose; 2) landlord is the owner of the premises; 3) the premises are required bona fide by the landlord for occupation as a residence for himself or for any person dependent on him or for any person for whose benefit these are held; and 4) the landlord or such person has ho other reasonably suitable residential accommodation.

After evidence, the learned Addl. Rent Controller found all the elements proved by the landlord and allowed the eviction petition on 21 November 1992 against which the petitioner/tenant has filed this petition under section 25B(8) of the Act, assailing, in the lengthy and somewhat sprawling and repetitive petition, the findings of the Addl. Rent Controller on all counts as being erroneous and perverse, the order based on surmises, being in excess of jurisdiction exercised illegally and with material irregularity.

(5) I have heard learned counsel for the parties and have also gone through the record and considered the rival contentions of the parties.

(6) MR.R.K.ANAND,SENIORADVOCATE, learned counsel for the petitioner, first assailed. the finding of the Addl. Rent Controller holding that the Huf of Mr.A.P.Bagai is the owner of the premises. He drew my attention to the sale deed dated 03.January 1970, Ex. A-1. and submitted that its entire tenor indicates that the property in question was acquired by Mr. A.P.Bagai as an individual and urged that the Huf was .not the owner as claimed by the respondent. In support of his contention, he laid emphasis on the following portion of the preamble to the sale deed:

"......SHRIA.P.BAGAI,I.A.S.(Retd.)son of Shri Hukam Chand Bagai, resident of J/51, Lajpat Nagar Iii, New Delhi, Karta of a Joint Hindu family consisting of himself & his son, Shri Gautam Budha Bagai, hereinafter called "the Vendee" (which expression shall be taken to mean and to include the said Shri A.P.Bagai, his heirs, executors, administrators, representatives and assigns, except where the context requires another and different meaning), Of The Other PART."

(Sidelined for reference).

(7) His contention is that a reference to the above narration, particularly the latter sidelined portion in the sale deed, viz. "the expression vendee......A.P. Bagai, his heirs.......assigns....." shows that though apparently made to appear as sale to H.U.F., it in fact was to A.P.Bagai, the individual, it is maintained that this, coupled with the circumstances that the signatures as vendee appear of A.P.Bagai (the individual) and not as Karta of Huf, shows that the Huf is not the owner of the property, which belongs to Mr. A.P. Bagai, the individual and as such the eviction petition filed by A.P.Bagai on behalf of H.U.F. was not maintainable.

(8) I do not agree. The opening sentence of the quoted portion of the sale deed makes the real intention absolutely clear that the sale was taken by A.P.Bagai for and on behalf of H.U.F. comprising of himself and his son. Reference to H.U.F. could not be merely byway of description of A.P.Bagai, as is sought to be pleaded. The reference to it was material as components of his H.U.F. were also stated. The addition of the sidelined portion was redundant and superfluous. The clear intention in the opening-portion cannot be rendered nugatory or useless by the sidelined portion. The intention to make H.U.F. as owner and vest the property in it finds unflinching support from the fact that it is the H.U.F. and not the individual which later let out the premises to the petitioner.

(9) EX. A-3 is the lease deed between the parties, which unequivocally records that the H.U.F. of A.P.Bagai and his son is the owner of the premises in question which had been let out to the petitioner by A.P.Bagai in his capacity as Karta of the said H.U.F. He has signed the lease deed as such. There has been no change in the status of the parties except that the lease has expired by efflux of time. It is thus, not open to the petitioner to challenge that the H.U.F. is not the owner of the premises in question. Support is lent to this view by Ganesh Floor Mills vs. Ramesh Chand. (1979) 16 D.L.T.87, and M/s. international Building & Furnishing Co. Pvt. Ltd. and another vs. J.S.Rikhy and others, .

