Sushil Kumar Rastogi vs G.N. Sharma
1997 Latest Caselaw 688 Del

JUDGMENT

Usha Mehra, J.

(1) Petitioner is a tenant in respect of back portion of ground floor portion of House No. Y-46, Hauz Khas, New Delhi. He was inducted as tenant in July, 1984 in the said portion of the house consisting of one drawing-cum-dining room, one living room, one kitchen, pantry Wc and verandah. Respondent herein is the landlord/owner of the premises in question. Respondent filed a petition for eviction against the petitioner on the ground of bona fide requirement under Section 14(I)(e) of the Delhi Control Act (in short the Act). The respondent had sought eviction on the ground that he required the premises for himself and his family. That the first floor of the house in question was in occupation of his son and his family. Part of ground floor in occupation of the petitioner, the front portion of ground floor in his possession was not sufficient for his needs. Respondent landlord, an aged person, his wife about 65 years old. Beside his widow daughter and her family was dependent upon him for the purpose of residence. Thus he required additional accommodation which he did not have. Respondent had retired from a high post from the Ministry of Finance. He was joint Secretary in the State Industrial Development Corporation of India. He started doing the consultancy job. He was in the habit of living in a better life-style. Because of non-availability of a separate room he was forced to use his bed room for consultancy. Since he was not having regular room he felt it difficult to carry on his work. The widow daughter had also been living with him with her family. Her son a school going child also requires room for study. His other married daughter also visits him and stays with him. His son who has settled in America visits and stays with him. Therefore, accommodation in his possession was not sufficient to accommodate all of them.

(2) Leave to contest was granted. Written statement was filed. In the written statement for the first time the petitioner took the ground that partial eviction had been sought and, therefore, the petition for eviction was liable to be dismissed. According to him beside one room, kitchen also formed part of the tenanted premises. Since eviction has been sought only of the room, therefore, petition was bad in law. This petitioner denied that the need of the respondent/landlord was bona fide. According to him respondent's son Ravinder Kumar and his family had been residing in Gurgaon. The first floor of the premises in question was not in occupation of respondent's son. On these pleadings parties adduced their evidence. By the impugned order the learned Additional Rent Controller (in short the ARC) accepted the petition and granted decree of eviction holding that the need of the landlord was bona fide.

(3) The main grievance of the petitioner against the impugned order as urged by Mr. K.R. Chawla is that the Court below did not take into consideration properly the partial eviction sought, and that the son of the respondent whom he alleged in occupation of the first floor was in fact residing at Gurgaon. Therefore, on both these counts petition should have been dismissed. According to Mr. K.R. Chawla, the learned Arc fell in error in concluding that the kitchen never formed part of the tenancy or that Ravinder Kumar son of the landlord had been residing on the first floor of the premises in question.

(4) I have heard Mr. K.R. Chawla for the petitioner and Mr. H.K. Sharma for the respondent and perused the pleadings and the evidence adduced. At the outset it must be mentioned that in the leave to defend application this petitioner never pointed out that the kitchen formed part of the tenancy. Even in the rent receipts executed between the parties and as admitted by the present petitioner Ex. A5 to Ex. A7 dated 21st July, 1984, 31st August, 1987 and 1st August, 1987 no mention is made that the kitchen formed part of the tenancy. Perusal of the last rent receipt dated 1st August, 1988, Ex. A7, is a clear pointer to the fact that had the kitchen formed part of the tenancy, it would have find mention in this receipt. Whereas perusal of the rent receipt Ex. A7 shows that tenancy consisted of only one room. The sanctioned plan of the property which was proved by the respondent as Ex. A4 also shows that in the tenanted portion, kitchen was not sanctioned. In his defense this petitioner could only say that the kitchen being temporary and constructed unauthorisedly hence it did not find mention in Ex. A4 and similarly, in rent receipts. This plea was taken for the first time in the written statement. It did not find mention in the leave to defend affidavit hence rightly rejected by the Trial Court. This petitioner had filed a Civil Suit seeking injunction against the present respondent. Copy of the plaint was proved on record as Ex. Rw 2/A1. A perusal of Ex. Rw 2/A1 proves the fallacy in the argument of Mr. K.R. Chawla. If the kitchen had formed part of the tenancy then while seeking the injunction petitioner must have mentioned about the kitchen as part of the tenancy. But the perusal of Ex. Rw 2/A1 shows that kitchen was not mentioned at all as forming part of tenancy. Contention of Mr. Chawla that in the amended plaint mention of kitchen was made, to my mind, is of no consequence. The learned Arc rightly observed that non mentioning of the kitchen in the original plaint shows the true picture at site. Nobody can forget the description of the tenanted premises. The very fact that when he filed the suit he did not mention the existence of a kitchen, it shows that the kitchen never existed at the time when the original suit was filed. It was for the first time before the Appellate Court that he sought amendment of the plaint in order to incorporate kitchen. Taking Ex. A5 to A7 i.e. rent receipts, sanctioned plan of the building Ex. A4 read with original plaint Ex. Public Witness 2/A1 and the leave to contest application into consideration the only irresistible conclusion which can be drawn is that the tenancy consisted of only one room. That is the reason the alleged temporary kitchen never find mention in any of these documents. For this reason I find no infirmity in the conclusion arrived at by the Trial Court.

