Rameshwar Sarup Bhatnagar vs Ram Narain Arora And Anr.
1995 Latest Caselaw 124 Del

JUDGMENT

Arun Kumar, J.

(1) This revision petition is directed against the judgment of the Addl.Rent Controller, Delhi dated 29.8.1985. By the impugned judgment the eviction petition filed by the petitioner under section 14(l)(e) read with Section 25B of the Delhi Rent Control Act (hereinafter referred to as the Act) was dismissed;

(2) Rameshwar Sarup Bhatnagar who had filed the eviction petition died on 24.7.1994 during the pendency of the present petition. His legal heirs were duly brought on record vide order dated 26.8.1994. The amended memo of parties was filed Along with the application for bringing the' legal heirs on record.

(3) Briefly stated the facts are that the tenancy premises was let out to respondent No.1 by late Shri Din Dayal Bhatnagar, father of Shri Rameshwar Sarup Bhatnagar and father-in-law of the present petitioner No.1. According to petitioner the premises was let out for residential purpose and was being used as such by respondent No.1. In terms of a Will left behind by Din Dayal Bhatnagar the entire property had devolved on Rameshwar Sarup Bhatnagar, his son, after death of Din Dayal Bhatnagar which took place on 10.8.1980. However, in order to avoid all possible objections the daughter of Din Dayal Bhatnagar, namely, Krishna Kumari Bhatnagar was also imploded as a party. She is respondent No.2in the present petition. It is the case of the petitioner that the premises under the tenancy of respondent No.1 is bona fide required for himself and his family members dependent upon him. Family of the petitioner consisted of himself, his wife, three daughters and one son. The eviction petition was filed on 27th April 1993 and at that time the ages of the children of the petitioner were between 14 years and three and half years which means that now after passage of about 12 years their ages should be between 26 years to 16 years. The petitioner had also pleaded that Shri Kishan Sarup Bhatnagar, brother of petitioner's wife had been residing with the petitioner for last more than three years having a common mess and, therefore, his requirement of accommodation should also be considered as a part of family of the petitioner. The family of the petitioner now consists of the widow of the original petitioner and four children who are in the age group of 26 years to 16 years. Besides this there Kishan Sarup Bhatnagar brother of wife of deceased Rameshwer Sarup Bhatnagar. So far as the accommodation available with the petitioners is concerned they have only ground floor of the property in dispute in their possession which consists of two rooms, one kitchen, one varandah, latrine and bath. Respondent No.1 contested the petition on the following grounds:- A)that the premises was situated in slum area and permission of the Competent Authority (Slum) had not been obtained. b) the petitioner had not been filed by all the legal heirs of Din Dayal Bhatnagar; c) the petitioner had residential accommodation available to him in house No.2772, Gali Lala Ram Roop, Sabzi Mandi,Delhi. The said accommodation consisted of three large rooms Along with kitchen, W.C. & bath on the first floor and one big living room on the second floor; d) the petitioner shifted to the premises in suit from Sabzi Mandi premises only some time before the filing of present eviction petition in order to create a ground for eviction.

(4) It will be noted that there is no dispute about the letting purpose. All the other points raised by respondent No.1 were decided in favor of the petitioner except the point regarding availability of alternative suitable residential accommodation in the shape of the tenancy premises at Sabzi Mandi, Delhi which the landlord had not disclosed in the eviction petition. It is to be noted here that the learned Addl.Rent Controller specifically held that the accommodation available with the petitioner in the property in suit was too short for the family of the petitioner even if the requirement of Kishan Sarup Bhatnagar, i.e. brother of wife of the petitioner (now brother of petitioner No.1 Asha Rani) is to be excluded.

(5) During the course of hearing of the petition the findings of the Addl.Rent Controller on the points regarding ownership and bona fide requirement of the petitioner have not been contested. The family of the petitioners consists of a widow and four grown up children. The accommodation in their possession consisting of two rooms, a kitchen, a varandah and W.C. & bath cannot be said to be sufficient even if the requirement of Kishan Sarup Bhatnagar brother of present petitioner No.1 is excluded from consideration. The accommodation available with the petitioners is too short to meet their requirement. Petitioners 2 to 5 are now all grown up and cannot be huddled together in one room or at best two rooms Along with their mother, petitioner no.1.

(6) The petition was under section 14(1)(e) and, therefore, in view of the settled position in law, permission of Competent Authority (Slum) is not required. The finding of the Adil. Rent Controller, therefore, on this point has not even been challenged. Similarly the finding on the question of ownership is unassailable in view of the material on record. As per the Will of Din Dayal Bhatnagar,Ex.AW 5/1, Rameshwar Sarup Bhatnagar the original petitioner was clearly entitled to file the eviction petition. The Will is duly proved. Attesting witnesses had appeared before the Controller. There is no one to challenge the Will. In fact the sister of the original petitioner had been imploded as a respondent in the eviction petition to avoid all possible objections. The Will had been acted upon and the property stood mutated in the name- of Rameshwar Sarup Bhatnagar in the municipal records. There is no substance in any of these objections.

