Dau Dayal Aggarwal vs Shri Akhil Rohtagi
1998 Latest Caselaw 474 Del

ORDER

Manmohan Sarin, J.

1. Petitioner is a tenant in respect of premises bearing No.26, KailashKunj, Greater Kailash-I, New Delhi. Petitioner tenant has suffered an evictionorder dated 4.10.1997, passed by Ms.Asha Menon, Additional Rent Controller,under Section 14(1)(e) of the Delhi Rent Control Act (hereinafter referred toas the 'Act').

2. Facts leading to the filing of the present revision petition may benoticed in brief:

(i) Respondent is the owner ofFlat No.26, Kailash Kunj, Greater Kailash, New Delhi, which was let out to THE petitioner. The premises comprise three bed rooms, one drawing-cum-dining room,one kitchen and two toilets.

(ii) Respondent filed aneviction petition on 31.5.1991, against the petitioner on the ground ofbonafide requirement, claiming that he required the premises for himself andhis family, comprising his wife, two daughters, then aged 14 years and 12years and a son aged 4-1/2 years. Respondent claimed that he was residing at19, Spencers Lane, Alipore Road, Delhi, which is a house belonging to hisfather. Respondent's case is that apart from his parents, his two marriedbrothers and their families are also residing in the said house at 19, AliporeRoad, Delhi. Respondent and his family have the use only of one room and astore along- with the common use of drawing room, etc. in the house with hisbrothers and parents. He pleaded that accommodation for him at 19, AliporeRoad, Delhi, had become insufficient and, hence, the requirement to shift tohis own flat.

(iii) Petitioner was grantedleave to contest the eviction petition and he filed his written statement.After completion of pleadings, parties led evidence. The learned AdditionalRent Controller, after hearing arguments, passed the impugned order ofeviction.

3. It may be noted that there is no challenge to the respondent being theowner of the premises in suit. Petitioner revisionist has assailed the order ofeviction on the following grounds, which have been pressed before me:

(i) There was sufficientaccommodation available to the respond- ent and his family at 19, Alipore Road,Delhi. The said house is on a large plot of 4000 sq.yds. or so. No proof as torespondent's brothers staying in the same house, by way of ration card, etc.,has been furnished. Adverse inference ought to be drawn from the respondent notproducing his father and brothers to depose regarding the availableaccommodation at 19, Alipore Road, Delhi.

(ii) It was contended that accommodation at 19, Alipore Road, Delhi was suitable alternate accommodation as it was notthe respondent's case that his father was asking him to leave the premises.There was no shortage of accommodation. Respondent had also not produced thesite plan of 19, Alipore Road, Delhi.

(iii) Petition was not filedbonafide since the respondent's whole objective was to increase the rent byre-letting the premises. It was alleged that respondent had brought about undue pressure on the petitioner to increase the rent to Rs.3,025/- and the petitioner perforce entered into a compromise, which was subsequently challenged. Respondent, in spite of the increase as aforesaid, persisted in hi sfalse statement that he did not increase the rent. Respondent falsely deposed and repelled the suggestion that he wanted to increase the rent. This, the learnedcounsel argued impinges upon the credibility of the respondent.

iv) Respondent had also not shown any change of circumstances, which would render the accommodation at 19,Alipore road, Delhi, insufficient and unsuitable. Petitioner also contended that the premises in suit had been let out for residential-cum-commercial purposes since the petitioner's son was carrying on the business of Property Dealer and was operating from the premises in suit.

4. Learned counsel for the petitioner, in support of his case, relied on the following authorities:

(i) Learned counsel, firstly, relied on Gurdip Singh Vs. Ram Dev (1972 RLR Note 173) to support his contention that the landlord was required to give particulars and size of the accommodation in his occupation and produce the plan giving dimensions of the same to enable judging the suitability of the accommodation and the manner in which it was being used.

(ii) As regards the nonproduction of respondent's father and brothers as witnesses, learned counsel for the petitioner relied on Satya P. Vohra Vs. Smt.Sudesh Vohra (1975 RLR Note114) to claim that they were material witnesses and adverse inference should beraised on account of their non-production.

(iii) Lastly, learned counsel for the petitioner cited Rajeshwari Vs. Bombay Tyres International Ltd. in support of his contention that the petition should be held to be malafide since it was filed after the petitioner declined to increase the rent as demanded.

5. Learned counsel for the respondent, on the other hand, has supported the order of eviction and refuted the arguments of the petitioner. He relied on K.B. Mathew Vs. Bhagwant Singh (1988 RLR 491) in support of the contention that the landlord of a high status is entitled to comfortable living and required a guest room for visits of his married daughters and other relations. He also placed reliance on Raghvir Singh Vs. Virender Kumar (1994 RLR 183 in support of his contention that grown up children of landlord need independent rooms and the tenant cannot contend that the landlord failed to give plan of additional accommodation, as nothing prevented the tenant to produce the plan. Some increase of rent previously does not show the present petition to be a malafid eone.

