R.K. Antani vs R.N. Chopra And Anr.
1994 Latest Caselaw 595 Del

JUDGMENT

R.L. Gupta, J.

(1) This revision is directed against an order dated 20th 0ctober,1993 of the learned Addl.Rent Controller (ARC) by which he granted an eviction order in favor of the landlord-respondent-1 Sh.R.N.Chopra. According to the landlord, respondent No.2 M/s Concord International Pvt. Ltd. (hereinafter called 'M/s Concord') 5, Golf Links, New Delhi was the tenant while the petitioner Sh. R.K. Antani is stated to be a person who was first occupying the premises as an employee of tenant. Later on landlord came to know that the petitioner ceased to be an employee of the tenant about which fact he was not informed either by the tenant or the petitioner. His further claim in the eviction petition was that he required the premises bona fide for occupation as residence for himself and for members of his family dependent upon him. He also stated that he had no other reasonably suitable residential accommodation. He was in occupation of first floor of the suit property bearing No.B-110, Sarvodya Enclave, New Delhi. He had four bed rooms, a living room, kitchen, store and passage as shown green in the site plan. His family comprised of himself, his wife and two married daughters Dr.(Mrs.)Neeru Kapur and Dr.(Mrs.) Sarita Bajaj. Mrs.Bajaj along with her husband was alleged to be residing at Allahabad and came to Delhi on visits quite often. Mrs.Kapur is stated to be employed as Scientist-B in the Institute of Nuclear Medicine and Allied Sciences, Lucknow Road, Delhi 'and staying in Delhi. Her husband Sh. Vinod Kapur was employed as Manager in National Hydro Electric Power Corporation and posted in Jammu & Kashmir at the time of filing of the petition. They had a 1-1/2 year old daughter who was staying with her mother Mrs.Kapur. At present Mrs.Kapur was staying with her parents in law. But her husband had three brothers and one sister. The sister was a divorcee and had a daughter. They were also staying with parents of Mr.Kapur. The other two brothers of Mr.Kapur are married and employed in Delhi while his third brother is employed at Lucknow. His father owns a double storeyed house BK-67, West Shalimar Bagh, Delhi constructed at a plot of 125 Sq.yards. The accommodation with the parents, brothers and sister of Mr.Kapur was not sufficient to accommodate all members and daughter of the landlord. She wants to have a separate residence. Moreover, the landlord himself is aged about 65 years while his wife is aged about 63 years. Both are not keeping good health. The landlord is stated to be a chronic patient of Angina and heart while his wife suffers from ArthrIT is and Spondylitis. Landlord also had a massive heart attack in December,1988 and was admitted at that time to the Intensive Care Unit (ICU) of All India Institute of Medical Sciences from 18.12.1988 to 30.12.1988. One of his major heart artery is stated to be damaged. On account of the physical ailment both he and his wife have been advised not to climb stairs and rather stay on ground floor. The landlord requested .the petitioner and the tenant to vacate the premises. Despite assurance, they are stated to be evading the vacation of the house. Landlord also does not have any male issue and his younger daughter Mrs.Kapur is also stated to be dependent on him for residence. Because of their old age, they require constant attention of some body who could live with them tend look after them. Elder daughter of the petitioner, namely, Mrs.Bajaj, after the marriage of his younger daughter had to take two years leave from 1.1.1991 to 11.12.1992 from her assignment in Allahabad to remain in Delhi to look after him and his wife. Landlord further stated that he belongs to an Orthodox Hindu family and thus would not like to share kitchen with his daughter. Therefore, he requires a separate kitchen for his daughter and son-in-law who would be staying with him in the suit property. His plan is that after eviction of the tenant and the petitioner he along with his wife would shift on ground floor while his daughter and son-in-law along with their child will stay on the first floor where he presently stays. The landlord, it is further stated, has four brothers and two sisters. One sister stayed at Ludhiana while the other is a widow who shuttled between Delhi and Usa where her only son is in business. She does not have any independent establishment of her own in Delhi and stays with him as and when she visits Delhi. One of his brother stays at Panchkula, the second one in U.K while his third brother is in New Delhi. His brothers and sisters also frequently visit him and stay with him for nights and sometimes for days together. Thus he requires minimum two rooms as guest rooms for stay of his relatives. The wife of the landlord also has four brothers and two sisters out of whom three brothers and one sister are settled at Delhi and one brother at Vishakapatnam. The elder sister is at Dhanbad. All her family members on visit to Delhi also stay with them quite frequently. In this manner they required one entire floor for their daughter and son-in-law and their other family members. The landlord also has a servant for whom he requires one room. Though there are two rooms, one above the other, on mezzanine floor above the garage, the same are not suitable to his requirement and , therefore, they are not occupied by him. So far as the petitioner in the present revision is concerned, he is stated to have no right to stay in the disputed premises as he is an un-authorised sub-tenant. He has been made a party to avoid any further controversy at a subsequent stage.