(10) Devi Das vs. MohanLal. , relied upon by learned counsel for the petitioner, to contend that the tenant is entitled to challenge the title of the landlord on the plea that the transfer in his favor is sham, is not applicable to the facts of the present case. The authority holds that on petition under section 14(l)(e) of the Act being filed, based on a sale deed, it is open to the tenant to challenge its validity and show that the sale deed is a sham transaction. In that case, the plea raised by the tenant was that the alleged sale under sale deed executed in favor of one Mohan Lal, by his father Jugal Kishore, as attorney to Jagiri Lal and Vasdev, was sham and the sale deed was executed only to provide a ground for eviction of the tenant, as earlier application filed by Jugal Kishore as attorney of Jagiri Lal and Vasdev for ejectment of the tenant from the premises had failed. The appellate authority did not permit the tenant to refer to the evidence adduced on the point and rejected the tenant's case, taking the view that the tenant could not challenge the validity of the sale deed executed in favor of Mohan Lal, the vendee, as the tenant was not a party to it. The High Court had not adverted to this aspect of the matter. In Special Leave petition, the Supreme Court allowed the appeal, set aside the decree for eviction and remitted the case to the trial court to consider the evidence recorded on the point and record a finding on the question whether the sale of the building to Mohan Lal was a bona fide transaction. Not so here. The sale in the present case is not and cannot be impeached as a sham transaction. The sale is admitted. The plea is that it is in favor of A.P. Bagai as individual and not to H.U.F. as it ostensibly purports to be, which, for the aforesaid reasons, I am not persuaded to hold. In the present case, the sale was unmistakably in favor of HUF. The ratio of the said judgment is, thus, not applicable to the facts of the case in hand.

(11) Assailing the findings of the Addl. Rent Controller on the letting purpose being residential, it was vehemently argued by Mr. Anand that it was not so and that as per lease deed the premises had been let out to the petitioner company for the dual purpose of the residence of the Managing Director and as guest house for the officers of the company, the premises were, in fact, used by the company from the very inception of the tenancy as its office, where meetings and conferences were held and it was not open to the respondent/ landlord now to contend that the purpose was merely residential.

(12) Letting purpose is to be determined from the terms of the lease deed. In the present case, as per stipulation in clause 3 of the lease deed,Ex.A-3,IT is "for the residential purposes of the Managing Director as also for the purpose of the official guest house." Clause 4 of the said lease provides that the premises shall not be used for the purpose of any trade or business nor shall they be used for any purpose barred by the rules, bye- laws........etc. The terms of the lease deed, read as a whole,leave little scope for doubt that the letting purpose was residential. It does not cease to be so if besides residence of company's Managing Director it is let out also for the purpose of use as a guest house by the company's officers or otherwise used as such. This has been the consistent view of this Court taken in M/s. Jagatjit Industries Ltd. vs. Shri Rajiv Gupta, 1980 (2) Rcj 769, Mst. Shaukat Bano vs. U.P. Co-operative Federation Ltd.. 1986 (1) Rcj 675 and Mrs. Y. Rajeshwari vs. Bombay Tyres International, 1989 ( 1 ) Rcr 359.

(13) Learned counsel for the petitioner, however, urged that the view taken in the aforesaid authorities stands impliedly overruled by a later judgment of the Supreme Court in Smt. A.N. Kapoor vs. Smt. Pushpa Talwar, . to the effect that if the premises let out for residential purposes are regularly ai.d openly used for lodging paying guest with the knowledge of and implied consent of the landlord, the premises cease to be residential. The authority is clearly distinguishable from the facts of the instant case and the argument advanced is fallacious. In Mrs.A.N.Kapoor's case (supra), the premises let out for residential purposes were regularly and openly used by the tenant, beyond doubt, to the knowledge of the landlord, not only for her residence but also for lodging her foreign paying guests. She had been running a boarding house in the premises since the inception of the tenancy and it was held that such continued open user of the premises for the purpose of lodging paying guests, with the implied consent of the landlord, took the premises out of the category of premises let for residential purposes. In the present case, there is nothing on the record to suggest, even remotely, much less prove, that the premises were being used as a paying guest house, what to say of its regular use as such.

(14) Some evidence was produced by the petitioner to show that the premises, besides its user as residence of the company's Managing Director, were some times used for stay of its senior managers and for holding officers' meetings and conferences and the office of the company was also there. Some persons claiming to have business dealings with the petitioner, viz, Jagan Nath (RW-2), Joginder Khanna (RW3) and K.B.Chhoi (RW4) stated to have met the Managing Director in his office there and cross-examined, obliquely stated to suggest that the meetings and conferences were held with the Managing Director in the premises and the letting purpose had thus changed. I am of the view that this evidence cannot be looked into.As held in Mrs.Y.Rajeshwari'scase(supra), if there is a written agreement between the parties showing the letting purpose unmistakably, then no other evidence is to be taken into consideration for determining the letting purpose except that if the letting purpose has been changed by any subsequent agreement, then the said agreement would govern the letting purpose. It is not the case of the petitioner that there was a subsequent agreement changing the letting purpose. Instead, there is an overriding clause (clause 4) in the lease deed prohibiting user of the premises by the tenant for any commercial purpose. The petitioner entering into a lease agreement for user as residence of its Managing Director and for its guests with the supervening clause prohibiting user for commercial purpose, itself shows that the user of the premises as company's guest house was considered by the petitioner itself as not commercial. The sum total, therefore, is that the letting purpose of the premises in question is residential and has not ceased to be so by its user as company's guest house.

