Bina Gupta vs R.K. Kohli
1995 Latest Caselaw 643 Del

JUDGMENT

Arun Kumar, J.

(1) On 12th November 1996 Shri R.L.Kohli, the respondent herein filed an eviction petition against the present petitioner on the ground contained in clause (e) to the proviso to Sub- section (1) of Section 14 of the Delhi Rent Control Act (hereinafter referred to as the Act) for eviction of the present petitioner from the portion in her tenancy on the first floor of property No.A-5, Greater Kailash Enclave-1, New Delhi. The premises was let out to the petitioner on a monthly rent of Rs.3000.00 vide agreement EX.AW 1/2 dated 21/8/1984. As per the case of the respondent landlord he is the owner of property No. A-5, Greater Kailash Enclave-1, New Delhi. The property was constructed, during the period 1971 to 1973. The entire ground floor of the property consists of a front portion having two bed rooms, one pooja cum study room, one drawing-cum-dining room with a court-yard besides toilet/bath and kitchen which is in occupation of the respondent/landlord. The back portion of the ground floor consisting of two bedrooms, a drawing-cum-dining room, a bath/toilet and a kitchen is in occupation of a married daughter of the petitioner whose husband works in the merchant navy. The said daughter is having three children. She has been staying in the premises since long and since much prior to the tenancy in favor of the petitioner. The husband of the said daughter remains mostly away on account of his job in the merchant navy and, therefore, the petitioner's daughter is occupying the back portion of the premises. As per the respondent/landlord's own statement he is only charging rent from his said daughter equivalent to taxes that he has to pay and maintenance charges for the portion in her possession. On the first floor of the property the back portion consisting of 3 bed rooms, one drawing-cum-dining room with bath/toilets and one kitchen is in the tenancy of the petitioner. Regarding the front portion on the first floor there is lot of controversy between the parties. According to the respondent/ landlord there is only one barsati while according to the petitioner tenant there are at least three bed rooms available to the respondent/landlord in the said portion.

(2) The family of the respondent/landlord consists of himself (present age 75 years' bids wife) son of his elder daughter who is admittedly staying with the respondent since his birth and is now about 20 years of age, son of the petitioner S.K.Kohli, his wife and his one son now aged 22 years and a daughter now aged 20 years besides servants. Thus, according to the respondent he has only 2 bed rooms with one pooja cum study and one drawing-cum-dining room available to him for a family consisting of 7 members, i.e. himself, his wife, 4 members of his son's family and a grandson (son of a married daughter). He requires the premises in the tenancy of the petitioner herein for residence for himself and his family members dependent upon him for residence.

(3) In the written statement the petitioner took all possible pleas without any regard for truth. The petitioner denied the ownership of the respondent of the suit premises. She set Up a case that the premises was let out for residential-cum-commercial purposes. It was also stated that the petitioner has sufficient accommodation available with him in the premises in suit for the residence of himself and his family. It was denied that the need of his son and his son's family could be considered because the son was working in Bombay. The tenant averred that the landlord had ample accommodation available with him on the first floor and the petition was mala fide and had been filed with the intent to increase rent. The matter went for trial. Both parties examined a number of witnesses in the course of a protracted trial. Finally the Addl. Rent Controller vide the impugned judgment dated 5/1/1995 allowed the petition and passed an eviction order in favor of the respondent/landlord granting six months' statutory time to the tenant to vacate the premises. The tenant has challenged the said order through the present petition.

(4) I have heard the learned counsel for the parties at length and have perused the record. At the outset I may note that though the ownership of the respondent of the premises in suit was denied in the written statement, the Additional Rent Controller found that the respondent had duly proved that he is the owner of the premises. This finding has not been assailed before him during the course of hearing of the petition. Similarly the finding of the Additional Rent Controller in the impugned judgment about the letting purpose, i.e. that the premises was let only for residential purposes, has not been challenged by the petitioner during the course of bearing of the present petition.