(2) It may be noted that the alleged tenant M/s Concord after due service did not choose to file any application for leave to defend. Only the petitioner filed such an application with an affidavit. His case is that M/s Concord is not a tenant of the landlord. The premises in fact were taken on rent by the said tenant for residence of the petitioner only. Negotiations regarding terms of the tenancy were also settled between him and the landlord. The first payment of rent was made by him through cheque while the subsequent payments were made by M/s Concord towards his account and the amount used to be deducted from his salary. Some time towards the end of 1980, the landlord approached M/s Concord to enquire if it had any objection to the petitioner being taken as a direct tenant by him. Then the landlord and M/s Concord agreed to the same and since then petitioner had been living in the premises as a tenant of the landlord. In April, 1980 he resigned from the service of M/s Concord and since then he had been paying rent to the petitioner by bank drafts. The landlord had also moved another petition earlier wherein the petitioner had made an application for being imp leaded as a party at the stage of appeal against an order under Section 15(2) of the Delhi Rent Control Act ('Act' for short). The Rent Control Tribunal had allowed his appeal and he was directed to be made a party. Suffice it to note that the petitioner also disputed the claim of the landlord on bona fide requirement of the accommodation in his possession. All the allegations made by the petitioner were controverter by the landlord.

(3) I have heard arguments advanced by learned counsel for the parties. According to the findings of the learned Arc the petitioner is not a tenant in the suit premises under the landlord. However, in the alternative, assuming that the petitioner was a tenant, he came to the conclusion that the landlord could not be deemed to have sufficient accommodation in his possession in view of his large family and specially the fact that he wanted his daughter and son-in-law to stay with him in a part of the first floor of the house to look after him; and his aged wife. Learned counsel for the petitioner assailed these findings and submitted that it was amply proved in a prima facie manner that the petitioner was a direct tenant of the landlord and he was entitled to show that the landlord did not require the premises bona fide. Therefore, it was a fit case wherein leave to defend should have been granted to the petitioner so that he could prove beyond doubt that he in fact was accepted as a tenant by the landlord some time in 1980. This submission of the learned counsel for the petitioner is vehemently controverter on behalf of the landlord. Therefore, we will have to see whether, in fact, the petitioner was able to make out a prima facie case that he was actually a tenant of the landlord and thus entitled to the grant of leave to defend the petition. In this respect learned counsel for the petitioner drew my attention to a letter dated 30th November,1980, Ex.R-1 alleged to be written by the landlord to M/s Concord, which is as follows: RNC/9/1980 DATED: 30-11-80 From: R.N.CHOPRA B-110, Sarvodaya Enclave,(lst Floor) Sri Aurbindo Marg, New Delhi-110017 To M/s Concord International (Pvt) Ltd., 5, Golf Links, New Delhi-110003. Dear sir,. REG: Lease Agreement Of B-1 10, Sarvodaya Enclave (GROUND FLOOR) Please refer to the Lease Agreement dated 13.5.1978 in respect of the above mentioned premises which is due to expire on 11th March,1981. 2. Shri R.K.Antani(petitioner), an official of your Co., who is staying in the Leased premises,has suggested that you are agreeable to the termination of the lease with immediate effect and that the said lease may ' be transferred to him. I shall, therefore, be grateful if you could confirm the termination of the said lease in favor of M/s Concord International (Pvt.Ltd.) w.e.f. 30.11.80. (A.N.). Yours faithfully, (R.N.Chopra) owner of B-110, Sarvodaya Enclave, Sri Aurbindo marg, New Delhi-110017.

