I.M. Sethi vs M/S. Trade Links Limited
2009 Latest Caselaw 3775 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

                     Judgment reserved on: 31.08.2009

%                    Judgment delivered on: 15.09.2009

+                           C.R. P. No. 833/2003

        I.M. SETHI                                   .....Petitioner
                            Through:     Mr. Rajesh Yadav and Ms.
                                         Ruchira V. Arora, Advocates.

                       versus


        M/S. TRADE LINKS LIMITED                    .....Respondent
                        Through:       Mr. Girdhar Govind and Ms.
                                       Noorun Nahar Firdausi,
                                       Advocates.



CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI

1.      Whether the Reporters of local papers may
        be allowed to see the judgment?                   No

2.      To be referred to Reporter or not?                Yes

3.      Whether the judgment should be reported
        in the Digest?                                    Yes

                                JUDGMENT

VIPIN SANGHI, J.

1. I have heard learned counsel for the parties and proceed

to dispose off this revision petition.

2. The petitioner is the landlord in respect of the tenanted

premises with the respondent. In the year 1996, the petitioner

preferred an eviction petition under Sections 14C (on the ground

that he has retired from government service) and 14(1)(e) (on the

ground of bona fide requirement of the petitioner and his family) of

the Delhi Rent Control Act 1958 (the Act) to seek eviction of the

respondent from the tenanted premises. The petitioner had, prior to

the filing of the eviction petition against the respondent, also

preferred another eviction petition against another tenant, one Ms.

Neeru Verma, also on the ground of eviction contained in Section

14C of the Act in respect of portion under her tenancy. During the

pendency of the eviction petition against the respondent, the

petitioner obtained possession of the premises let out to Ms. Neeru

Verma upon succeeding in his petition under Section 14C.

Consequently, the eviction petition filed against the respondent was

amended in December, 2000. The ground of eviction under Section

14C was, therefore, held to be not available to the petitioner any

longer to seek eviction of the respondent herein. The petitioner

does not press for eviction of the respondent on the ground of

eviction contained on Section 14C of the Act. Therefore, the

impugned order needs examination only on the ground of bona fide

requirement of the petitioner.

3. In the impugned order dated 21.04.2003 passed by the

learned Additional Rent Controller, Delhi he has returned findings in

favour of the petitioner in so far as the question of ownership of the

tenanted premises is concerned, and about the existence of the

relationship of landlord and tenant between the petitioner and the

respondent. These findings have not been assailed by the

respondent in any proceeding. These findings have, therefore,

attained finality. On the question of purpose of letting the finding

returned was that the same was composite i.e. residential-cum-

commercial. On question of bona fide requirement of the petitioner,

the Court returned a finding against the petitioner looking to the

accommodation that became available with him consequent upon

Ms. Neeru Verma being evicted from a portion of the property.

Consequently, the eviction petition has been dismissed by the

impugned order.

4. During the pendency of this petition, the Supreme Court

has rendered its decision in Satyawati Sharma v. Union of India

& Anr. (2008) 5 SCC 287. On account of the aforesaid decision

being rendered, the issue whether the premises was let out for

residential-cum-commercial purpose or only for residential purpose

has become irrelevant. Even if it is assumed that the purpose of

letting was residential-cum-commercial, the petitioner would be

entitled to maintain the petition on the ground contained in Section

14(1)(e) of the Act. Consequently, the only aspect on which the

impugned order needs to be examined in this revision petition is

with regard to the approach of the learned ARC in assessing the

bona fide requirement of the petitioner to claim eviction of the

respondent from the premises under its tenancy. In this light I

proceed to narrate a few background facts.

5. The property bearing No.13B/4, Uttari Marg known as

13B/4, Sant Gadge Marg, Northern Extension Area, New Delhi was

owned by Sh. J.R. Sethi, father of the petitioner. Sh. J.R. Sethi died

leaving a Will dated 06.07.1971. As per the Will Smt. Dayawati, his

widow, remained the owner during her lifetime and after her death,

as per the said Will the property devolved upon the petitioner and

his brother Sh. R.C. Sethi. After the mother's death, as per mutual

settlement between the petitioner and his brother the ground floor

of the said property and the left side garage block was taken by Sh.

