Radhey Shyam, H.U.F. vs Shri M.L. Parbhakar
1999 Latest Caselaw 1058 Del

ORDER

Vijender Jain, J.

1. Aggrieved by the impugned order whereby the eviction petition under Section 14(1)(e) of the Delhi Rent Control Act filed by the petitioner was dismissed by the Additional Rent Controller, the landlord/owner has filed the present Revision Petition.

2. It has been contended before me by learned counsel for the petitioner that the finding qua the ownership was returned in favour of the petitioner. Even the purpose of letting was held to be residential by the Additional Rent Controller. The Additional Rent Controller has dismissed the eviction petition on the ground that the premises were not required bona fide by the petitioner and the petitioner had not approached the Court with clean hands. It was further held in the impugned order that the petitioner had sufficient alternative accommodation available in his hands.

3. Mr. Sandeep Sethi, learned counsel for the petitioner has contended that the family of the petitioner, at the time of the filing of the eviction petition, consisted of petitioner, his wife, one married daughter-Geeta Bakshi and younger daughter Rashmi Bansal and a son Rajiv Singal. There were two daughters of elder daughter Geeta Bakshi aged 3 and 6 years when the eviction petition was filed in the year 1989. Mr. Sethi learned counsel for the petitioner vehemently contended that the findings of the Additional Rent Controller were incorrect and, as a matter of fact, there was enough material on record to show that both the daughters of the petitioner required the premises as they have been living with the petitioner even after their marriage. During the pendency of the civil revision in this Court, the petitioner Radhey Shyam died in the year 1995. During the pendency of the eviction petition, the son the petitioner got married in the year 1992. From the marriage, the son the the petitioner has one son and one daughter aged four and six years respectively.

4. On the other hand, Mr. Mohinder Singh, learned counsel for the respondent has stoutly defended the order passed by the Additional Rent Controller. He has contended that the petitioner did not come to the Court with clean hands as he withheld information with regard to the accommodation available in property No. 16/57. Whereas in the site Plan filed by the petitioner, which is Ex. AW2/2, has been shown as open with plants. He has further contended that from the bare perusal of the Municipal Corporation of Delhi Reports of inspection, it would be seen that Ex. RW4/1 and RW1/P2 mention six and eight rooms respectively. Mr. Mohinder Singh has further contended that the accommodation available in property No. 16/57 comprising of three rooms could be used by the petitioner and, therefore, has defended the impugned order passed by the Additional Rent Controller.

5. Learned counsel for the respondent further contended that the premises No. 16/57 consisting of thee rooms was used previously by one K.K. Grover for residential purposes and, therefore, it can not be said that that accommodation cannot be used for the purposes of residence by the petitioner. I have given my careful consideration to arguments advanced by counsel for the parties.

6. Let me examine the need of the petitioner ignoring the fact that the two daughters namely Geeta Bakshi and Rashmi Bansal, who are married, are not residing with the petitioner. In that eventuality petitioner's wife would require a room for herself . The son of the petitioner who was a room for herself. The son of the petitioner who was married in the year 1992 and has got two children aged four and six years, would be requiring one room for himself and one room for the children. One room is also required for the daughters of the deceased petitioner's daughters and their children. Requirement of one more additional room for other relatives and friends can be deemed to be unreasonable or not bona fide. That makes the total requirement of the petitioner to five rooms. According to AW2/2 filed by the petitioner, the petitioner had two rooms, one drawing and dining room. In addition to that, two store rooms and two verandahs are also shown in the said Site Plan. No Site Plan challenging the Site Plan filed by the petitioner was filed by the respondent. However, during the cross examination of AW3-Geeta Bakshi, a Site Plan was put to the witness which has shown drawing cum dining room under the drawing cum dining room which is in possession of the respondent on the first floor. How that Site Plan could have been taken into consideration by the Additional Rent Controller is beyond comprehension. Respondent had enough opportunity to file the Site Plan in rebuttal after the Site Plan was filed by the a petitioner disputing the accommodation available in the hands of the petitioner. Same was not done. In the absence of any Site Plan filed by the respondent to adduce any inference from the testimony of the witness of the respondent on the basis of the Site Plant which was shown to the witness, being a new document, was permissible.

7. Now, let me come to another contention of learned counsel for the respondent that the accommodation available at property No. 16/57 consisting of three rooms was sufficient as alternative residential accommodation in the hands of the petitioner. Reliance accommodation in the hands of the petitioner. Reliance has been placed on Ex. RW4/1 and RW1/P2, which are two inspection reports of the Municipal Corporation of Delhi for the purposes of house tax assessment. I wonder as to whether in view of inconsistent stand taken in these two reports any reliance could be placed on them. Ex. RW4/1 stated that there are six rooms. Size has been mentioned of two rooms which were built on property No.16/57 as 10'x12' whereas in Ex. RW1/P2 it has been mentioned as eight rooms and size of the rooms has been shown as 10'x8' in relation to two rooms. In view of such obvious inconsistency in these reports, no reliance could be placed on these reports. Moreover, in his cross examination, the respondent at page No. 37 of the Trial Court record has stated with relation to the distance between the property in question and the rooms constructed at 16/57 :-

"The distance between the room in XZ and X1 might be between 30 to 35 fts. It is correct that during rainy season one has to pass through the open space for going to point X1 in Ex. AW3/X. It is correct that petitioner is not living in the portion mark XZ in that petitioner is not living in the portion mark XZ in the Site Plan Ex. AW3/X but he has been using the same for storing goods etc. It is correct that portion 'X' to 'Y' is one straight portion and there is no partition between the two. It is incorrect that after death of earlier tenant, Mr. Grover the servant of petitioner used to reside in the portion mark XZ. Vol. Now the servant of petitioner are residing at the above portion for the last about two years."

8. In view of the factum of the servants of the petitioner residing in the said premises and the size of the family and taking into consideration the distance one has to cover from going to the property in question to the property at 16/57, it cannot be said that alternative accommodation was available in the hands of the petitioner. From the perusal of Ex. AW/2. I also find no force in the arguments of counsel for the respondent that the petitioner, with mala fide intention, has mentioned portion open plants over property No. 16/57. If I take the measurement of the property as per Ex. AW2/2, this is in relation to property No. 16/58 measuring 960 suare yards, the property which bears No. 16/57 ad-measures 200 to 260 square yards which has not been shown in the Site Plan. On all accounts, I find no merit in the submissions of learned counsel for the respondent. I set aside the order of the Additional Rent Controller, in view of the paucity of accommodation keeping in view the size of the family of the deceased petitioner, pass as eviction order under Section 14(1)(e) of the Delhi Rent Control Act. However the said order will be executable after expiry of a period of six months.

9. Civil Revision is allowed.