(5) So far as the question of ownership is concerned that is not in dispute nor the purpose of letting.

(6) Now turning to the second limb of Mr. Chawla's arguments that the need of the respondent was not bona fide, to strengthen this argument Mr. Chawla contented that the first floor was not in occupation of respondent's son Ravinder Kumar and his family. It must be mentioned here that Ravinder Kumar, son of the present respondent was examined by this petitioner as his own witness as Rw 1. So far as respondent is concerned he appearing as his own witness testified that the first floor of the premises in question had been in occupation of his son and his family. He further testified that the members of his family dependent upon him also needed additional accommodation. Beside he needed the premises for consultancy purpose. He had not examined his son Ravinder Kumar. It was the present petitioner who examined Mr. Ravinder Kumar. The petitioner never asked Mr. Ravinder about his owning a house No. 461, Sector-14, Gurgaon, with his wife or that he with his family was residing in the said house. Not even a suggestion of this kind was put to him in the examination-in-chief. When subjected to cross-examination Mr. Ravinder, Rw 1 proved his passport, driving licence, telephone bill as well as ration card Ex. A8 bearing the address of the premises in question. He corroborated the assertion of his father that he had been residing with his family on the first floor of this house continuously since 1982. He never left or vacated the 1st floor of the premises in question. Therefore, so far as the question that Ravinder, son of the respondent, owned a house jointly with his wife in Gurgaon it, was not proved. On the basis of evidence available on record petitioner miserably failed to prove that Ravinder and his family were not occupying the first floor. On the contrary from Exhibit A8 i.e. Ration Card it is apparent that Mr. Ravinder with his family had been residing on the first floor of this house and had been drawing ration from this area ever since 1982 onwards. His driving licence, telephone bills also corroborate that he had been residing in this house. To arrive at this conclusion one can rely on the documentary evidence available on record. This petitioner appearing as Rw 2 nowhere stated that the house in Gurgaon was owned by Ravinder Kumar either along or jointly with his wife. In view of the evidence available on record the reasoning given by the learned Arc cannot be rejected nor it faulted in any manner. Since the present petitioner took chance in producing the landlord's son as his own witness, he is bound by the version given by the witness. To Mr. Ravinder he never put any question about the bona fide requirement of his father or of his not living in the premises in question on the first floor. Since admitted facts are that the respondent an aged person with his 65 years old wife are occupying only one room on the ground floor, and his widow daughter dependent upon him for the purpose of residence with her school-going son also reside with him, the accommodation with him cannot be called sufficient. In one room the widow daughter with her child and the old couple cannot be forced to live. Keeping in view the financial and family status of the respondent it is apparent that he requires at least two to three bed rooms. One for himself and his wife, one for his widow daughter and her son, one for study and his work and for guests. Keeping these factors into consideration and the facts considered by the learned Arc no fault can be found in the reasoning given by the Trial Court.

(7) For the reasons stated above I find no merit in the petition. Dismissed.