(15) Besides, the evidence adduced about the alleged user of the premises as an office for holding-meetings and conferences is neither cogent nor credible. The witnesses produced could not stand the test of cross-examination and admitted that the Managing Director of the petitioner company had his offices at Farida bad and at Atma Ram House, Tolstoy Marg, New Delhi and that the petitioner company also had its regional office at Rajendra Place, New Delhi.

(16) S.P.SINGH Bhalla(RW-l),an employee of the petitioner company,examined to prove user of the premises as its office and guest house, when cross-examined interestingly feigned ignorance if the Managing Director of the Company resides there (not denied by the petitioner company) and further admitted that company's Managing Director had his office both at Faridabad and at Atma Ram House.

(17) Shyam Sunder Seth (RW-5) Company's General Manager claimed to have visited the premises daily and stated that these were taken for the residence of the Managing Director and official guest house of the company. He made no mention of the user of the premises for company's office. The testimony of other witnesses produced on the point of user of the premises for holding officers' meetings is too casual and carries little conviction. Even if the testimony of the witnesses produced were to be believed, I am of the view that the Managing Director's calling officers of the company or others for meeting or discussion at his residence, would not change the letting purpose and it would not cease to be residential.

(18) On the above evidence, the learned Addl. Rent Controller concluded that there was no credible evidence of the user of the premises as petitioner company's office and/ or holding meetings or conferences. Learned counsel for the petitioner rightly, did not press this aspect of the case or otherwise assail the Addl. Rent Controller's findings on the issue nor contend seriously the alleged user of the premises for company's office or for meeting or for commercial activities. I see no ground to interfere with the finding of the learned Addl. Rent Controller on the point, which is accordingly affirmed.

(19) It was then contended by learned counsel for the petitioner that the eviction petition had been filed for a part of the tenancy premises and as such it was not maintainable. It was maintained that apart from the premises let out vide lease deed Ex.A-3 dated 31 October 1981, respondent/landlord has made available to the petitioner/tenant some adjoining vacant piece of land admeasuring 22 x 14 feet, enclosed by a wall on the southern boundary to the leased premises, not included in the eviction petition, which as such is only for a part of the tenancy premises, and the petition was not maintainable.The respondent denied that the said land formed part of this tenancy and claimed that it was independently given on license basis under petitioner's letter dated 30May 1984,Ex.P-5. Whether letter Ex.P5 tantamounts to creation of a tenancy or mere license is not the matter in issue in these proceedings. The fact remains that the demised land under the said letter is an independent contract between the parties, which cannot be taken as a part of tenancy to which the petition relates. The objection raised is, therefore, meritless and is rejected.

(20) The findings of the Addl. Rent Controller about bona fide requirement of the premises in question by the respondent/landlord on the pleas of unsuitability of his Lajpat Nagar tenanted premises, his alleged strained relations with his landlord and the nonavailability of the said or any other premises were vociferously challenged by learned counsel for the petitioner, who submitted that there was no justification to hold so and there were circumstances to show that the eviction petition was mala fide. He maintained that the eviction petition was filed with an ulterior motive to have the rent increased or to get the premises vacated for sale at a fabulous price; that the respondent being a retired I.A.S. officer lived on rental income and his plea for requirement of the premises of self occupation being destructive of the same is most unlikely. Learned counsel strenuously urged that (i) the respondent's relations with his landlord were not strained but cordial since utter the respondent's shifting from ground to first floor and he had collusively suffered an eviction decree from the first floor of that house; (ii) the Lajpat Nagar tenanted premises were not shown to be unsuitable, in that, there was no evidence in support of his plea of unsuitability of the existing premises on the ground of his ill health, and (iii) the respondent had alternative residential accommodation in Delhi, being the annexe on the same plot on which the premises in question are built, which he had collusively managed to get rid of and make it unavailable to him by manoeuvring a family arrangement with his daughter Ms. Laxmi Gupta and suffering a decree on the basis of the said family arrangement, on which the Addl. Rent Controller had failed to give a positive finding. He stated that the whole thing was stage managed and there was no basis to hold that the requirement of the premises in question by the respondent was bona fide. Lengthy arguments on the point of bona fide requirement and kindred issues were advanced by learned counsel for the parties who also took me through the record including evidence of the parties on the point.