R.C. Sethi, while the first floor and Barsati floor along with right side

garage block was taken by the petitioner. Thus, the petitioner

became the exclusive owner of the first floor portion as also the

Barsati floor portion.

6. The premises in question with the respondent/tenant

consists of one bedroom, one servant quarter, one store room and

one bathroom on the first floor and two rooms on Barsati, one

mezzanine room above garage and terrace above garage block with

open toilet, which has been clearly shown in red in the site plan

attached with the amended eviction petition.

7. The case of the petitioner in his amended eviction petition

was that he did not own any other property in Delhi except the

aforesaid property, that too jointly with his brother Sh. R.C. Sethi.

The family of the petitioner, at the time of filing of the petition

consisted of himself, his wife, two married daughters and one

unmarried daughter. The petitioner stated that he had retired on

superannuation from Central Railway as Chief Mechanical Engineer

on 30.09.1995. At the time of his superannuation, he was posted at

Bombay and after his retirement he shifted to Delhi on 07.06.1996

along with his family members and had been residing with his in-

laws at 5B, Link Road, Jangpura Extension on account of paucity of

accommodation. The petitioner stated that though he had obtained

possession from the other tenant Ms. Neeru Verma and he was in

possession of the portion vacated by her, the said portion was not

sufficient for his bona fide requirements and that of his family. The

requirement of the petitioner set out in the amended petition was as

follows:

"(i) One Bed Room for the Petitioner and his wife

(ii) One dressing room.

(iii) One Bed Room for an unmarried daughter.

(iv) Two Bed Rooms for the married daughters of the Petitioner who off and on visit the house of the Petitioner with their husband and children as per the normal Hindu customs.

                (v)    One Guest Bed Room.

                (vi) One     Study   Room    for   unmarried
                daughter.

                (vii) One Study and Consultation Room for
                the Petitioner.

                (viii) One Drawing-cum-dining Room.



                 (ix)    One Pooja/Meditation Room.

                (x)  One Kitchen with a store, toilets and
                open terrace.

                (xi) Two Rooms required as servant

quarters for full time domestic servants with toilets.

(xii) One Box room for storage."

8. In its written statement, the respondent admitted to being

in occupation of two bedrooms, one store room, one bathroom on

the first floor, two Barsati rooms with open terrace at the Barsati

floor, one room, open toilet and open terrace above the garage

block. There is no doubt that whatever portion of the property

No.13B/4, Uttari Marg/Sant Gadge Marg, Northern Extension Area,

New Delhi the respondent is in possession of, is in its capacity as a

tenant under the aforesaid lease only, and not otherwise. The

respondent claimed to be a tenant in the premises since

05.11.1971. It was stated that from the other tenant Ms. Neeru

Verma, the petitioner had obtained possession of drawing room,

dining room, study room, office, three bedrooms with attached bath,

kitchen, two verandah, corridor on the first floor, open space/terrace

and a toilet on the second floor and a garage.

9. Leave to defend the eviction petition was initially declined

by the ARC, but that decision was reversed by this Court on

17.11.1997. Accordingly, the matter went through a regular trial.

The petitioner appeared as PW-1. He stated that his family consists

himself, his wife, three daughters of which the elder two were

married and the youngest was staying with the petitioner. He

stated that he had two grandchildren and two sons-in-law. At the

relevant time his younger daughter was doing her M.A. (Psychology)

from Delhi University. He also deposed that he retired as Chief

Mechanical Engineer from Central Railway in September, 1995. The

accommodation available with him, as per his deposition comprised

of three bedrooms, one dressing room, three bathrooms, front

verandah, back verandah which has been extended by removing the

partition wall of the adjoining small room which was of the size of

11.5 ft. x 10 ft., and one garage. The reason for removing the

partition wall of the small room was stated as follows:-

"This partition wall I had to remove as the corresponding partition wall on the ground floor was removed by my brother and consequently when there was no support for the wall, I had no other option but to remove it."