(7) The only point of controversy in the present petition, therefore, is about accommodation at 2772, Gali Ram Roop, Sabzi Mandi, Delhi about which the petitioner made no disclosure in the eviction petition. The Controller dismissed the eviction petition on this ground holding that this was a mala fide act on the part of the petitioner. The eviction petition was filed on 27th April 1983. The tenant filed his affidavit for leave to defend the eviction petition in which the fact about availability of Sabzi Mandi accommodation to the petitioner was mentioned. The petitioner denied the said fact. In the written statement which was filed after leave to contest was allowed to respondent No.1 the factum about Sabzi Mandi accommodation being available to the tenant was reiterated. The petitioner again denied this in the replication filed by him to the written statement.

(8) Further facts in connection with the Sabzi Mandi accommodation which are available on the record are that the father of the petitioner, i.e. Din Dayal Bhatnagar had rented that premises from a Trust in the year 1944 and thereafter he was residing in the said premises with his 'family. Din Dayal Bhatnagar died in August 1980. Even after his death Rameshwar Sarup Bhatnagar, i.e. son of Din Dayal Bhatnagar and original petitioner in the eviction petition continued to reside in the Sabzi Mandi accommodation where his father was a tenant. Rameshwar Sarup Bhatnagar shifted from the said accommodation to the ground floor of the property in suit when the same fell vacant and became available to him some time in the year 1982. He started living with his family in this house from then onwards. It has also been brought on record by way of cross. examination of the petitioner on behalf of respondent No.1 that a notice had been served by the landlord of the Sabzi Mandi property on the petitioner to vacate the premises in the year 1981. However, the actual possession of the Sabzi Mandi property was handed over to the landlord only in March 1984 as per receipt and other documents executed by the landlord which are Ex.AW1/1 to AW1/3. These documents show that the landlord still mentioned the name of Din Dayal Bhatnagar in the rent receipt, though Din' Dayal Bhatnagar was dead long time back. This shows that the landlord was not accepting and recognising Rameshwar Sarup Bhatnagar as a tenant.

(9) The learned Addl. Rent Controller proceeded to decide the eviction petition on the basis that on the date of filing of the eviction petition as also on the date of filing of the replication the petitioner was in possession of the accommodation in the Sabzi Mandi property. The possession of the said accommodation was handed over to the landlord in March 1984, i.e. during the pendency of the eviction petition. For about two years before its actual handing over of possession the said premises remained locked and in the possession of the petitioner, since the petitioner Rameshwar Sarup Bhatnagar had shifted to the property in suit Along with his family in the year 1982 on the ground floor in the said property falling vacant. The learned Addl: Rent Controller was of the view that the petitioner suppressed this material fact from the Court and, therefore, he did not come to Court with clean hands. The petition was. thus held to be mala fide and was dismissed on this ground.

(10) Now the question is whether the eviction petition was liable to be dismissed on the ground of non-disclosure of the said Sabzi Mandi accommodation in the eviction petition or in the replication which followed the written statement of the tenant in which the plea regarding said accommodation was taken. To examine this question it is necessary to refer to the relevant statutory provision:- "SEC.14(1)(e).that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation;"

(11) As a rule it cannot be disputed that the landlord must plead all the necessary ingredients of Section 14(l)(e) of the Act in a petition under the said provision. Tenants may not be always in a position to know or find out about availability of other accommodation with their landlords. The burden to disclose must be on the landlord in the first instance. The question, however, to be considered in the present case is that can it be said that the petitioner had other reasonably suitable residential accommodation? Only thereafter the consequence of failure to disclose will be seen. The learned Additional Rent Controller without going into this question in this perspective, proceeded to decide the case merely on the basis that the petitioner suppressed the fact of availability of Sabzi Mandi accommodation to him from the Court. In the peculiar facts of the case it would have been appropriate to examine whether the said accommodation could be said to be "other reasonably suitable residential accommodation" available to the petitioner. The consequence of failure to disclose it should have been seen the light of the answer to this quetion. For this we have to turn to the facts of the case.