(21) The respondent's/landlord's case on his plea of bona fide requirement is based on the grounds that the landlord of his Lajpat Nagar tenanted premises had started harassing him, giving pin pricks about which he made complaints to the police, his relations with his said landlord became strained, he being 80 years old, could not stand tension, developed heart problem, had no other alternative accommodation in Delhi and thus required the premises in question for his residence. In support of his case, on the point, the respondent/landlord appeared as AW-1 and the petitioner company produced its General Manager Shyam Sunder Sethi,-RW-5, who had respectively supported their stand.

(22) It is not disputed that the first letting of the premises in question on 15 December 1970 commencing on 07 September 1970 was at Rs.3,000.00 per month; the first renewal of the lease in 1972 again for two years was at the same rate, the second renewal in 1974 was again at the same rate,the third renewal in 1978 was at the rate of Rs.3,600.00 per month and the last renewal in 1981 vide lease deed dated 31October 1981 (Ex. A-3). for a period of five years was for a rental of Rs.4,000.00 per month. But the circumstances of increase of rent by Rs.600.00 some eight years after the first letting and by Rs.400.00 three years thereafter by itself is not sufficient to find that the respondent's asking for vacation of the house necessarily was to increase the rent, as alleged. Infact.A.P.Bugui,AW-l has explained the last renewal of 1981 on the stated rent, saying that on the assurance of the petitioner to definitely vacate the premises, a renewal for five years, instead of three years granted earlier, was acceded to. The petitioner company's stand of demand of increase of rental of Rs. 10,000.00 per month or the respondent's intention to sell the house deposed by said Shyam Sunder Sethi, RW5, is denied by the respondent. RW-5 stated that two brokers, namely, Jainco and Bhatia had approached the company for sale of the house by the respondent. The respondent having denied any such suggestion in his cross-examination of any such demand for enhancement of rent or any such intention to sell the house, or having told any broker to look for a customer, .the plea in this behalf being of the petitioner, it was for the petitioner to prove it and for it to have produced the brokers Jainco and Bhatia. But for reasons, not explained, this has not been done. The presumption is that if produced, they would not have supported the petitioner's stand on the allegation. It cannot, therefore, be concluded that the motive behind the eviction petition was to have the rent increased or have the premises vacated with a view to sell it as alleged. No fault can thus be found with the findings of the Add). Rent Controller on the point.

(23) In para 6 of the reply to the petition for eviction, the petitioner while denying the respondent's/landlord's averment about strained relations between him and his landlord for Lajpat Nagar premises and the respondent's harassment by the said landlord, took the stand that since after the respondent's shifting from the ground to first floor of Lajpat Nagar house, the relations between the respondent and the landlord have been cordial. Implicit in the petitioner's said plea is the admission of strained relations between the two, prior to the respondent's shifting from ground to the first floor of the Lajpat Nagar house. As such, the petitioner's stand of the relations between the two having changed from strained to cordial had to be proved by it. Significantly, there is not an iota of evidence on it. None of the petitioner's witnesses has stated about it and the respondent's statement on oath of his relations with his landlord continuing to remain strained after his shifting to the first floor with the corroborative proof in the form of complaints to the police against his landlord on the point has gone unrebutted.

(24) It is not disputed that after the respondent shifted to the first floor of the Lajpat Nagar house his landlord had filed two eviction petitions against him which were contested by the respondent, the matter went to trial and after contest an order for eviction was passed against him in one of the petitions. Much stress was, however, laid by learned counsel for the petitioner on the circumstance of the parties in the said eviction proceedings getting adjournments for compromise for long and then suddenly having the date of hearing proponed from 18 February 1993 to03 February 1993,where after an order for eviction was passed in those proceedings, after the eviction order herein, and it was urged that this showed the respondent's anxiety to suffer a decree in eviction proceedings relating to Lajpat Nagar premises and the collusion between them to the detriment of the petitioner. It was sought to be deduced that the fact of passing of the order of eviction against the respondent in respect of Lajpat Nagar premises could not be taken into consideration to conclude that the Lajpat Nagar premises were not available to the respondent. I do not agree. It is clear from the record of eviction proceedings in respect of Lajpat Nagar premises, referred to by both the counsel during the course of hearing before me, that the eviction petition was contested-by the respondent, each of the parties produced its evidence and concluded it during the pendency of the present eviction proceedings, and it was explained on behalf of the respondent at the Bar that adjournments in those proceedings were being sought by the parties as the respondent herein apprehensive of eviction had assured his landlord that he would vacate the premises if he succeeds in the present proceedings. It appears to me to be so, also for the reason that after the passing of the eviction order against the respondent, he vacated the premises at Lajpat Nagar and had to hire another premises. I am not, therefore, convinced that the circumstance of getting adjournments and pre-phoning the date are sufficient to conclude collusion between the respondent and his landlord and for all practical purposes, Lajpat Nagar premises are now no more available to the respondent.

