Kanta Bali vs Kalawati Devi
1995 Latest Caselaw 147 Del

JUDGMENT

Devinder Gupta, J.

(1) In this petition preferred under Section 25B(8) of the Delhi Rent Control Act (hereinafter referred to as the Act) tenant has challenged an order passed on 6.1.1993 by Shri M.K. Gupta, Additional Rent Controller, Delhi allowing the petition for eviction preferred by the respondent Kalawati Devi under Section 14(1)(e) read with Section 25B of the Act thereby ordering petitioner's eviction from a residential premises.

(2) On 22.7.1987 respondents filed a petition seeking petitioner's eviction from the first floor of the premises bearing No. 95, Banarsi Dass Estate, Timarpur, Delhi comprising of three rooms, a kitchen, verandah, bath and latrine. It was alleged that respondent No.1 was the owner landlady. Premises had been let out for residential purpose and the same were required bonafide by her and her family's requirement. She was not having any other residential accommodation available to her within Delhi or anywhere else in India. Details were given by her in para 19 of the nature and extent of requirement. She joined Virender Kumar, respondent No.2, along with her in filing the petition, alleging that though Virender Kumar had no independent right, title or interest to the premises but had been joined as such as per legal advice, in the facts and circumstances of the case and also in order to avoid any belated or hyper technical objection at a later stage. She averred that she was issueless and Virender Kumar was her sister's son. Ever since his birth, Virender kUmar had been looked after and brought up by her as her own son and had throughout resided with her. For diverse causes and reasons, formality of adoption never took place otherwise for all practical purposes Virender Kumar had always been treated and accepted not only by her but by all concerned to be her son. In this background she averred that her family comprises of herself, Virender Kumar, his wife and four children. She along with Virender Kumar and his family was residing in the ground floor where living accommodation available was only 3 rooms, store and a kitchen, which was highly insufficient and inadequate to meet the requirement of the family and, thus, she required at least double the accommodation of what was in her occupation. It was also alleged that Virender Kumar was having 1/3rd undivided share in 1/4th unspecified portion of the property bearing No.7, Lancers Road, Timarpur, Delhi and on notional partition Virender Kumar would be found entitled only to two rooms, which would not at all be suitable and sufficient for accommodating her, Virender Kumar and his family and moreover she was not willing to shift from the building in question to those premises. In other words, she stated that she requires additional accommodation in the same building in the ground floor at which she was residing.

(3) The tenant sought leave which was granted and she contested the claim of the respondents by filing her written statement. It was not disputed that respondent Kalawati Devi was the owner landlady. An objection was taken that the petition for eviction was bad for non-joinder of parties. The premises in question had jointly been let out to her and her two sons Rajan and Anil Bali, who were also co-tenants with her. Premises had been let out for residential cum commercial purposes and were being used as such right from inception of tenancy. The petition for eviction was also bad for mis-joinder of Virender Kumar who had no right, title or interest in the premises in question. Respondent's version that Virender Kumar was being treated as a son was disputed. It was stated that the requirement of Virender Kumar cannot be considered to be the respondent's requirement and moreover Virender Kumar was having separate property in Delhi. In addition it was stated that the petition was highly malafide inasmuch as the sole intention of the respondent landlady was to get the premises vacated and let out the same on higher premium since she had been letting out portions of the second floor after getting the same vacated and even in 1984 a portion, which fell vacant, was let out to Anil Sood at a monthly rent of Rs.550.00 and other two rooms on the second floor were given out at a monthly rent of Rs.900.00.

(4) The Controller allowed the petition and ordered petitioner's eviction after recording findings that the tenant had failed to prove on record that the premises were let out for residence cum commercial purposes. The version of the landlady was accepted that the premises were let out to tenant Kanta Bali for residential purpose only. It was also held that Kalawati was the owner landlady, Virender Kumar, his wife and four children were held to be dependent upon the respondent landlady for the purpose of accommodation. The respondent was not having any other suitable accommodation with her for her requirement and that her requirement was genuine and bonafide. The plea of the petitioner that Virender Kumar was having other two properties or accommodation was available therein was negatived. Kanta Bali alone was held to have been let out the premises.

(5) I have heard learned counsel for the parties and have also been taken through the entire record. The main submission of the learned counsel for the petitioner is that the petition for eviction was not maintainable since a stranger had been imploded as a party, namely, Virender Kumar who had no right, title or interest therein and the petition ought to have been dismissed on that ground. Second submission has been that the owner landlady had not appeared in the witness box to support her version. In the absence of which such a petition, where eviction had been sought for her bonafide requirement, ought to have been dismissed, since it was she who alone could have deposed as to whether the premises were or were not required for bonafide requirement or what would be her requirement for the purposes of accommodation. In addition to this a strong challenge was made against the findings of fact on a number of points. It was contended that Virender Kumar cannot be considered to be a member of the family or dependent upon the respondent for the purpose of accommodation. Virender Kumar had neither been adopted, nor can claim any right to stay with the respondent landlady. Requirement of respondent would not be requirement of Virender Kumar and in case additional accommodation was required, the same was available on the second floor, one portion of which when fell vacant was again let out in the year 1984, namely, three years prior to the filing of eviction petition.