10. He further deposed as follows:

"During the pendency of this case, I recover possession of one office room, two bedrooms, dining-drawing room, three bathrooms, front verandah and back verandah, kitchen and garage from a tenant Mrs. Neeru Verma vide an eviction order dated 13.8.98 passed by Mrs. R. Kiran Nath, the then Ld. Rent Controller. The accommodation presently available with me is highly insufficient. I need one bedroom for my wife and me with and attached dressing room and bathroom, one bedroom for my unmarried daughter with bathroom and study room, two bedrooms for my two daughters and

grandchildren. My married daughters keep coming to me as per Hindu customs as well as for their professional assignments. One guest room, one office room for my consultancy services. One room for my assisting staff. One room for my wife and her professional work for giving tutions as she is a trained and qualified teacher. I need two servant quarters for the servant, garage, drawing-dining, kitchen, puja room, store room, box room and terrace etc. My eldest daughter Malini Vaidya w/o Jayesh Vaidya has done her M.S. Economic and Finance and she is presently working EGON ZENDER in Singapore. My son-in-law is in charge of foreign equities in the Standard Chartered Bank. They have two children aged 5 and 7. My daughter, son-in-law and grand children are Indian citizens with Indian passport. My second daughter has done MBA and she is at present accompanying her husband Sh.

Samudra Sen, who has gone to USA for second MBA. She is working there on temporary basis. Both of them are Indian Citizens and Indian Passport holders. Both my daughters, son-in-laws and grand children want to come back to India. As I have no son I am also keen that my daughters, sons-in-law and grand children come and stay with me. Both my daughters and sons-in-law have applied for job in MNCs and banks. My eldest daughter and son-in- law had once taken up an employment in Delhi after coming from USA. Neither my daughters nor their husbands own any property in Delhi. My wife did her B.A., B.Ed. from Delhi University. She has taught at many schools including D.P.S.

in Delhi, St. Joseph Varanasi, C.J.M. at Mumbai. At present she is giving tutions at home. There is no proper room at home for this purpose.

Therefore, she sometimes operate from verandah and drawing room and she cannot take up more students due to lack of space. I am a graduate of Institutions of Mechanical Engineers,

London. At present I have been taken up consultancy relating to Mechanical Engineering and Railway related projects. At present I have got three projects in hand, from Pan India Consultants, and Aryeal Exporters P. Ltd." (emphasis supplied).

11. The petitioner deposed that he had started his consultancy

services being graduate of Institution of Mechanical Engineer,

London, and having the experience of working as Chief Mechanical

Engineer with the Railways. He disclosed the details of his various

professional clients and stated:

"I have no proper place to work on the projects and I work from the drawing room. It disrupts the working as well as living. I cannot operate from the offices of Principles as a condition of awarding projects is that they will not be providing me any space and they do not have offices in Delhi. It has an adverse effect on my work as I cannot call my clients for discussion. There is no proper space for display, discussion, sitting space for staffs and ultimately there is delay in execution of work. My clients have told me to have proper arrangement in future otherwise they will not award me any work.

I need one room on the first floor for my personal office and one barsati for my staff, computers and other equipments. (emphasis supplied)."

12. Though no such averment was made in the eviction

petition, with regard to the requirement of his wife for

accommodation to run tuition classes, in his deposition as extracted

above, the petitioner put forth her requirement as well of one room

to take tuition classes at home.

13. Pertinently, no objection was raised by the respondent to

the petitioner leading evidence with regard to the requirement of his

wife, on the ground that the same had not been pleaded in the

eviction petition. On the contrary the respondent allowed the said

deposition to come on record and even went ahead to cross-

examine the petitioner extensively on these aspects. With regard to

the requirement set up by the petitioner for his wife the cross-

examination of the petitioner, conducted on 09.07.2002, reads as

follows:

"She was teaching in school in Bombay and was also giving private tuitions. After coming to Delhi, she is not working but giving private tuitions. She is submitting her income-tax returns every year. She is showing her income-from private tuitions in the income-tax returns which she is filing. I have not brought the income-tax returns of my wife but I can produce the same after speaking to the C.A. My flats situated at Bombay, mentioned above are lying vacant."

14. On 28.8.2002 the petitioner (PW1) was again cross

examined on the same aspect and that portion of the cross

examination reads as follows:-

"It is incorrect that my wife is not taking any private tuitions or that she is not showing the income from tuitions in her income tax returns."

