K.B. Bakaya vs Pamela Kumar
1995 Latest Caselaw 145 Del

JUDGMENT

Devinder Gupta, J.

(1) This is tenant's revision against an order passed on 3.2.1994 by Shri, Additional Rent Controller, Delhi allowing respondent's petition for eviction filed under Section 14(1)(e) of the Delhi Rent Control Act (hereinafter referred to as 'the Act') ordering petitioner's eviction from a residential premises.

(2) On 7th July, 1989 the petition for eviction was filed by the respondent landlady against the petitioner tenant seeking his eviction on the ground that the premises in question comprising 2 bed rooms, one drawing-cum-dining room, two bath rooms, a kitchen, open verandah on front as well as on back, a store and a stair case, on the ground floor in building No. G-59, Lajpat Nagar Iii, New Delhi are required bonafide by her for her residence and for the residence of the members of her family, dependent upon her for the purpose of residence. It was alleged that she was in occupation of two bed rooms, drawing-cum-dining room, a kitchen, two bath rooms in the first floor and a small barsati room on the second floor of the building, which accommodation was not sufficient for her requirements. She being a practicing advocate and a person of status and her husband being a corporate personal manager in a public limited company required separate drawing cum dining room. In addition petitioner required a personal office as an advocate and a separate room for her library. One bed room was required by her and her husband. One bed room for her son, who was aged about 16 years at the time of filing the petition. The son also required one room for study and another room for installation of a computer. In addition to these it was alleged that one room was required for a servant, one room as a store and one room for guests. Respondent claimed that she had no other reasonably suitable accommodation available for her. Thus, the tenant's eviction was sought for her bonafide requirements. The tenant sought leave, which was granted and in his reply disputed vehemently the grounds as alleged by the landlady. It was alleged that the need was highly exaggarated. Neither the respondent was a practicing advocate, nor her requirement was to the extent, as had been projected by her. She was comfortably staying in the first floor of the building which was also suitable for her and other members of the family. Petitioner challenged the main ability of the petition alleging that premises were not residential since the same were also being used by him for commercial purposes. Malafides were imputed in seeking his eviction on the ground that the respondent had concealed the accommodation available with her. She was desperately seeking petitioner's eviction with a view to let out the premises on higher rent or to coerce the petitioner to agree to pay higher rent. Another ground urged was that the petition was not maintainable since eviction had been sought from a part of the tenanted premises. He was also in enjoyment of the open front lawn on the ground floor from which eviction had not been sought.

(3) The Controller accepted the respondent's version that the premises were required bonafide by her for her own use and occupation. It was also held that the premises were let out for residential purpose and the petition was not bad for partial eviction rather eviction had been sought for the entire tenanted premises. It is this order which is under challenge by the tenant.

(4) I have heard learned counsel for the parties and gone through the record. Learned counsel for the petitioner has vehemently urged that the front open court yard on the ground floor was a part and parcel of the tenanted premises. There was an admission on the part of the respondent that complete ground floor had been let out, which imply that open court yard is appurtenant to the tenanted premises and, thus, the petition was bad for partial eviction. The other ground urged is that the personal necessity urged by the respondent was highly exaggerated and fanciful. In addition to the alleged requirement of family members, even need of the guests and servants has been projected as a ground for seeking tenant's eviction. Findings of the Controller that the landlady was not in occupation of sufficient accommodation or required additional accommodation are contrary to record and bad in law which are liable to be reversed.

(5) Learned counsel for the respondent has, on the other hand, urged that keeping in view the status and standard of the respondent, there is no exaggeration in so far as the need for the purpose of additional accommodation is concerned. Relevant facts have been duly considered by the Additional Rent Controller and since the order is based on the material on record, no interference is called for by this court in exercise of its revisional jurisdiction. It was also urged that though the evidence on record is to the effect that the open front lawn in the ground floor is being jointly used by the respondent with tenant but the same is not a part and parcel of the tenancy. The mere fact that in addition to the tenanted premises, which is only a covered area, the tenant has been using the open court yard along with the landlady. This fact alone will not make the same to be a part of the tenanted premises.

