Radhey Shyam vs Ram Kishan
1994 Latest Caselaw 680 Del

JUDGMENT

Devinder Gupta, J.

(1) [ED. facts: Respondent was a Govt. servant in Ministry of defense. He retired from service on 31.1.93. Within one year of date of retirement he sued petitioner for eviction u/S. 14C of Drc Act, 1958 as amended in 1988 alleging that he was living in his father's house as a licensee and accommodation in the said house is not sufficient as his father and other family members were living. He also alleged that he had let out suit premises to petitioner on 6.6.90 for 22 months and though giving of notice was not necessary he gave notice on 24.1.94. Petitioner applied for leave to defend contending that respdt. had ample accommodation in father's house and the said house is ancestral and that he had purchased suit house for renting out only and that landlord rented out premises to him in 1987 and had been repeatedly enhancing rent from Rs. 950.00 to 1050.00 and then to Rs. 1200.00 on 6.6.90 and then to Rs. 1300.00 (by enhancing @ 10%). Arc did not find these assertions enough to grant leave to defend and rejected same and passed decree. Tenant filed revision in High Court.] After detailing above. Judgment proceeds :

(2) Learned Counsel for the petitioner vehemently urged that the sole object of the landlord was to have an additional annual income and not the tenant's eviction from the premises and thus the alleged need was not bonafide but was malafide one.

(3) In so far as the last submission, the matter stands concluded by the recent decision of the Supreme Court in Anand Swaroop Vohra vs. Bhim Sen (54-1994 Dlt 331) wherein it has been held that in view of Section 14C of the Act an employee of Central Government who is retired or is on the verge of retirement can recover immediate possession of his tenanted premises if the same are required by him for his own residence. If such a person is having more than one tenanted premises he has to confine his requirement in respect of only one of such premises according to his choice. It was further held that the tenant will be allowed to take up defense connected with or related to the claim or right of the landlord and defense u/S. 14(l)(e) of the Act would not be available to a tenant against an application made u/S. 14B to 14D.

(4) In view of the decision in Anand Swaroop Vohra's case (supra) the last submission docs not hold good that petitioner was not entitled have his petition decided in a summary procedure or that the petition ought to have been tried as a regular petition.

(5) A bare reading of the application for leave to defend as also the affidavit filed in support thereof by the tenant, would show that there is absolutely no friable issue arising for determination Firstly the affidavit is not an affidavit in accordance with law. The tenant has failed to disclose the sources of his knowledge as regards the averments made in the affidavit. He has simply stated in the verification clause that the contents are true to his. knowledge without disclosing source of knowledge. In Mis Sukhwinder Pal vs. State it has been held that where allegations are to the best of the knowledge of the deponent, the nature and source of knowledge must be disclosed. The landlord had specifically alleged that the Paharganj house is owned by his father and is not an ancestral property A bare averment by the tenant without any basis or source of information that it is ancestral house and jointly owned by the landlord and his father will not make it a friable issue since the affidavit of the tenant does not disclose as to on what basis he was stating that it was an ancestral house. It was necessary for the tenant to have at least stated that at given point of time the property was owned by the grandfather of the landlord or that the father of landlord acquired title therein by inheritance from his father. In the absence of this, vague allegations in the affidavit will not make it a friable issue. To make issue a friable issue a tenant must come forward with specific averments which must be bonafide in nature.

(6) The other ground that for quite some time in past landlord has stayed in the house owned by his father will not make his occupation in the house as of right. In case the landlord has some property owned by him and wants to shift to that accommodation, such a requirement cannot be said to be whimsical or actuated with malice.

(7) On the question of periodical increase in rent it cannot be said that the increase on the face of it was malafide or that the requirement of landlord is not bonafide.

(8) The tenant did not specifically dispute the actual accommodation available in the house owned by the landlord's father. He merely stated that the plan was not correct. It was also not disputed in the affidavit that landlord's father with his wife, elder brother of landlord with his family of four adult members including landlord and his family were residing in the building which consisted of two rooms, two small kitchens, a mezzanine room and a common toilet. The landlord gave complete measurements of each room and also filed a plan of the accommodation which was served on the tenant. Thus, in the absence of any specific averments in the affidavit of tenant as regards the discrepancy in the accommodation, the Controller was right in observing that no friable issue is raised in the affidavit.

(9) The tenant in his affidavit also stated that he had occupied the premises in 1987 and not in 1990. The landlord had placed on record a copy of the rent agreement which was not disputed by the tenant. This agreement is dated 6.6.1990 by virtue of which premises were let out for a period of 22 months to the tenant.

(10) In case a rent agreement was executed on 6.6.1990, malafides cannot be imputed to the landlord in not disclosing in the petition that the tenant in fact was in occupation since 1!.5.1987. Otherwise also it is immaterial whether tenant came in occupation in 1987 or in 1990. Primary facts were not in dispute and were otherwise apparent on the record that the landlord had retired on 31.1.1993 which is also evident from the gazette notification dated 13.3.1993 placed on record of the Controller. Tenant had also not disputed the service of notice on him and his having sent a reply to the same.