(5) Thus the only point in controversy is the bona fide need of the respondent of the premises in question. Shri Kanwal Narain, learned counsel for the petitioner raised the following points to challenge the order of the Additional Rent Controller:

1.the finding of the Additional Rent Controller that the son of the petitioner,namely, S.K. Kohli has been transferred to Delhi and the need of his family being considered;

2.the married daughter of the petitioner staying in the back portion of the ground floor is being dishonestly and with mala fide intention termed as a tenant;

3.accommodation on the front potion of the first floor shown by the landlord is not correct. It consists of at least three bedrooms and not Just one barsati as stated by the landlord;

4.accommodation above the garage tenant should be counted as a room available to the landlord for residence;

5.in the context of the controversy between the parties regarding first floor accommodation the trial court had appointed a Local Commissioner who had filed a report Along with a sketch plan. According to the petitioner/tenant the said report and the plan are not correct and the objections of the tenant against the said report were not duly considered or disposed of by the Additional Rent Controller;

6.it is a case of induced need and not a case of bona fide need of the respondent and, therefore, the petition ought to have been dismissed.

(6) Point (1) Regarding the transfer of the son of the respondent to Delhi it is submitted by the learned counsel for the petitioner that in the notice dated 15/9/1986 which was served on the tenant prior to filing of the present eviction petition no such case was set up. The eviction petition was filed on 12/11/1986. In the eviction petition the landlord stated that his son S.K.Kohli is under order of transfer from Bombay to Delhi. He is to join the landlord at Delhi immediately Along with his family members consisting of his wife, one son and one daughter and a servant. The said son was stated to be dependent on the respondent/landlord for purposes of residence as neither the respondent nor his son has any other accommodation in Delhi.

(7) The tenant had challenged the fact about transfer of the son of the landlord to Delhi. Lot of evidence was led by the respondent/landlord on this aspect to prove that his son stood transferred to Delhi. In his own statement as AW- 1 the landlord stated that his son S.K.Kohli was living at Bombay and he was unable to join him at Delhi for lack of accommodation. As soon as he got the possession of the premises from the tenant the son would join him at Delhi. Further in cross- examination he stated that since 1972 his son is working in M/s Hindustan Breweries and Bottling Company and till date he was working with the same firm. He added that his son had got a job in Delhi in the same firm on transfer. The transfer order was passed in 1986. AW-2 is Shri R.K.Virmani, Company Secretary of the Company in which the son of the respondent was working. He proved on record the transfer order dated 20/9/1986, EX.AW 2/1. The request of the son of the respondent for postponement of the transfer on account of the education of his children at Bombay and the transfer being during mid- session and on the ground of non-availability of accommodation in parental house is EX.AW 2/2 dated 29/9/86 and the letter of the Company in response to the said request is dated 2/12/1986 EX.AW 2/3 agreeing to postpone the transfer for the time being but directing the person concerned to make arrangements at the earliest. The said witness was specifically asked about the fact as to whether S.K.Kohli had started functioning at Delhi and the witness had replied that he already stood transferred to Delhi office. S.K. Kohli himself appeared as AW-3 and stated that he joined at Delhi as Resident Manager of the Company with effect from 25th September 1988. He further stated that he surrendered his ration card at Bombay and has got ration card prepared at Delhi at the address of property in suit. His two children had been admitted to Modern School, Barakhamba Road, Delhi and Sadhu Vaswani School, Delhi, respectively. Not only this the tenant summoned a witness from the office of the son of the respondent. The said witness was examined as RW-3. The said witness proved EX.RW 3/2 dated 29/9/1988 to the effect that the transfer of S.K. Kohli could not be further kept in abeyance by the management. By the said letter S.K.Kohli stood transferred to Delhi with effect from 1/9/1988 and he was granted time to join up to 16th September 1988 as Resident Manager. Ex.RW-3/AX is an inter office memo dated 16/11/1988 requesting S.K. Kohli to hand over possession of the company flat which he was occupying at Bombay Along with furniture, fixtures etc. EX.RW 3/AX-1 is another inter office memo signed by S.K.Kohli himself saying that he had handed over the keys of the flat Along with furniture and fixture to the company's representative. The same is dated 25/11/1988. Ex. Rw 3/1 is the annual report of the company in which the son of the petitioner was working. In the list of employees given in the said report S.K.Kohli is shown as Resident Manager which post he occupied on transfer at Delhi. The counsel for the petitioner contended that these documents filed by the employees of S.K. Kohli have been manipulated to help its own employees. I do not agree. A Limited Company will not fake its records for the sake of an employee. The suggestion on behalf of the respondent that these documents have been manipulated to support the case of the landlord cannot be accepted.

