United India Insurance Co. Ltd. vs Sarla Ahuja
1998 Latest Caselaw 309 Del

JUDGMENT

Case Note:

Delhi Rent Control Act, 1958 - Section 14(1) (e)--Bonafide requirement--Change in circumstance--Death of husband of landlady for whose branch office the premises was originally required--The landlady claiming the premises expressing her intention to live in the premises--The requirement held to be not bonafide.

Manmohan Sarin, J.

1. Petitioner tenant by this revision petition is challenging the order of eviction dated 24.1.1997, passed by the learned Additional Rent Controller, on the ground of bonafide need, under Section 14(1)(e) of the Delhi Rent Control Act (hereinafter referred to as the 'Act'), in respect of premises bearing Municipal No.C-211/B, Greater Kailash, New Delhi.

2. The main plank of petitioner's submission is that order of eviction could not have been passed, since the main ground, on which eviction had been sought, ceased to exist and there was a total change of circumstances, resulting in the cause of action, as given in the petition, becoming non-existent.

3. Facts in brief, as stated in the pleadings, may be noted, to appreciate the petitioner's contention:

i. Respondent landlady, in April 1991, filed a petition for eviction of the respondent On the ground of bonafide requirement on the following averments. Respondent's husband and son were Patent and Trade Mark Attorneys, having head- office at Calcutta. A branch office at Cottage No.4A, West Patel Nagar, New Delhi was opened. Accordingly, it was claimed that she and her husband shifted their residence from Calcutta to Delhi.

ii. The premises in suit had been let out for residential purposes and the same were bonafide required by her for residence for herself and her dependent members. Respondent aged about 63 years, was suffering from cervical spondilysis, arthrIT is in both knees. She was also having hypertension. Late Mr. D.P. Ahuja, husband of the landlady, was then about 66 years of age, was not keeping good health. She and her husband had been

advised to shift to a hot and dry climate in Delhi and to avoid climbing stairs. The accommodation then available to them at Calcutta was on the 3rd floor, without lift. Her husband was attending to various cases of his firm before the Trade Mark, Patent and Design authorities at New Delhi as well as the High Court of Delhi. Due to extension of business and professional activities, she and her husband had shifted to Delhi.

iii. In the written statement, petitioner/ tenant denied the factum of the landlady's husband and son having extended their business to Delhi or opening of a branch office at Delhi. The shifting of residence to Delhi was denied. Petitioner and her family members were stated to be comfortably settled in Calcutta. Besides, the written statement was of a general denial of the averments in the Petition.

iv. Pleadings were completed and evidence was led by the respondent/landlady as well as the petitioner/tenant. The respondent landlady was examined on Commission in Calcutta. Husband of Respondent, Shri Deshpal Ahuja, unfortunately, in the meanwhile, had expired on 13.3.1996.

4. The ownership has not been disputed before me and the challenge in this petition is confined to the bonafide requirement of the petitioner. The petitioner also, feebly attempted to urge that premises were covered under the Public Premises(Eviction of Unauthorized Occupants) Act, but did not press this plea.

5. Learned counsel for the petitioner urged before me that the respondent landlady had failed to prove the factum of her shifting to the Cottage at West Patel nagar, New Delhi or to Delhi itself. The respondent deposed that she and her late husband used to stay in hotels in Delhi. There was no office of the firm functioning at Delhi.

6. The submission of Mr. Keshav Dayal is that the cause of action, as given in the eviction petition, had become extinct and there is no bonafide requirement of the respondent/landlady for the premises in suit. The respondent/landlady and her family were comfortably settled in Calcutta. Respondent's son did not appear as a witness or depose that he would reside with the respondent/landlady in the premises in suit in Delhi. An adverse inference ought to be drawn from his non- appearance. In any case, the visits of the respondent's son were few and occasional. Similarly, it was urged that respondent's daughter, who is presently residing in Noida with her husband, did not appear to depose that in case her mother shifted to Delhi, she would live with her in Delhi.

7. The learned Rent Controller passed the order of eviction holding that from the totality of evidence it was established that the family of the respondent landlady needs accommodation in Delhi for residence, whenever the son of the respondent comes to attend to the work of the firm in different courts and before different authorities. The learned Rent Controller also believed the respondent that she wished to live in the house in Delhi, where her daughter, living in Noida, could come and stay with her He, therefore, held that the premises in suit were bonafide required by the landlady and her son, who comes to look after the work of the firm at Delhi, for residence. It was held that the respondent landlady had no other reasonable accommodation in Delhi. He also held that a case of bonafide necessity was established.

