Shri Anand Prasad Sharma vs Shri Ram Singh And Ors.
2006 Latest Caselaw 1617 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioner filed an eviction petition against the respondents / tenants under Section 14(1)(e) read with Section 25-B of the Delhi Rent Control Act, 1958 (hereinafter to be referred to as, the said Act) in respect of the tenanted premises forming part of property bearing No. 4767, Phatak Rashid Khan, Jogiwara Maliwara, Chandni Chowk, Delhi detailed in the site-plan in red on grounds of bona fide requirement. The eviction petition was filed in October, 1980.

2. The petitioner claimed to be the owner of the premises. The original tenant was Shri Ladli Prasad and his sons, S/Shri Ram Singh, Pooran Singh and Shyam Singh were imp leaded as the respondents.

3. The petitioner has set out his family as comprising of himself, two married sons, their wives and eight children, who were school-going. The accommodation available with the landlord at that stage was one small room of 10 x 7 the ground floor, one small room of 11 x 6, one small room of 9x 6one dallan of 9 x 6 which was converted into kitchen on the first floor and two small rooms measuring 6x 5one small room of 9x 6on the second floor of the property in question besides common latrine, bath room and chowk. The petitioner also claimed that two of his married daughters visit the petitioner frequently.

4. The amended written statement filed by the respondents did not dispute the relationship of landlord and tenant between the parties nor the ownership of the petitioner. It was also not disputed that the letting purpose was residential. However, the bona fide requirement of the petitioner / landlord was disputed and it was alleged that the petitioner was in possession of larger accommodation. The petitioner was also stated to have filed eviction proceedings against other tenants.

5. The eviction petition was rejected by the Additional Rent Controller (hereinafter to be referred to as, the ARC) in terms of the impugned order dated 31. 10.1986 holding that the petitioner did not require the premises bona fide as sufficient accommodation is available with him. The material findings in this behalf are as under:

(i)The petitioner does not require any accommodation for the transitory visits of his married daughters;

(ii)The dallan in the plan on the ground floor is actually a living room;

(iii)The petitioner has succeeded in the eviction petition against another tenant, Smt. Bhagwan Dei in respect of 3 rooms, one store, one kitchen, latrine and terrace;

(iv)There is no requirement of pooja room, which is fanciful; and

(v)The plea of the petitioner that rooms of less than 100 sq. ft. ought not to be considered and that at least 2 rooms have to be combined together to make a room cannot be accepted despite the judgment in S.K. Gupta and Anr. v. R.C. Jain .

6. The ARC also took into account the requirement of the family then existing and on that basis came to the conclusion that the rooms available with the petitioner were more than the requirement of the petitioner.

7. Since this matter has been pending for so many years, much water has flowed since then and it is not in dispute that the subsequent facts have to be taken into consideration. Insofar as the tenants are concerned, it is stated that all the three respondents have since passed away and, as stated above, the respondents were the sons of the original tenant. Shri Ram Singh passed away in 1997 and has a wife, two sons and a daughter. The daughter is married and the sons are stated to be aged 42 and 30 years respectively. Shri Pooran Singh passed away in the year 1994 and his wife also passed away in 1996. His two sons aged 43 and 35 years are stated to be living in the tenanted premises. Shri Shyam Singh died in 1994 leaving no heirs. This is insofar as the tenants are concerned.

8. The position of the landlord is explained in the additional affidavit filed by the petitioner dated 29.08.2006. Shri Anand Prashad Sharma, the original landlord and the petitioner herein has passed away and, thus, the affidavit was filed by Shri Nirankar Prashad Sharma, his son. The property in question was bequeathed to his two sons, namely, S/Shri Nirankar Prashad Sharma and Onkar Prashad Sharma. Shri Onkar Prashad Sharma is stated to be the owner of all the rooms on the ground floor as well as the first floor, which was already in his possession. The portion vacated by Smt. Bhagwan Dei, referred to above, was also occupied by Shri Onkar Prashad Sharma. The original petitioner passed away in 1992 and the portion of the house was sold as a method was being devised to partition the property inherited by them. Shri Onkar Prashad Sharma executed a Relinquishment Deed in respect of the other portion in favor of Shri Nirankar Prashad Sharma. The disputed portion has, thus, come to be owned by Shri Nirankar Prashad Sharma. Shri Onkar Prashad Sharma had sold his portion of the house and has shifted to Faridabad.