(6) The Additional Rent Controller on discussion of entire evidence has recorded his findings separately on each necessary ingredient required to be proved by the owner-landlady while seeking eviction of a tenant on the ground of bonafide use and occupation, as postulated in Section 14(1)(e) of the Act. The respondent has been held to be the owner ofpremises. Reliance is placed on the sale deed, copy of which has been duly proved on record as Ext. Aw 5/2. On the question of the purpose of letting, in the light of the recitals in the lease agreement Ext. A/5/1, wherein purpose of letting was stated to be residential only and also on placing reliance on the record of Land and Development Office to the effect that the lease of land is only for residential purpose, it has been held that the premises in question were let out for residential purpose and were being in fact used for residential purposes only. On these two points no challenge was made on behalf of the petitioner during course of arguments. The only challenge against the impugned order is as regards the third point, namely, bonafides of the respondent in seeking eviction of the petitioner, which includes the requirement of the respondent for additional accommodation. On this point the Additional Rent Controller found that the accommodation on the first floor in occupation of the respondent landlady is highly insufficient to meet her requirement and the requirement of her family members dependent upon her for the purpose of accommodation. Taking into consideration the status of the respondent-landlady and the extent of family members it was held that the additional accommodation in occupation of the petitioner is the only suitable accommodation to which the respondent is entitled.

(7) The question whether the requirement is bonafide or not is essentially one of fact, notwithstanding the circumstance that a finding of fact in that behalf is a secondary and inferential fact drawn from on other primary or perspective ones. All conclusions drawn from primary facts are not necessarily questions of law. There can be, and quite often are, pure questions of fact. The question as to bonafide requirement is one such question. For this proposition reliance was placed by the learned counsel for the respondent on a decision of apex court in Ram Dass v. Ishwar Chander and others and it was contended that the findings of fact as recorded in this case by the Controller are based on the evidence and material available on the record from which no other view is possible than the one arrived by the Controller. Such findings of fact are not liable to be interfered with by this court in exercise of its revisional jurisdiction under Section 25B of the Act. The question that the power of revision under the Act does not entitle this court to enter into the merits of factual controversies between the parties and to reverse a finding of fact in that regard is not at all and cannot be disputed. In Hira Lal Kapuyr v. Prabhu Choudhary it was held that under Section 25B(8) of the Act the powers of the High Court are somewhat wider than similar powers of revision under Section 115 of the Code of Civil Procedure but that power of revision under the Act does not entitle High Court to enter into merits of factual controversies between the parties and reverse a finding of fact. It is on the basis of this principle that the arguments advanced at the Bar deserves to be considered in the light of findings as also material on record. Another basic factor which will have to be kept in view is that whether the need of the respondent is genuine and honest, conceived in good faith.

(8) Respondent purchased the premises in question on 20.2.1980. Her family admittedly consists of herself, her husband and one son. While filing this petition on 7.7.1989 she averred that she required the premises bonafide for her residence and residence of members of her family dependent upon her. She averred that for herself she required one room as office of an advocate, one room as lawyer's library since she was a practicing advocate, a separate drawing and dining room and one bed room for herself and her husband; one personal office for her husband since he was a corporate personal manager. For son one bed room, one study room and another room for installation of a computer. In addition to this, one servant room one store and one guest room were also her requirements. While giving these requirements she narrated details of each and every aspect as to why she was in need of such additional accommodation. The accommodation in her possession on the first floor consists of two bed rooms, a drawing cum dining room, a kitchen with two bath rooms and a small barsati room on second floor. The petitioner examined Aw 3, an official from the Bar Council of Delhi, to prove that she was registered as an advocate with Bar Council of Delhi since 1989. Aw 4 Shri Krishan Jaswal, Accountant, Apj School, Sheikh Sarai Part I, New Delhi, was examined to prove that her son Master Atulay Kumar was a student of 11th class and was having computer science as an elective subject. She herself appeared as Aw 5 and supported her version as contained in the eviction petition. She stated that her family consisted of herself, her husband and an adult son. She had a maid servant who was also dependent upon her for the purpose of accommodation. The maid servant was having her husband and two children. Guests also visited the house occasionally, including her surrogate mother, mother in law, her married cousin sister. She stated that her husband was employed as Assistant Vice President in India Telecom Ltd. Frequently there were visitors in the premises from the office of her husband as well as from Hrd Net Work Delhi Chapter of which her husband was the President. Meetings of Hrd Network are held in her house. Her husband has to treat and entertain his business relations for which one room was required by her husband for study and office and one for entertaining guests. Her son was a computer freak and in addition to one bed room, a room was required where he had to install a computer. She being a precising advocate required a room for her office and a room for library. Aw 6, R.R. Nagpal, Architect and Civil Surveyor, was examined to prove the plan of the premises. Shri Hemant Kumar, husband of the petitioner appeared as Aw 7 and stated that he was earlier an executive in corporate sector. He had re signed by the time his statement came to be recorded in Court. On the date of his statement he was working as a Management Consultant. His office as Management Consultant was in Greater Kailash and he required addi tional accommodation. He gave details of his requirements as also requirements of her wife, namely, the respondent landlady. To rebut the overwhelming evidence adduced by the landlady, the petitioner examined himself and stated that he was a tenant in the premises since 1964. Accommodation available with the respondent was sufficient for herself and her family members. After purchase of the property by the respondent, his relations with the respondent were not cordial as she had been harassing him for which complaint had been lodged with the police. He did not dispute the number of the family members as stated by the respondent.