8. Mr. Ishwar Sahai, learned senior counsel for the respondent, has supported the impugned order. He has also submitted that the landlady was the best judge of her own requirements and relies on the judgment in Meenal Eknath v. Traders & Agencies and Anr. . Learned counsel urged that petitioner had set up a false case of complete denial in the written statement. The need of the landlady to reside in the premises in suit remained even after the death of her husband. The business of D.P. Ahuja & Sons has continued, necessitating the presence of respondent's son in Delhi to attend to work. Learned counsel submitted that the hotel bills had been produced before the learned Rent Controller together with the list of cases, which had to be attended to and, therefore, there was need for residence in Delhi of the respondent and her family members, viz. her son. It did not matter that the son's need for residence arose from the necessity of attending to business. Learned counsel submitted that the landlady had clearly deposed of her wish to live in Delhi after the death of her husband. She had stated that her daughter, who is living in Noida, would come to live with her. Besides his son, who has often to come to Delhi, would live with her on his visits. Learned counsel further submitted that the deposition of the respondent landlady that the premises were required by her for business is sought to be interpreted out of context and had to be understood in the light of need for residence at Delhi, arising from business. The respondent had stated that she wanted to reside in her house in Delhi. The requirement is her and if the circumstances change she is not required to again say that she will reside there.

9. Learned counsel for the respondent landlady in support of his contention that the landlord was the best judge of his residential requirement relied on the judgment in case Prativa Devi (Smt.) v. T.V. Krishnan and Meenal Eknath Kshirsagar (Mrs.) v. Traders & Agencies and Anr. . Learned counsel also placed reliance on the judgment in Deepak Arora v. S.N. Sehgal and Ors. (1995 RLR 219). We shall advert to these judgments later.

10. Learned counsel submitted that the Rent Controller, in a well-reasoned, judgment, on appreciation of evidence, held that the premises in suit were required bonafide by the landlady and the said finding should not be disturbed in revision petition. There were no malafides alleged against the respondent and in any case, the petitioner had the protection of Section 19 of the Delhi Rent Control Act in so far as the allegation of re-letting and resale of premises in suit was concerned.

11. It would be recalled that the eviction petition had been filed claiming that respondent's late husband had established a branch office in Delhi to look after his trade marks and patents work and, therefore, respondent was to accompany her husband for residence in Delhi. The whole cause of action was based on the need of the respondent landlady arising from her husband's requirement of opening the branch office and residing in Delhi to look after the business interests. After the death of respondent's husband the eviction petition was not amended. However, the learned Additional Rent controller took note of subsequent events. In these peculiar circumstances, therefore, it becomes necessary to see whether the respondent had made out a case justifying her bonafide requirement after the death of her husband. It is in this context that respondent's deposition and evidence led on her behalf is material and determinative of her case for bonafide need of the respondent landlady.

12. The landlady's deposition: is to the effect that respondent/landlady does not have any other house in Delhi and Whenever she or her husband came to Delhi, they used to stay in a hotel. The name of her husband's and her son's firm was D.P. Ahuja & Co. and they were carrying on their business from their Head Office at Calcutta and branch offices at Bangalore, Madras and Ahmedabad. She deposed that the hotels in Delhi were expensive. She stated that Delhi would be convenient to her since her house was a single- storeyed one on the ground floor. She also deposed in her examination-in-chief that "if the suit premises are vacated, my daughter may live in the same. In case the suit premises are vacated, I and my son would live in the said house."

13. In her cross-examination, she admitted that she was living in the house at Calcutta for the last three years and prior to that she lived at 34/1, Ballygunge, Circular Road, Calcutta, for 14 years. She also admitted that her son was working at Calcutta and the grandson was admitted to School in Calcutta and the daughter-in-law was a housewife. The father-in-law of the son was living in Calcutta. She also admitted that she had gone to Delhi for the last time in February 1996 and lived there only for a day. Her medical treatment was being done at Calcutta and that she had not been treated at Delhi. She only stated that "I went to get myself checked up for my eyes at Jeevan Hospital in Delhi. It is correct that I am living at Calcutta at present. Prior to the death of my husband I used to go with my husband to Delhi for business purposes. After the death of my husband my son alone is looking after the business of D.P. Ahuja & Co. He has employed some officers. M/s.D.P. Ahuja & Co. had no office at Delhi. I did not take any house on rent at Delhi as there was no need. We used to stay in hotel. Neither she nor her husband had a house in Delhi." She also admitted in her deposition that the house in Calcutta was a three bedroom house with drawing-dining and that one bedroom was used by her and the other by her son and his wife and one bedroom was kept for her daughters who used to come and stay. She also admitted that all her belongings and those of her son were lying at Calcutta. She also admitted that "It is correct that the suit premises are required for the business of my son. He will carry on business therein. It is correct that I am living at Calcutta comfortably. I may or may not reside in the house at Delhi. Again said: In case the said house is vacated, I would reside therein."