(4) To carry the argument further learned counsel for the petitioner also drew my attention to the written statement of M/s Concord filed in the earlier eviction petition of the landlord. In that written statement it was pleaded by M/s Concord that R.K.Antani, petitioner had been earlier working with them and had been staying in the demised premises. The landlord himself had suggested the transferring of the tenancy rights of the leased premises in favor of Mr.Antani in November,1980 and confirmation in this regard was given by M/s Concord to the landlord as per his own desire. Thus there was no privity between the landlord and M/s Concord and the landlord had no cause of action against then because the landlord had been dealing directly thereafter with Mr.Antani as a tenant. It may also be noted that the petitioner has also brought on record a copy of the judgment dated 27th March,1991 of the Rent Control Tribunal, Delhi filed at pages 33 to 37 of the file. This judgment shows that M/s Concord had filed an appeal against the order of the Arc under section 15(2) of the Act. During the pendency of that appeal, petitioner had moved an application under order 1 Rule 10 Code of Civil Procedure for being imp leaded as a party, which application was allowed with a direction to implead him also as a party in the eviction petition.

(5) As against this, learned counsel for the landlord has submitted that the pleadings of M/s Concord in the earlier petition cannot be taken into consideration because in the present petition no application for leave to appear and defend the suit has been filed by them and, therefore, it should be taken that they have no defense to offer in the present eviction petition and rather whatever was stated by the landlord will be deemed to be admitted as correct on behalf of M/s Concord. In addition to that circumstance, learned counsel for the landlord also pointed out that the petitioner beyond producing a letter of the landlord giving a suggestion to M/s Concord of desiring to accept the petitioner as a direct tenant, has not brought on record any material to show that in fact such an arrangement was accepted by M/s Concord so that it could be inferred that the petitioner had become a direct tenant under the landlord. Rather on the other hand during the course of admission and denial of .the documents, the petitioner admitted a letter dated 16th May,1984 alleged to have been written by him to the landlord. The tenor of this letter, it is argued, clearly suggests that even in May,1984 the petitioner admitted that M/s Concord was a lessee of the landlord. That letter is as follows: Dated: 16.5.1984 From: R.K. Antani, B-110, Sarvodaya Enclave, (Ground Floor) New Delhi. To Shri R.N. Chopra, B-IIO, Sarvodaya Enclave, (1st Floor) New Delhi. Dear Sir, I write to inform you that I had requested the lessee Co., M/s Concord International Pvt.Ltd., to vacate the premises (B-110 Sarvodaya Enclave). They have promised to do so shortly. You will, however, be glad to know that as a gesture of goodwill they have voluntarily agreed to increase the rent from Rs. 1,800.00 to Rs.2,000.00 p.m w.e.f. 1.5.1984. Yours faithfully, (R.K.Antani)