(6) Learned counsel for the respondents has tried to meet the submissions made on behalf of the petitioner urging that even if Virender Kumar had been imploded as a party, the same will not be fatal and will not result in dismissal of a genuine cause. The mere fact that landlady had not put in appearance in the witness box also cannot be a ground for dismissal of a petition since there was sufficient evidence on record to support the findings recorded by the Controller as regards the bonafides of the respondent. Moreover findings of fact recorded were not required to be interfered with on the question of requirements of respondent which was purely a question of fact. Counsel for the parties have also placed reliance of a number of decision in support of their respective submissions.

(7) No doubt Virender Kumar was joined by respondent landlady along with her as petitioner No.2 in the eviction petition but while doing so, as codntended, by way of an abundant precaution, in para 19 of the eviction petition, it was clearly stated that his impleadment has been on a legal advice tendered and also to avoid any belated or hyper-technical objection. In case Virender Kumar is not having any interest, definitely he was neither a necessary nor a proper party to an eviction petition. Impleadment of an unnecessary party in such proceedings at the most may be termed as bad for mis-joinder of parties but that alone cannot be fatal and cannot entail dismissal of eviction petition. It is not shown or demonstrated that addition of Virender Kumar as a party had either caused any prejudice to the petitioner or in any manner affected the fair trial of proceedings. The submission that impleadment of Virender Kumar to eviction petition was fata, thus, no force and deserves rejection.

(8) Even the second submission as to the respondent landlady not stepping into the witness box has not much substance therein, more particularly in the facts and circumstances of the instant case. Learned counsel for the petitioner placed reliance upon a decision of the High Court of Bombay in Nanalal Goverdhandas & Co. and others v. Smt. Samratbai Lilachand Shah and that of a Division Bench of Orissa High Court in Chinta Narayanamma v. Kholli Sahu and others in addition to a decision of this court in Civil Revision No.955/86 - Manohar Lal v. Smt. Pushpawati Jain - (Decided on 8.2.1993). All these decisions were noticed in a later decision of this court in M.L. Khurana v. H.C. Chopra wherein it was observed that in Manohar Lal's case while analysing number of decisions it was rightly laid down that a very broad principle of law cannot be laid down that in every case where the ground of bonafide requirement is set up by a landlord, his failure to appear in the witness box should always entail drawing up of an adverse inference. There may be cases where all the ingredients of bonafides, are brought on record through the testimony of convincing witnesses like close relations, wife, husband etc. In such like cases the court may not draw adverse an inference on failure of the landlord to appear in the witness box. I fully subscribe to the view laid down in Manohar Lal's case and that of M.L. Khurana's case. In the instant case also there is no warrant to this proposition that it being a petition on the ground of bonafide requirement ought to be dismissed due to respondent landlady not appearing in the witness box. Facts of the case are such in which there is no possibility of drawing any adverse inference against the respondent. Virender Kumar appeared in witness box and fully supported the case of respondent. He even proved the sale deed and disposed on all necessary and essential requirements, which are required to be proved in a petition for eviction based on the ground of bonafide requirement. No objection was taken at that stage that Virender Kumar was not a competent witness. Virender Kumar is the son of respondent landlady's sister and as per evidence on record was brought up right from the stage of his birth by the respondent and has always resided with the respondent since respondent is admittedly a childless lady. It has not been brought to my notice that the evidence on record as regards necessary ingredient is in any manner lacking. As such the second submission also deserves to be negatived.