9. The family of Shri Nirankar Prashad Sharma consists of himself, his wife, two sons aged 28 and 27 years respectively both ready for marriage, one married daughter and two married sisters living in Gaziabad and Rohini. It is the requirement of this family, which would now have to be considered to determine the bona fide requirement of the petitioner / landlord.

10. The husband and wife would require one room. The sons would require one room each considering their age and they are now of marriageable age. One room would be required for the visiting married daughter or sisters and can be treated as the guest room. There would be requirement of one drawing-cum-dining room and one store room. The petitioner has also claimed a pooja room on account of the fact that the family is extremely religious.

11. Learned Counsel for the petitioner has referred to the Division Bench judgment of this Court in Sushila Devi and Ors. v. Raghunandan Pershad and Ors. where it was held that the requirement of landlord for guests and relations, who visit and stay with him off and on, is required to be considered. It was held that the marriage of the daughter did not snap the ties with their family and married daughters often come along with the families to stay with their father.

12. In my considered view, there can be really no dispute on this account in view of the aforesaid judgment and the general social milieu in India.

13. The second aspect emphasized by learned Counsel for the petitioner is in respect of the pooja room. In this behalf, learned Counsel has referred to the judgment of learned Single Judge of this Court in Silvertone Mfg. Co. of India and Anr. v. Smt. Usha Soi, 1994 (30) DRJ 548. In the particular case, it was a pooja-cum-store room, which was in question, and it was held that she cannot be dictated to do her pooja in the bedroom or pantry. Reliance was placed on the judgment of the Apex Court in Pal Singh v. Sunder Singh .

14. A perusal of the aforesaid judgment shows that the requirement construed is really of a pooja-cum-store room. In the present case, the requirement, thus, has to be seen of a pooja room in the context that one store room has also been claimed. Thus, one room can be assigned as a pooja-cum-store room.

15. The aforesaid requirement of the landlord now has to be considered in respect of the accommodation available. It may also be emphasized that in this behalf the size of the room becomes material while construing the utility of any room. The petitioner has set out that he is in possession at present of one dallan measuring 10 x 6 on the ground floor, 2 rooms on the first floor of 11 x 6 and 9 x 6, a kitchen measuring 9 x 6, a store measuring 6 x 5 and a dallan measuring 9 x 6. On the second floor, there are 2 rooms measuring 9 x 6 each and another room measuring 6 x 5. The dallan, store and kitchen on the first floor were earlier occupied by a tenant, who had vacated the same. Similarly, one room on the second floor was also vacated by a tenant, thus, the petitioner has also set out in the additional affidavit, what is available with him now.

16. The rooms measuring 11 x 6 and 9 x 6 are being used by one of the sons of the landlord for earning his livelihood and he is running a business of off-set printing from the said two rooms. There is no other means of livelihood. In this behalf, a reference has been made to the judgments of this Court on the question whether a landlord can permit a part of the premises to be used for a commercial purpose. Learned Counsel for the petitioner has referred to the judgment in the case of Bundhu Khan v. Ahmed Hussain 2005 (1) RCJ 1 to advance the proposition that the landlord cannot be expected to shut down his business and starve. In Hari Shanker v. Madan Mohan Gupta , the room being used for business purposes was also considered and it was further held that the tenant cannot dictate how the landlord has to solve his financial difficulties, which may even require sale of a portion of the property.