(25) Another ground for claim of the premises in question for his residence taken by the respondent was that its Karta Mr. A.P.Bagai was 80 years old, the tenanted premises at Lajpat Nagar were on first floor, he having remained under stress and strains due to the pin pricks of his landlord resulting in tension, had caused heart problem, the said premises had, in any case, become unsuitable for him. On this aspect, the respondent, as AW-l,did affirm it and stated that he had brought the record of his ailment which he could produce. Cross-examined, he stated that he was not hospitalised but was under the treatment of Dr. Talwar, though had not procured any certificate to that effect from him but could do so and repeated that he had got the prescription of Dr. Talwar. The cross-examination on the point was stopped at that without asking him to produce the prescription to indicate the fact and nature of ailment. It can thus be inferred that the respondent did suffer some heart ailment as claimed by him. This also finds support from notice dated 26 October 1985,Ex. A-4, served by the respondent on the petitioner pointing out that his heart trouble had aggravated, it was nol possible to climb stairs as per medical advice, and he required the premises in question. Admittedly, the respondent is now 88 years old. A first floor premises cannot be convenient or suitable for him.To a man of that age, apart from any ailment that he may otherwise have, living on ground floor rather than first floor would certainly be more comfortable. It cannot, therefore, be said that the first floor premises at Lajpat Nagar were suitable for him.

(26) Lastly, assailing the Impinges recorded by the Addl. Rent Controller that the annexe portion of the property built on plot No.29, Friends Colony was not available to the respondent, learned counsel for the petitioner submitted that the view taken by the Add I. Rent Controller that he could not go into the merits of the decree, Ex.A-11, passed by this court on 01 May 1974, declaring Ms.Laxmi Gupta as the owner in possession of the said annexe, (constructed on 553-1/2 sq.yards of land on a portion of plot No.29 where the premises in question stand), by virtue of family arrangement,is unsustainable in view of the judgment of the Supreme Court in Devi Das's case(supra) and a judgment of this court in Sushila Devi and others vs. A. K.Jain and others, 1988 ( 1) Rlr 412. He urged that it was incumbent upon the Rent Controller to go into the allegation of collusiveness of the parties to the alleged family arrangement dated 09 June 1973 when sufficient material/ circumstances had been brought on record by the petitioner to show that the said document was sham. He further submitted that, in any case,the decree dated 01 May 1974 is a consent decree obtained without any contest and, therefore, not binding on the petitioner. In support, reliance was placed on Pulavarthi Venkata Suhba Rao and others vs. Valluri Jugunnadha Rao (deceased) etc., . This authority holds that a compromise decree might create an estoppel by conduct but can not operate as res judicata between the parties as the matter cannot be said to be heard and finally decided, does not advance the petitioner's case.

(27) There is no quarrel with the view expressed in Devi Dass and Sushila Devi's cases (supra), holding that a tenant is entitled to challenge before the Rent Controller a partition decree obtained by a landlord on the ground that it is collusive and sham and the Rent Controller is competent to go into the question as to whether the decree is a sham and collusive transaction. However, in my considered opinion, the ratio of the said-authorities is not applicable to the facts of the instant case. In the present, case, it is in evidence that pursuant to the said family arrangement, Ms.Laxmi Gupta has been in uninterrupted open adverse peaceful possession of the annexe portion since 02 April 1973. as recited in the said family arrangement; it has been mutated by the Municipal Corporation in her name and she has been paying house-tax (Ex.AW1/X-4), water and electricity bills (Ex.AW1/ X-1 to X-3) for the said portion of the property and above all, the respondent has stated on oath that none of the other members of his family are left with any interest in the said annexe portion, in his cross-examination also, A.P.Bagai.AW-l, reiterated that Ms. Laxmi Gupta is in occupation of the annexe and the ground floor thereof is in use as a clinic by her husband. There is no evidence in rebuttal. The fact remains that Ms. Laxmi Gupta has been admittedly in open adverse possession of the annexe portion in her own right for more than 12 years. The respondent or any other member of the Huf could not lay any claim over it.Keeping in view the evidence on record on the point, the learned Addl. Rent Controller felt and held that he could not upset the family arrangement and the decree. True, no p73 specific explicit finding on the plea of collusion has been recorded by him in the impugned order. However, it is implied and in any case the pressed circumstances of Ms. Laxmi Gupta not being a member of the Huf or of the premises going to her only in a family arrangement are not strong enough to record a finding of collusion between the respondent and her. There were three renewals of the lease after the consent decree,Ex.A-ll, based on the family arrangement, made in 1974, the present eviction petition having been filed in 1986, it is difficult to hold that they had planned in 1973 to manipulate a decree in favor ofMs.Laxmi Gupta at that point of time to create a ground for eviction of the tenant twelve years later. The fact remains that the said premises were not available to the respondent.