(9) On the third submission as regards the findings of bonafides, reference deserves to be made to the evidence on record. Virender Kumar appeared as Aw 1 who stated that respondent is his mother's sister and was of the age of 70 years. He had been brought up by the respondent from his childhood. Though he had not been formally adopted by the respondent yet he considered the respondent to be his mother. He was also married by the respondent and a ways treated by her as her own son. He along with his wife and children was staying with the respondent. After giving the extent of accommodation available in the ground floor, this witness stated that there was acute shortage of accommodation due to which additional accommodation was required, which was available in the first floor also since respondent was residing in the ground floor. He stated that though two rooms in the second floor of the building were lying vacant but the same were not suitable for their requirement and even an offer was given to the tenant to shift to the said two rooms accommodation on the top floor, which offer was still open till date. As regards his own properties, the witness deposed that he had a share in 7 Lancers Road property at Timarpur, which had since been sold out. In addition, he had a share in 93-Banarsi Dass Estate, but in the year 1977 he had already relinquished the same in favor of this brother Dharmender and Surender Kumar. The version of Virender Kumar was also supported by Mangal Sen, Aw 2, brother in law of Virender Kumar. According to him, respondent Kalawati Devi brought up Virender Kumar since his birth, who has been treated by her to be her own son. Earlier Kalawati Devi was residing with Virender Kumar in Daryaganj. Later on she shifted to the ground floor of the property in question along with Virender Kumar. Virender Kumar was got married at the instance of the respondent from the building in question. On this evidence that Virender Kumar is residing and her always resided with respondent No.1 along with his family, there is no dispute raised by the tenant petitioner in her evidence. Rather this fact stands duly admitted. The question, thus, which requires to be considered is as to whether in the background of these facts that when a person, being a close relation, (sister's son) has been residing from childhood with an aged and childless lady, who has or had with no other person to look after, whether he can be considered to be a person of the family of the landlady dependant upon her for the purpose of accommodation. This question does not pose any difficulty to answer in view of interpretation given to the word `members of family' used in the Act in a decision of the Supreme Court in Govt. of Andhra Pradesh v. Thummala Krishna Rao and another wherein it was held that word 'family' has to be given not a restricted but a wider meaning so as to include not only the head of family but all members or descendents from a common ancestor, who is actually living with the same head. In addition to this even persons who had been ordinarily living in premises will be treated, for the purposes of the Act, as `members of the family'. In case Virender Kumar, ever since from his birth resided with the respondent not only in the ground floor of building in question but also when the respondent was residing at Darya Ganj, and was brought up by her, even his marriage was performed at her instance and the fact that after marriage Virender Kumar has continued to reside with the respondent in the same premises along with his wife and four children and has always been treated by the respondent to be her son upon whom she in old age is dependant, in the light of the ratio of decision in Baldev Sahai Bangia's case (supra), the findings of the Controller that for the purpose of accommodation Virender Kumar is to be considered as members of the resposndent's family dependent upon her for the purpose of accommodation is not liable to be disturbed.

(10) There is also no scope for interference with the findings of the Controller recorded that there is no other suitable accommodation available to the respondent or even to Virender Kumar. In fact it was a petition preferred by respondent Kalawati Devi and in this petition only additional alternative accommodation, if any available to her, is to be considered. She in her petition alleged that she does not want to shift to any other accommodation but wanted to continue to reside in the same building. In view of the growing family she required additional accommodation. In the light of this in case some other accommodation was available to Virender Kumar that fact will not be a relevant factor. Moreover there is a good and plausible explanation given by Virender Kumar not only in the replication filed by the respondent but also in the evidence that there was only undivided 1/3rd share in 1/4th specified share in 7 Lancers Road, Timarpur property which, on notional partition would have made only two rooms available to him but even that share now stands sold by Virender Kumar. Explanation has also been given by Virender Kumar that whatever share he had in 93 Banarsi Dass Estate had been relinquished by him in the year 1977 in favor of his co-owners, which in these facts cannot be questioned by the petitioner.

(11) Though no arguments were addressed at the Bar on the nature of the premises but the findings of the Controller are also not capable of being interfered with that the premises were let out and have been used for residential purpose only. Petitioner's version that premises were let out to her as also to her two sons is also not proved on record. There is material contradiction in the statement of petitioner and that of her two sons, who appeared as Rw 1 (Anil Bali) and Rw 3 (Rajan Bali). It was not put to Virender Kumar, when he appeared in the witness box that at the time of creation of tenancy petitioner Kanta Bali along with her two sons had settled the terms with the respondent in presence of Virender Kumar. Three different versions have come on record in the statements of Rw 1, Rw 2 and Rw 3. According to Rw 3 he and his mother were present when tenancy was created and at that time Virender Kumar was also present. According to the petitioner Kant Bali Virender Kumar was not present but she along with Rajan Bali had a talk with the respondent. According to Anil Bali, he was also present which fact is not supported by the other two witnesses. Moreover, there is clear admission on record by three witnesses, namely, Rw 1 to Rw 3 that at the time of inducting the petitioner as a tenant, her two sons were in service and she herself was also in service. There is no supporting version on record that any commercial activity had been carried out in the premises ever since petitioner was inducted as a tenant. In view of the above there is hardly any ground to interfere with the findings of facts.

(12) Even during the course of arguments, the respondents reiterated their offer to the petitioner to shift to the two roomed accommodation on the second floor so that first floor becomes available to the respondent. In the statement of Virender Kumar he had clearly stated that respondent being aged lady it was not possible for him to shift to second floor with his family nor was it possible for him to accommodate his two small children in the second floor. Rather the only suitable accommodation for respondent's additional requirement was the accommodation available on the first floor. This offer given even during the course of arguments was not acceptable by the petitioner. It was stated on her behalf that the tenant-petitioner was not willing to shift from first to the second floor.

(13) In the result the revision, which has no force, is dismissed leaving the parties to bear their respective costs.

(14) Since the order of eviction was passed on 6.1.1993 and the same was not executable for a period of six months, which period has since expired, in the interest of justice, the tenant is granted time till 30.04.1995 to vacate the tenanted premises and put the landlady-respondent in peaceful and vacant possession subject to the petitioner filing usual undertaking in this court on her affidavit within one week from today with an advance copy to the respondents through their counsel. On failure to file such an undertaking, the landlord respondent will be at liberty to execute the order of eviction forthwith.