14. On a perusal of the pleadings and evidence, I find that the whole cause of action in the petition as based on the need of the respondent landlady arising from her husband.'s requirement of opening the branch office and residing in Delhi for business purposes. It was only when respondent's husband, who was to carry on the business, was alive the respondent could urge the ground of wanting to live with her husband in Delhi in the suit premises. Assuming that an office had been set up in Delhi, there was none functioning presently, as admittedly by the employee of M/s.D.P. Ahuja & Co. Respondent/landlady is, admittedly residing in Calcutta with her son, daughter-in-law and grandson. The relations of the landlady with her son and daughter-in-law are cordial It is also admitted that the respondent is residing comfortably at Calcutta. It is the admitted position that respondent's family is settled in Calcutta for long. Her son was married in Calcutta arid his in-laws are also residing there Respondent/landlady, who were earlier residing at 81/1, Ballygunge, Circular Road, Calcutta, had shifted to 18/2, Ballygunge, Circular Road, Calcutta, which premises, have a lift. Hence, the alleged knee problem faced by the landlady, would not be a disability.

15. Respondent landlady has two daughters, who are happily married and well-settled. One is living in Noida and the other at Bangalore. The landlady herself is well- settled in Calcutta. It is in this context that the assertion of the landlady of wanting to reside in the premises in suit in Delhi alongwith her daughter has to be considered. In these facts, landlady's daughter/ son-in-law should have been examined to show that they are willing to leave their own establishment to come and stay with the landlady.

16. The respondent/landlady has also not deposed anything with regard to the frequency of her visits or her late husband's visits or her sons visits to Delhi. In fact, her relation, AW/3, Harbans Lal, stated that she last visited Delhi in the end of 1995 or beginning of 1996 and stayed for a night or so. She was not accompanied by her husband or son and that the respondent/landlady had been staying in Calcutta with her husband all along. She had not stayed in Delhi for more than 2/3 days. Even in her own evidence she simply stated that whenever she went to Delhi she faced difficulty in staying in hotels in Delhi, which were found to be expensive. Her deposition, as noted earlier, is that if the suit premises are vacated, her daughter may live in the same. Similarly, that her son would also live in the said house. In the instant case, the respondent/landlady had not pleaded or set up the case of wanting to live in Delhi, where some of her relations are staying. It is not the case that the respondent/landlady is looking after the business of her late husband and son, for which she wants to reside in Delhi. It is also not the landlady's case that she has discussed the matter with her daughter and son-in-law who have agreed to leave their residence in Noida and reside with her. In fact, the landlady's own statement is vague and full of doubts, in as much as, she says, "If the suit premises are vacated, my daughter may live in the same." The failure to examine her daughter and son-in-law in this case is significant and in the absence of their examination the landlady's claim that her married daughter may stay with her does not deserve acceptance. As regards the son's need for the premises in suit, except for filing list of twenty cases or so, which were pending at that time and few entries of debit in credit cards for hotel stay of a day or so, nothing else has been stated or proved.

17. The need of the son for premises in suit stems out of the alleged business requirement of attending to the pending cases at Delhi and wanting to avail of the premises in suit for residence during his visits. It is not the respondent's case or her son's case that the respondent's son has decided to shift to Delhi and, therefore, reside in Delhi and to attend to business. The requirement for residence is only during his visits to Delhi. Here also the respondent's son has failed to appear in the witness box and categorically state either the frequency of his visits or the duration of his visits to make out a case for bonafide requirement of the premises in suit for residence. It may also be observed that normally such visits and stay of attorneys are at the expense of the clients. Moreover, hotels are found to be more convenient for conferences and stay.