(8) EX.RW 1/AX is a certified copy of an affidavit filed by the petitioner/tenant in another petition. In the said affidavit in Sub- para (VIII) she admits that the respondent/ landlord got his grandson and grand daughter (son and daughter of S.K.Kohli) admitted in School at Delhi in the year 1988. With such clear cut evidence on record it is difficult to appreciate or accept the argument on behalf of the petitioner/tenant that the plea that the son of the respondent/landlord stood transferred to Delhi and needed accommodation to stay at Delhi Along with respondent was false or untenable. The finding of the Additional Rent Controller on the point is fully justified by the record and no fault can be found with the same. The mere fact that in the notice the requirement of the son and his family was not pleaded by the respondent is not sufficient to non-suit the respondent. At the time the notice was got served on the tenant the transfer of the son of the petitioner was not in the offing. The transfer order was issued only on 20/9/1986. The case of the respondent in his eviction petition as also in his statement is correct as per the facts prevailing on the date when the landlord appeared as a witness, i.e. November 1987. His son had not yet been actually transferred to Delhi. He joined duty only in September 1988.

(9) In the alternative the learned counsel for the petitioner/tenant argued that assuming that the son of the landlord stood transferred to Delhi, his need could not be considered since he was entitled to company accommodation. This point was just mentioned and not really pressed. It was rightly so because when the Company Secretary of the Company in which the son of the respondent was employed appeared as AW-2 not even a suggestion was put to him to find out whether any company accommodation was provided by the company to its employees in Delhi. Secondly the respondent/ landlord could still urge even if company accommodation could be provided to his son by his employers that he would like his son to stay with him in his old age and for purposes of residence the son was dependent on him.

(10) Point (2) About the married daughter of the respondent staying with him in the back portion of the ground floor of the property the objection was not really that the daughter was not entitled to stay in the property. It was conceded that she had been staying in the portion in her occupation much prior to the letting out of the premises to the petitioner herein. The only objection raised in this behalf during the hearing was that no one would consider one's own daughter as a tenant and charge rent from her and, therefore, the plea that she was a tenant was with a mala fide object of making out a case of bona fide need, in other words it was a case of induced need. I could understand an objection that why a married daughter is allowed to stay in the house and that she cannot be said to be dependent on her father for purposes of residence, but not an objection that why was she being shown as a tenant. The respondent has explained while appearing as AW-1 that he was only charging maintenance charges and taxes leviable on the property from her. Therefore, even if it was termed as a tenancy, there is nothing wrong or mala fide about it. The married daughter in the circumstances in which she was placed, her husband being employed in the merchant navy and being away from home for most part of the year, could legitimately be provided accommodation by her father in his own house. In any event the tenant has not objected to her stay. The tenant also admitted that the daughter of the landlord had been staying in the same portion since much prior to the present tenancy. The objection is regarding her being styled as a tenant. In fact a suggestion was put to the son of the landlord while he was appearing as a witness in support of the landlord's case as AW-3 that the family of his father thus consisted only of the father and the mother and a sister Along with her children. This has reference to the same married daughter of the landlord staying in the back portion of the ground floor Along with her children. This suggestion from the side of the tenant establishes that the tenant accepts that the said married daughter and her children are part of the family of the landlord and, therefore, their need for residential accommodation cannot be disputed. Therefore, there is no substance in this point.