(28) Devi Dass's case (supra) only lays down a legal proposition that it is open to a tenant to challenge the sale of the premises in his occupation on the plea of the same being a sham transaction manipulated to make a ground for eviction. As noted above, there is no dispute with this legal proposition. In Sushila Devi's case (supra), following Devi Dass's case, N.N.Goswamy, J. (as he then was), held that such a plea, as noticed in Devi Dass's case, had to be considered on merits on the evidence adduced. He also held that the provisions of section 14(l)(e) of the Act is meant to subserve a public interest and to strike a just balance between competing needs of the landlord and the tenant and it is axiomatic that when a landlord applies for eviction of a tenant under section 14(l)(e) of the Act, there is a duty cast on the court to consider the question on merits on the basis of the evidence adduced by the parties. On the basis of evidence in that case and the report of the local commissioner, appointed by the Supreme Court, before remanding the case, he found that the partition decree procured in that case had not even been acted upon and the petitioner in that case seeking eviction of the tenant was found to be in occupation of much larger portion than what had fallen to his share under the partition decree. It was, thus, held that the partition decree was a sham arrangement entered into to defeat the rights of the tenant. Not so here. The authorities relied upon by learned counsel for the petitioner are, therefore, clearly distinguishable.

(29) There is, thus, no force in the contentions raised for the petitioner assailing the findings of the Addl. Rent Controller on the various aspects, noticed above, having a bearing on the question of bonafide requirement of the respondent. The finding of the learned Rent Controller and the conclusion reached allowing the eviction petition are in order. My belief is further strengthened on the test of comparative need of the landlord and tenant, noticed by Goswamy J. in Sushila Devi's case (supra). On the one hand is a landlord aged 88 years, who was able to acquire a house in Delhi during his life career, being bounded, evicted and thus shifting to another place, in the fond hope of getting his house back to live comfortably with his family at the fag end of his life. On the other hand is a big company of standing, in occupation of 15 to 20 other properties on rent (as stated by petitioner's General Manager, RW5) and having resources to acquire an other place for the residence of its Managing Director and/or for its guest house. The order for eviction, even according to the test of comparative need cannot be said to be wrong and is confirmed.

(30) The finding of the learned Addl. Rent Controller on the bonafide requirement of the respondent is well founded. I see no reason to interfere therewith and the same is accordingly confirmed.

(31) Before parting, I may also deal with another contention raised by Mr. Anand during the course of arguments that the eviction petition as framed is not maintainable inasmuch as the description of the petitioner in the title of the petition is not in accordance with the provisions of Order 30 Rule 1 & 10 of the Code of Civil Procedure, which should have been "A.P.Bagai Huf through Karta A.P.Bagai" and not "Shri A.P.Bagai Karta of Undivided Hindu Family" as given on the eviction petition, and the petition should have been dismissed on this short ground alone. I am not persuaded to hold so. The plea, as above, now raised is too hyper-technical and, in any case, it was not raised either in the written statement or in the present revision petition. The rigour of the said provision in the C.P.C. does not apply to the petitions under the Act. I am of the view that the title fairly indicates that the petition is for and on behalf of HUF. The objection is meritless and is rejected.

(32) In the final analysis, the conclusions drawn-in the order of the learned Addl. Rent Controller,holding that the respondent isentitledtoanorderforevictionunder section 14(l)(e) of the Act, are in accordance with law. There is no ground to interfere therewith.

(33) As a result, this petition fails and is hereby dismissed. There will be no order as to costs.

(34) I would, however, grant two months' time to the petitioner to vacate the premises. "November 23, 1993.