(12) It is not in dispute that the original petitioner was residing Along with his father in the Sabzi Mandi property. His father died in August 1980 and thereafter he shifted with his family in the said property for some time. He shifted from there Along with his family to the ground floor portion of the premises in suit on its falling vacant sometime in the year 1982 which was much before filing of the present eviction petition. The reasons for the petitioner to shift from the Sabzi Mandi property to the property in suit could many, like:- I)the property in suit is his own house and a person would like to live in his own house rather than in tenanted property; ii) the property in suit is comparatively better located; iii) the landlord of the Sabzi Mandi property had served a notice on the petitioner to vacate the premises; iv) the documents exchanged at the time of handing over of possession of the portion of Sabzi Mandi property to the landlord show that the landlord was not recognising Rameshwar Sarup Bhatnagar as a tenant after the death of Din Dayal Bhatnagar. The rent receipt issued at the stage of handing over possession still showed Din Dayal Bhatnagar as the tenant, though he was dead long ago. v) the ground floor residential accommodation in the property in suit becoming available to the petitioner was a sure ground of eviction available to the landlord of the Sabzi Mandi property.

(13) The petitioner shifted to the property in suit much before filing of the present eviction petition. This further shows that the petitioner found that the Sabzi Mandi accommodation was not reasonably suitable residential accommodation for him and his family. Secondly, in view of the notice of eviction served on the petitioner by the landlord of the Sabzi Mandi property he was under a pressure of being evicted from the said premises. Pressure to vacate has been recognised as a good ground in Mohini Suraj Bhan vs. Vinod Kumar, . In such facts can it be said to be a case where the petitioner had 'other reasonably suitable residential accommodation' and that he with mala fide intentions concealed the said accommodation from the Court. In the facts of the easel am unable to persuade myself to say that the petitioner had other reasonably suitable residential accommodation. If that is so, non- disclosure thereof cannot be said to be fatal so far in the facts of the present case. Of course, it would have been better and proper for the petitioner to disclose the said accommodation even when it was not reasonably suitable residential accommodation so far as he was concerned. Yet failure to do so' cannot be said to be intentional or mala tide in the facts and circumstances of the case. The word 'has' occurring before the words 'other reasonably suitable residential accommodation' in sub-clause (e) of section 14(1) of the Act, has also to be given its due importance. In the facts of the present case it is difficult to say that the petitioner had other reasonably suitable residential accommodation available to him.

(14) All the relevant evidence on the question is available on record. Therefore, failure to disclose the Sabzi Mandi accommodation cannot be said to be a case of lack of pleadings so as to non-suit the petitioner or to say that he was acting mala fide. Learned counsel for respondent No.1 cited Rakesh Kumar Sehgal vs. Nem Chand, 1987 (2) Rcj 571 & Hakim Misvah-ud-din vs. Abdul Shakoor,1987 (2) Rcj 294. These cases have no , bearing on the controversy in the present case, therefore, need not detain me. Another point urged by the learned counsel for respondent No.1 was that shifting to the ground floor of property in suit on the part of the petitioner itself was mala fide and was intended to create a ground for eviction of respondent No.1 from the tenancy premises. This argument is too far fetched and is totally devoid of merit. Even the Controller did not give any credence to this argument, nor do I propose to attach any weight to the same. Suffice it to say that the petitioner shifted to the premises much before the filing of the eviction petition. The ground floor in the property had fallen vacant which would have given a ground of eviction to the landlord of the Sabzi Mandi property who had already served a notice on the petitioner to vacate the said property. In these circumstances if the petitioner occupied his own house he cannot be faulted nor any mala fides can be imputed to him for this. The learned counsel for respondent No.1 argued that the notice of eviction served on the petitioner by the landlord of the Sabzi Mandi property had not been produced on record and, therefore, this fact cannot be taken note of. True that the notice is not on the record but the fact that notice of eviction had been served on the petitioner by the landlord of the Sabzi Mandi property has been brought out on the basis of cross examination of the petitioner on behalf of respondent No.1 himself. Respondent No.1 cannot be heard to say that the fact of service of notice should be ignored. If respondent No. 1 felt that the petitioner was telling a lie or no notice had been served, the cross examination could have been further pursued to demonstrate this. The cross examination on the point did not proceed further then getting the information that a notice of eviction had been served by the landlord of the Sabzi Mandi property.

(15) For the aforesaid reasons I am of the view that the Addl. Rent Controller was not correct in dismissing the present eviction petition on the ground of mala fides on account of non- disclosure of the accommodation in the Sabzi Mandi property by the petitioner in the eviction petition or the replication. In the peculiar facts of the case it cannot be said about the said accommodation that it could be covered in the phrase has no other reasonably suitable residential accommodation.

(16) The petition succeeds. I pass an order of eviction in favor of the petitioners and against respondent No. 1 directing respondent No.1 to deliver possession of the entire tenanted premises to the petitioner. In view of section 14 of the Act, respondent No.1 will be entitled to the benefit of period of six months from the date of this order and the petitioners will be entitled to obtain possession only after expiry of the said period. The petition is disposed of. No costs.