(11) Point (3) There was lot of emphasis by the learned counsel for the petitioner/tenant on this aspect of the case. According to the tenant the landlord has suppressed from the Court the accommodation available with him in the property in suit. In support of this plea the tenant filed a site plan EX.RW 1/2. In the said site plan he has given numbers to various rooms in the property supposed to be in possession of the landlord. This plan and accommodation as per the various numbers was put to the respondent/ landlord when he appeared as a witness in support of his case. He has explained all the portions as per their numbers. There is no dispute about rooms marked Nos.1,2,4&5 on the ground floor, which are admittedly bed rooms available with the landlord including his married daughter who is residing with him in the premises. Portion marked with Sr.No.3 on the ground floor has been shown as a bedroom by the tenant in his plan EX.RW 1/2. According to the landlord this portion is only a study pooja room. This portion has been admitted to be a study by the tenant herself in Sub-para (iv) of para 3 of the application for leave to contest filed by her in the present case. The relevant portion reads as under: - "THE respondent submits that neither the petitioner nor member of his family require the premises for occupation as the petitioner is living comfortably with his wife on the ground floor which consists of more than four bedrooms, living-cum-dining room, study room, ".

THUS there is no scope for any controversy regarding the accommodation available with the landlord on the ground floor. The additional bed- room marked as Sr.No.3in the plan filed by the tenant is admittedly not a bed-room and has been wrongly shown as a bed-room by the tenant.

(12) This brings me to the controversy about the accommodation on the first floor of the property. There is no dispute about the portion under the tenancy of the petitioner herein. The controversy revolves around the front portion of the first floor. According to the tenant there are three bed-rooms marked by Sr.No&. 7,8 and 9 in this portion whereas according to the respondent/landlord there is Bo bed-room in this portion at all. As per the sanctioned plan filed on record (referred to and relied upon by both the parties, though not an exhibited document), on the front side of the first floor there is only one big room of the size of 12' X 14'. A small portion in a far corner of the said room has been shown in the sanctioned plan as a toilet. According to the landlord this entire portion is a barsati. It does not even have proper ventilation. It is being used only as a store- room. On the other hand the case of the tenant is that there were two bed-rooms here and adjacent to those rooms there was a kitchen and toilet on the terrace. Further it is stated on behalf of the tenant that there used to be a tenant in this portion. He has led oral evidence also by calling some persons who have deposed that they had seed the other tenant and one of them stated that he bad had tea with the erstwhile tenant. The learned counsel for the respondent did not dispute the fact that this portion had been earlier in occupation of a tenant who had since vacated the same. He further submitted that the alleged kitchen and toilet adjacent to this portion have no roof which is clear from the report of the, Local Commissioner who had been appointed by the Additional Rent Controller to visit the flat and make a report in order to resolve the controversy regarding this very portion. From a perusal of the report of the Local Commissioner and on the basis of submissions made on behalf of both the paretics it appears that the previous tenant had after including the portion of the toilet within the room partitioned the room into two by means of a wooden partition. The make shift toilet and kitchen had been unauthorisedly constructed adjacent to this portion on the terrace. In this connection it is worth noting that the tenant in her affidavit filed in another eviction petition between the parties, copy whereof has been exhibited in the present case as BX.RW 1/AX, daunted in para (X) that it is one room of the size of 14' X 12'. In view of this admission of the tenant herself it is not open to the tenant now to urge that this portion consists of two rooms. Actually if there had been. two rooms, the floor of the room would have tell-tale signs of removal of the puce portion wall. According to the Local Commisdoner's report there were no such signs. On the contrary there was a possibility of a wooden partition, 13. , It is also pertinent to note that the tenant has been shifting his stud regarding these two rooms. In his plan EX.RW 1/2 filed in the present petition, portion marked with Sr.No.8 is shown as one of the bedrooms. This portion in fact is a covered passage starting at the point as one reaches the first floor after taking the stairs leading thereto and leading to the open terrace on the first floor. The size of the covered passage is 10' X 3'. If a covered passage of this size can be shown as bedroom in the tenant's site plan this only shows the extent to which the tenant can go to support falsehood. The site plan Ex.RW1/2 filed by the tenant is false and is a deliberate attempt by the tenant to mislead the Court.