(6) I think the submission made by learned counsel for the landlord seems to be fully justified. In this letter which was admitted by the petitioner himself on 18.10.1993, he informed the landlord about his having made a request to the lessee. In fact, these words are very significant and conclusively convey that on that date i.e. 16th May,1984, when this letter was written by him to the landlord it was clearly understood by him that M/s Concord was the lessee and he himself had requested them to vacate the premises. Therefore, even if for the sake of argument, it be assured that the landlord had written to M/s Concord in 1980 that as suggested by Mr.Antani, they were agreeable to the termination of the lease with immediate effect and transfer of the same in his favor, this offer to the knowledge of Mr.Antani had not been accepted by M/s Concord and that is why even in May,1984 he described M/s Concord as a lessee of the landlord in the disputed premises. He further conveyed to the landlord that M/s Concord had promised to do so shortly. But probably as a bait to the landlord, he informed him that M/s Concord had voluntarily agreed to increase the rent. Clearly his intention was to test the landlord whether he actually desired the lessee M/s Concord to vacate the premises or he would be satisfied if there was increase of rent. There could not have been a more clearer admission from the petitioner in favor of the landlord to the effect that M/s Concord was actually a lessee of the premises under the landlord even in May,1984. The petitioner in his affidavit for leave to defend has taken a contradictory plea as to from when his direct tenancy started. He stated that he resigned from M/s Concord in April,1980 and started paying rent to the landlord by bank drafts since then. So according to this averment he became a direct tenant in April,1980. But in the opening sentence of para 3 of his affidavit he stated that in the end of 1980 the landlord approached M/s Concord to know if it had any objection if the petitioner was made a direct tenant in the premises by the landlord and since then he had been living in the premises as a direct tenant of the landlord. Therefore, the petitioner is not himself sure whether he has been direct tenant of the landlord since April,1980 or the end of 1980. But then he himself removes the cloud of suspicion further when he describes M/s Concord as a lessee in May,1984, that is, after almost 4 years. This admission of the petitioner is unequivocal and unambiguous and demolishes his own claim that he had been accepted by the landlord as a direct tenant in 1980. Therefore, his plea in the application for leave to defend that, in fact, he himself had become a tenant under the landlord some where in November,1980 is sham and without any merit. Therefore, the finding of the learned Arc that the petitioner was not a tenant under the landlord was fully justified and based upon clear admission in his own letter dated 16th May,1984. It is a matter of common knowledge that there cannot be any better proof of a fact than one's own admission. In fact this letter dated 16th May,1984 further goes to show that suggestion of the landlord expressed in the letter dated 30.11.1980 confirming termination of their lease with effect from 30.11.1980 was never acceded to by M/s Concord and that in fact was the reason on account of which in May,1984, the petitioner him- " self described M/s Concord as a lessee of the landlord in the disputed premises.

(7) Thus there is no escape from the conclusion that the petitioner miserably failed to show that he is a tenant under the landlord in the disputed premises. He rather proved from his own admission that M/s Concord was in fact the tenant in May,1984 and should be deemed to continue as such till the date of filing of the eviction petition. ' Therefore, clearly the petitioner is proved to be an un authorised occupant of the premises in dispute.

(8) In view of the aforesaid conclusion, it is not even necessary qua the petitioner to go into the question whether the landlord bona fide required the premises for his residence and that of his family members. That question is relevant when a tenant applies for leave to defend. Even otherwise, the learned Arc has so thoroughly gone into the question of bona fide need of the landlord also, assuming that the petitioner was a tenant which actually he is not. Learned counsel for the petitioner assailed the finding of the Arc on the later aspect and submitted that such a finding could not be reached without going into evidence after grant of permission to defend the eviction petition. It seems quite difficult to accept the argument that in such cases leave to defend should invariably be granted. Such an interpretation is likely to negate the special procedure prescribed in Section 25-B of the Act for the disposal of applications for eviction on the ground of bona fide requirement. If the bona fide need was always a debatable issue there was no need to bring on the statute book by amendment in 1975, Chapter III-A. The tenant is supposed to file an affidavit stating the grounds on which he seeks to contest the eviction application and the Controller is called upon to apply his mind and come to a conclusion that the affidavit of the tenant discloses such facts as would disentitle the landlord from obtaining the order of eviction. In the present case when the landlord furnished detailed particulars of his bona fide requirement by filing a counter affidavit before the Arc, the petitioner did not even choose to file a rejoinder affidavit for controverting his bona fide need. Therefore, even the bona fide need was made out by the landlord qua the suit premises, though it was not necessary to prove that qua the petitioner because he is not a tenant. He is only an unauthorised sub-tenant or assignee from M/s Concord

(9) The revision petition, therefore, has no merit and the same is hereby dismissed. There is no order about cost.