(9) As regards status of respondent-landlady there is no dispute on behalf of the petitioner and there cannot be any in view of the evidence on record. According to the respondent she is not only a practicing advocate but also owns besides this property, a basement in Nehru Place, Delhi which was a business premises in occupation of Fertilizer Corporation of India. She was an income tax payee. Keeping in view the fact that she was an advocate and her husband in corporate sector, servant is a necessity. Accommodation for servant is also required.

(10) In the light of this evidence there is hardly any scope for interference in the findings of fact and the argument of the learned counsel for the petitioner that need was highly exaggerated also requires to be rejected. It is a case where a landlord had come up in seeking tenant's eviction for bonafide requirement for her residence and for residence of other family members, requirement included living accommodation and separate offices for herself and her husband and library room for her. The fact that two rooms have to be used as office by her and her husband and a room for her for the purpose of library which is one of the essentials for a practicing advocate, the same cannot be considered as extraneous to the scope and content of sub clause (e) of proviso to section 14(1) of the Act. In Hira Lal Kapur's case (supra) the apex court held that where a landlord applies for possession of residential premises his bonafide requirements of premises for his residential purpose shall not stand vitiated merely because he intends to use a portion of the premises for purposes of office library or study. In such like cases where eviction is sought on the ground of bonafide requirement, the court has to examine the question that the need of the landlord is genuine and honest. `Requirement' in law must have an objective element of a `need'. In Ram Dass's case it was held that: "STATUTES enacted to afford protection to tenants from eviction on the basis of contractual rights of the parties make the resumption of possession by the landlord subject to the satisfaction of certain statutory conditions. One of them is the bona fide requirement of the landlord, variously described in the statutes as "bona fide requirement", "reasonable requirement", "bona fide and reasonable requirement" or, as in the case of the present statute, merely referred to as "landlord requires for his own use". But the essential idea basic to all such cases is that the need of the landlord should be genuine and honest, conceived in good faith; and that, further, the court must also consider it reasonable to gratify that need. Landlord's desire for possession, however honest it might otherwise be, has inevitably a subjective element in it and that, that desire to become a "requirement" in law must have the objective element of a "need". It must also be such that the court considers it reasonable and, therefore, eligible to be gratified. In doing so, the court must take all relevant circumstances into consideration so that the protection afforded by law to the tenant is not rendered merely illusory or whittled down."

(11) The accommodation available with the respondent admitted is not such with which the requirements for additional accommodation can be met. There are only two bed rooms and a drawing cum dining room in first floor and a Barsati room on second floor. The respondent cannot be expected to convert the bed rooms in office or library room, where she has to have consultation with clients. Thus, these findings on requirement are not liable to be interfered with. No circumstance has been brought to the notice due to which genuineness of the respondent's claim might be doubted that it is not honest.

(12) On the point of petition being bad for partial eviction, there is no substance in the submission made on behalf of the petitioner. The premises which were let out are fully described in lease agreement Ext. Aw 5/1. Front lawn is not a part of the tenanted premises. Mere use of the front lawn by the tenant will also not make it to be a part of the tenanted portion.

(13) Without going into other aspects of the case which had been argued on behalf of the respondent that due to passage of time, requirement of respondent has increased further,namely, in addition to one servant respondent is having one more servant and the son has also grown up, there is no legal infirmity in the findings recorded by the Controller that the premises are required by the respondent for her requirement. Revision, which has no force, is hereby dismissed leaving parties to bear their own costs.