(13) In this context the conduct of the husband of the tenant is further exemplified by the fact that he went to the extent of writing a letter to the employers of the landlord's son. The said letter is EX.RW 3/AX2 dated 15th July 1991. The letter was written during the pendency of the present litigation and seeks information regarding S.K. Kohli (son of the landlord) about his status with the Company where he is employed, his professional background and personal conduct and whether he is "capable to handle the assignment in setting up a new brewery project". He sought this information confidentially and in order to conceal his identity only gave a Post Box No. instead of his address. During the pendency of this litigation what business he had to write such a letter to the employers of landlord's son? Was he interested in employing him? Obviously the purpose was to gather information to use against the landlord and his son. To say the least this was an act of utter impropriety on the part of the husband of the petitioner/tenant.

(14) In these facts I have no hesitation in upholding the finding of the learned Addl. Rent Controller that there is only one barsati on the first floor and the condition whereof cannot be described as a bedroom. There is no proper toilet in the front portion of the first floor.

(15) The report of the Local Commissioner shows that this portion was being used for dumping unused building material and other household articles not needed for daily use. The Local Commissioner also reported that there is no ventilation in the room. The room was completely dust laden giving an impression that it had not been cleaned for a pretty long time. He terms it as a barsati room.

(16) This rings me to the portion marked '9' in Ex.RW1/2. According to the sanctioned plan as also according to the landlord this portion is only a pergola. The pergola portion is described by the Local Commissioner as having slits in roof. The level of this portion is below the terrace level, some slits are covered with glass sheets and some are open to the sky. The Local Commissioner has also filed a rough sketch plan Along with the report to show this portion. Some of the slits which are covered with glass sheets could not be stepped upon for fear of the glass being broken. The open slits measured 11'-10" length and 7'-4" width. Some portion was covered with bricks, coal-ash and stone-dust. According to the Local Commissioner it appears that the landlord tried to construct a room in this portion. However, he could not succeed. In fact this is what the landlord has himself stated about this portion while appearing as his own witness. However, the tenant calls it is a full fledged bedroom. In BX.RW 1/2 he has marked the bedroom with Sr.No.9, as already mentioned. This aspect of his case is destroyed by his own witness RW-5. The said witness admitted that what is described as bedroom with Sr.No.'9' in plan EX.RW 1/2 on the first floor is an open terrace. The learned counsel for the petitioner/tenant tried to explain this by saying that it was subsequently that the landlord tried to convert this portion into a room. Even if that be so the landlord has stated he could not succeed in doing so. The report of the Local Commissioner clearly establishes that the condition of this portion was such that it could hardly be described as a room much less a bed room. The floor level was lower than the terrace level. The floor had various slits. This portion did not have any proper cover/ceiling. Portions were open to sky. It is not even suggested that there is any toilet around or nearby much less attached. In the face of such evidence it cannot be accepted that this portion is a bedroom. The tenant has tried to exaggerate the accommodation available with the landlord by such false pleas.

(17) The sum total of the above discussion is that on the first floor there is no accommodation available with the landlord for use as bedroom. There is only one barsati which is in no condition for use as a bedroom.