17. Learned Counsel for the petitioner also referred to the judgment of learned Single Judge of this Court in Om Parkash Singal v. Roshan Lal Khanna VIII 1969 All India Rent Control Journal 645 to contend that a landlord must be left to assess his requirement in the background of his position, circumstances, status in life as also social responsibility. The tenant cannot dictate how the landlord should live so long as the requirement is not fanciful.

18. A conspectus of the aforesaid judgments shows that the use of the two rooms on the first floor by the son of the landlord for earning his livelihood for running the business of off-set printing cannot be taken into account whereby the landlord is compelled to vacate those rooms for his residential use.

19. The residential accommodation available with the landlord is 5 rooms consisting of 2 rooms measuring 9 x 6 each and 1 room measuring 6x 5, 1 dallan measuring 10 x 6 and 1 store room measuring 6 x 5 on the ground floor, 1 dallan measuring 10 x 6, which is stated to be used for drawing-cum- dining room. If this accommodation is considered as per the requirements of the landlord, the drawing and dining room requirement is being taken care of by ground floor room of 10x 6. The size of the room makes it inadequate. The store room is available on the first floor, but the size of the store room 6 x 5 is so small that it cannot be expected that the same can be used also as a pooja room. The remaining 4 rooms available would be required for the husband- wife, two sons and as a guest room. It may also be stated that the room measuring 9 x 6 on the second floor vacated by the tenant was being used as a bath room by the landlord and his family.

20. The problem, which arises in the present case, is the very small size of the rooms. The rooms by themselves though are stated to be used for a particular purpose are so small that they hardly suffice for that purpose. This is also the position of the dallan of 10 x 6 being used as a drawing-cum-dining room. It is only possible with the combining and re-adjustment of the size of the rooms, would the landlord be able to make up his requirement.

21. I am unable to agree with the conclusion of the learned ARC that the size of the room becomes irrelevant and the judgment of this Court in S.K. Gupta's case (supra) has been wrongly ignored. It cannot be said that the judgment would only apply to the own facts of its case. No doubt, the social status of a party becomes important while considering whether the requirement is bona fide or not. Yet, at the same time, the size of the room is also material as the idea is not to settle the landlord in extremely small rooms when it is possible for the landlord to have the benefit of the larger accommodation by getting the tenant vacated.

22. The respondent had filed a supplementary affidavit dated 31. 08.2006 and has sought to bring forth the sale done by Shri Onkar Prashad Sharma and the present landlord. This aspect already stands explained above. A plea has also been raised that the petitioner has recently constructed a new room on the second floor by putting asbestos / tin-sheds. If that be so, the very nature of the room and the coverage shows that this is an emergency requirement made. The respondent has also sought to include the accommodation vacated by tenants, but that has already been taken into account. In fact, learned Counsel for the petitioner clearly set out with reference to Exhibit A4, the plan as to what portion was in his occupation and what was with the tenant.

23. In judging the requirement of the landlord, it is the bona fide requirement of the landlord, which has to be considered and not the balancing of the requirements of the landlord and the tenant. The landlord needs rooms for residence, for kitchen, for bath room and toilets as also for drawing and dining.

24. It may also be noticed that the tenancy being residential, the heritability is restricted to the legal heirs dependant on the deceased tenant. In the present case, Shri Shyam Singh passed away without leaving any heirs. Shri Pooran Singhs sons are stated to be 43 and 35 years old and, thus, even when he passed away in 1994, would be 31 and 23 years old and could hardly be called as dependant on the tenant. In case of Shri Ram Singh, the sons are 42 and 30 years old and at his demise would be 33 and 21 years old, again capable of looking after their needs. It is only the widow of Shri Ram Singh, who would really be the dependant tenant.

25. Be that as it may, on consideration of the requirement of the landlord, I am of the considered view that there is a lack of sufficient accommodation available with the petitioner. An eviction order is, thus, passed in respect of the tenanted premises as set out in red in the site plan Exhibit A4 and has described in the petition. The respondents are granted 6 months time to vacate the tenanted premises.

26. The petition is allowed leaving the parties to bear their own costs.