18. Learned counsel for the respondent landlady, as noted earlier, relied on Meenal Eknath Kshirsagar v. Traders & Agencies (Supra) and Prativa Devi v. T.V. Krishnan (Supra) in support of his contention that it was for the landlord to decide how and in what manner he should live and he is, the best judge of his residential requirements. If the landlord wants to beneficially enjoy his own property when the other property, occupied by him as a tenant or on any other basis, is either insecure or inconvenient, it is not for the Courts to dictate to him to continue to occupy such premises.

19. In Prativa Devi v. T.V. Krishnan (Supra), the landlord had sought eviction of the tenant on the ground that she did not have any alternate accommodation and was staying with a family friend since the death of her husband and, as such, she required the premises bonafide for her residential use. The learned Rent Control Tribunal had allowed the petition but this Court, in revision, had reversed the finding, holding that the landlady being an old lady of 70 years and having no one to look after, would continue to stay with her family friend. The Apex Court reversed the order of the High Court and made the observations, earlier noted, with regard to the landlord being the best judge of his residential requirements. The Apex Court also observed that, "the Court has to consider not merely whether such other accommodation is available but also whether the landlord has a right to such accommodation."

20. Meenal Eknath Kshirsagar v. Traders & Agencies (Supra) was a case where the landlady had filed a suit for eviction on the ground that she bonafide required the premises. The tenant had taken the plea that the landlady had suppressed material facts in not disclosing that her husband's firm had taken a flat on lease, which was available to the landlady's husband. It was found on facts that the flat which was sought to be taken on lease by the husband's firm was only temporarily available to the landlady's husband in the absence of the partner of the firm, by whom the flat was taken and who had gone to Delhi The flat alleged to be in landlady's possession was found to be in occupation of husband's brother for long. In these circumstances, the Court held that the landlady had fully established her bonafide requirement of the flat.

21. While there can be no dispute that the landlord is the best judge of his residential requirements and that the landlord should have a legal right to the alternate premises and the tenure of the same should not be precarious, the aforesaid authorities would not advance the respondent's case in the present set of facts. Unlike in Prativa Devi's case (Supra) where the landlady was being expected to continue to stay with her family friend, in the instant case the respondent landlady is staying with her family. Besides, nothing has been brought on record to show whether the premises in which the respondent and her family are residing in Calcutta is a rented one or a purchased flat and whether it is in the respondent's name or her son's name or their joint names. In any case, it is the admitted position that the respondent is staying comfortably at Calcutta and there is no threat to the occupation of the said flat by her and her family members.

22. The aforesaid reasoning would also apply in distinguishing Meenal Eknath's case (Supra) in as much as the alternate accommodation is not said to be under leave or licence basis.

23. The case of Deepak Arora v. S.N. Sehgal and Ors. (1995 RLR 219), relied on by learned counsel for the respondent, is also completely distinguishable on facts. In the said case the learned Additional Rent controller dismissed the petition for bonafide requirement and held that petitioner had not proved that her husband had shifted her business to Delhi from Lucknow and further that the daughter's of the petitioner landlady in that case were staying at Lucknow. The landlady, in contemplation of her husband doing business at Delhi, had shifted to Delhi alongwith her daughters and started living with her sister-in-law. The learned Single Judge, while allowing the revision petition, held that the petitioner landlady had shifted to Delhi and her daughters had even joined the school. Even though the reason for shifting to Delhi, viz. setting up business in Delhi may cease to exist, still the factum of shifting to Delhi will not disappear. The learned Judge observed that once the landlady states that she had shifted to Delhi and required the premises for residence, nobody can insist that she must live in Lucknow. The choice if of the landlady wherever she wants to reside. This case is completely distinguishable on facts from the present case where were are concerned with an old lady who does not claim that she has shifted to Delhi, but has only deposed that if the premises are vacated, her daughter may join to live with her in Delhi. The bonafide need has to be judged considering the surrounding circumstances, wherein the landlady is living comfortably at Calcutta with her only son, daughter-in-law and grandson, with whom relations are extremely cordial.

24. In view of the foregoing discussion, I am of the view that the original cause of action on which the petition was founded, viz. the respondent landlady shifting to Delhi alongwith her husband, who was setting up an office, ceased to exist after the death of her husband. The respondent landlady has failed to establish that the premises in suit arc required by her or her family members for residence in the changed circumstances. Based on the evidence on record, the finding of the learned Additional Rent Controller that the premises in suit are bonafide required by the landlady for residence for herself and members of her family dependent on her, is not sustainable in the light of the deposition of the landlady and the failure to examine her married daughter and son. The revision petition, therefore, is accepted and the impugned order is set aside.