(18) Point (4) Yet another instance of the tenant falsely trying to exaggerate the availability of accommodation with the landlord is his referring the servant's quarter above the garage as a bedroom. In her plan EX.RW 1/2 the tenant has described this portion as a bedroom and given it Sr.No.6. It has come in evidence that at one stage the Private Secretary of a previous tenant stayed in this room but that does not mean that this portion can be used as a bed room by the landlord who owns the property. One cannot expect a landlord to use the servant's quarter as a bedroom for his family. The landlord in this case is a retired Deputy Secretary of the Govt. of India and is a man of status. He has servants working in the house who are staying in this portion which is a servant's quarter. In the eviction petition the landlord had pleaded the need for accommodation for his servants. In reply thereto the tenant stated in her written statement that the accommodation above the garage can be used by the servants. Thus in the pleadings the tenant admitted that this is a servant's quarter meant for use by servants. In evidence she has tried to improve her case by calling this portion as a bedroom available to the landlord. I cannot accept that room marked with Sr.No.6 in plan-Ex.RW 1/2 is a bedroom available to the landlord.

(19) Point (5) The learned counsel for the petitioner/ tenant vehemently urged that he had filed objections against the report of the Local Commissioner which had not been disposed of by the trial court. He urged that either the case be remanded for decision of the objections by the Additional Rent Controller or a Local Commissioner be appointed afresh by this Court. To test whether there was any substance in the objections of the tenant against the report of the Local Commissioner I have gone through the report of the Local Commissioner as well as the objections of the tenant regarding the same. At best the tenant has tried to show that there are some variations in the dimensions etc. as given by the Local Commissioner in his report compared to the actual position at site, This to my mind has no bearing on the substance of the controversy. Some small deviations in the measurements will not make any difference. The real issue is whether there are three bedrooms as shown by the tenant in his plan EX.RW 1/2 on the front side of the first floor of the property. As already held there is not a single bedroom in this portion. There is enough material on record to support this finding. There is neither any need to remand the case nor to appoint another Local Commissioner. The main purpose behind this request is to further drag on the matter. Another objection is that the Local Commissioner has not given the dimensions in the rough sketch plan filed by him. The dimensions are given in the report, and therefore, if they are not there in the plan that does not make any material difference nor does it cause any prejudice to the parties. I find no substance in this plea of the learned counsel for the petitioner. The objections to the report of the Local Commissioner are frivolous and are deemed to have been rejected. I have already observed that the tenant has set up a totally false case and her only intention is to drag on the matter so that she can continue to occupy the premises.

(20) Point (6) In the aforesaid facts and circumstances can it be called a case of induced need for accommodation? The answer is obviously no. The landlord has a large family. As already noted the tenant has accepted that his married daughter who is staying with the landlord Along with her children is part of his family because this is what the tenant himself suggested to the son of the tenant while he was in the witness box as AW- 3. The son of the landlord is staying with him Along with his family. It is settled law that a son even though financially independent, can be dependant for purposes of residence on his father specially when he does not own any property of his own. The family of the landlord consists of himself, his wife, a grandson aged 20 years now (son of a married daughter who is admittedly staying with the landlord since birth), his own son having a wife and two issues, now aged 22 and 20 years, a married daughter whose husband is in the merchant navy, having three children who are in their teens. This entire family has 4 bedrooms on the ground floor besides two drawing-cum-dining rooms, two kitchens, a study, toilets etc. The landlord has stated that he and his wife are strict vegetarians while his progeny is non vegetarian. On the first floor the landlord has a barsati and an open terrace besides there is a garage and a servant's quarter. The landlord has servants in his house who,occupy the servant's quarter. In view of the size of the family of the landlord and the accommodation available with him, the said accommodation cannot be said to be sufficient. I have no hesitation in holding that the landlord bonafide requires the accommodation in possession of the tenant (petitioner herein) for the needs of his family. According I find no merit in this petition and the same is dismissed, leaving the pities to bear their respective costs.