6. Learned counsel for the petitioner also placed reliance on Jagmohan singhVs. K.M. Bhatnagar (1995 RLR 527) in support of his contention that a tenant claiming residential-cum-commercial user of the premises should support this by producing registration under the Shops & Establishments Act, Income Tax Act and Sales Tax Act. Merely giving the address for commercial correspondence was not enough. There is no written agreement regarding the letting purpose, which has to be inferred from the nature of premises and/or number of family members, locality and the paramount lease between the government and the owner, etc.

7. Learned counsel for the respondent, lastly, placed reliance on Bhairab Chandra Nandan Vs. Ranadhir Chanda Dutta in support of his contention that the findings of fact, based on evidence, ought not to be interfered by the High Court.

8. Let us first consider the submission of the petitioner that the petition is not maintainable since the premises were let out for residential-cum-commercial purpose. The premises in question are allotted by the Delhi Development Authority to the respondent under the Self Financing Scheme. The nature of the premises is, admittedly, residential. There is no written agreement. It has not been disputed that the petitioner, i.e. the entire family, comprising three married sons, is residing in the suit premises. No evidence with regard to commercial user in terms of Certificate Shops & Establishments Act, Income Tax registration or other evidence of commercial user has been produced, except the bald statement of the petitioner. Having regard to the nature of the premises, locality and the available accommodation, the dominant user would be residential. Rather, the constraint of space would obviate any other user. Accordingly, no fault can be found with the reasoning given in the impugned order holding the letting purpose to be residential'.

9. The next submission of the petitioner is that there was sufficient accommodation with the respondent at 19, Alipore Road, Delhi. The respondent, in his examination-in-chief, had clearly stated that apart from him- self and family, his parents, his two married brothers and their families were residing at 19, Alipore Road, Delhi. Respondent and his family had only one bedroom and a store available to him. While it is true that the initial onus of showing the available accommodation, being in-sufficient, rests on the landlord, who is normally expected to file the site plan of the premises. In the instant case the respondent had deposed, on oath, about the available accommodation. He had stated that it was his father's house in about 1500 sq. yards and that there were five rooms, one drawing room and five out-houses for servants. The extent of accommodation was not challenged in the cross-examination. The petitioner had sought time and undertaken to produce the plan showing the size and dimensions of accommodation at 19, Alipore Road, Delhi. It is not the petitioner's case that respondent had resisted any attempt to get the plan prepared or that he moved the Court for directions for appointment of Local Commissioner to have the plan prepared. Petitioner simply neglected and failed to produce the plan after seeking time for this purpose. In these peculiar circumstances, no adverse inference could be drawn on account of petitioner not having filed the site plan of premises at Alipore Road. Respondent, in my view, also satisfactorily explained the change in circumstances from the time the premises were let out to the petitioner by him. During the interegnum, two brothers of the respondent had got married and their families had grown. Respondent's own children have grown up and are adults now. Besides, there was no challenge to the respondent's statement that there were five bedrooms and there were eight adults and that there were seven grown up children to occupy the same. Petitioner, in his examination-in-chief and cross-examination of the respondent, only suggested that there was sufficient accommodation with ther espondent. Petitioner did not make any suggestion with regard to the respondent's brothers living elsewhere or confront the respondent by giving any other address or premised, at which, according to him, the said brothers were living, if not at 19, Alipore Road, Delhi. In these circumstances, the learned Additional Rent Controller cannot be faulted with in reaching the conclusion that the accommodation available to the respondent at 19, Alipore Road, Delhi was not sufficient. Besides, the respondent had no legal right to stay in the said premises, which belong to his father and where his other brothers are staying with their families. In these circumstances, the bonafide desire of the respondent, to live in his own premises in suit in comfort, could not be disregarded.

10. As regards the last submission of the petitioner that respondent simply wanted to enhance the rent and re let the premises, this was the case taken in the pleadings. However, during evidence, petitioner sought to make out a case of the respondent wanting to sell the premises. In any case, no evidence on the latter was produced. Mere factum of the respondent, as per the allegation of the petitioner, having forced a rental increase and then stating during cross-examination that he did not want an increase in rent would, by itself, not be fatal to the petition, especially in view of other over-whelming evidence.

11. In view of the aforesaid discussion, I do not find any error of jurisdiction or material irregularity in the impugned order of the learned Additional Rent Controller. The revision petition has no merit and is dismissed.