15. Similarly, with regard to the requirement of one room for

the petitioners staff, although not pleaded in the eviction petition,

was spoken about by him in his examination, without any objection

or challenge. On this aspect, there was no cross examination at all.

16. The learned ARC rejected the evidence led by the

respondent and did not accept the testimony of the respondent's

only witness Roshanlal. Pertinently, the decision of the learned ARC

in rejecting the testimony of Shri Roshanlal on the ground that he

was incompetent to depose on behalf of the respondent has not

been challenged by the respondent in any proceedings and even in

these proceedings, no submission was made by learned counsel for

the respondent in this regard.

17. The discussion with regard to the bona fide requirement of

the petitioner and his family is contained in paras 29 and 30 and the

same reads as follows:-

"Moreover, as regards the accommodation which is already available with the petitioner, it is not in dispute that during the proceedings of the case, petitioner got possession of the premises which was under his other tenant Smt. Neeru Verma. Pleadings pertaining to her such other tenant has been placed on record and has been proved as Ex.PW1/R-1 and it becomes very obvious that Neeru Verma was in possession of one drawing-cum-dining room, study room/office, three bed rooms with attached bath, kitchen, two verandahs and corridor on the first floor.

In such petition against Neeru Verma, petitioner had also claimed that he was in possession of only one small bedroom on the first floor. Since Smt. Neeru Verma has already vacated the portion which was with her,

petitioner is now in occupation of one drawing and dining room, a study room/office and four bedrooms besides other amenities. The size of the family of the petitioner is not big. He is having three daughters and his two daughters are already married and his only one unmarried daughter is residing with him. He can very well reserve one room for himself and for his wife. One room can be kept exclusively for his unmarried daughter; one room for his visitors and one room can be utilized for office work and even then he has one surplus room with him. He can use this room as pooja room if he so desires. Petitioner has also sought one room exclusively for his wife for her office work. However, no such stand has been taken in the petition and, therefore, requirement in this regard is found to be beyond pleadings and, therefore, cannot be considered at all."

18. Learned counsel for the petitioner submits that the

approach of the learned ARC in assessing the bona fide requirement

of the petitioner and his family is erroneous and the learned ARC

has failed to consider the testimony of the petitioner. He submits

that the small room admeasuring 11.5' x 10' which was earlier

available with the petitioner had to be demolished and the said area

merged with the back verandah on account of the fact that on the

ground floor his brother had removed the load bearing wall. He

refers to his deposition made in this regard which was never

challenged by the respondent.

19. He submits that, first and foremost, the learned ARC erred

in assuming the availability of four rooms with the petitioner. The

petitioner had only three rooms available on the first floor, which

had been vacated by Ms. Neeru Verma, apart from one room

designated for office purposes. Learned counsel for the petitioner

further submits that his requirements for his own professional office

has also not been correctly assessed in the light of the unrebutted

evidence led by the petitioner. It had come out in the petitioner's

deposition that he requires one room for his consultancy services

and one room for his assisting staff. However the learned ARC has

taken into account only one room for office work of the petitioner.

He further submits that even though there was no specific pleading

in respect of the requirement of one room for the petitioner's wife to

run her tuition classes, or for the petitioner's staff, the petitioner

had led his evidence in this regard without any objection from the

respondent and the respondent had availed of ample opportunity to

cross examine the petitioner on this aspect. In spite of that being

the position, the learned ARC has disregarded the said requirements

of the petitioner's wife on the ground that the said requirement had

not been specifically set out in the eviction petition. The

requirement of one room for the petitioner's assisting staff has not

been dealt with at all.

20. Learned counsel for the petitioner submits that, on the

face of it, there is a calculation error committed by the learned ARC.

He submits that the learned ARC has assumed the availability of,

inter alia, one study room/office and four bed rooms with the

petitioner as aforesaid. In fact there are only three bed rooms,

apart from the one room/office. This is because the room in the

back verandah shown as a room admeasuring 11.5' X 10' in the plan

Exhibit C-1 does not exist as it has had to be merged with the back

verandah. One room has been assigned for the petitioner and his

wife, one room has been assigned for his then unmarried daughter

who was residing with the petitioner, one room has been assigned

for visitors and one room has been assigned for office work. The

learned ARC held that even then there is one surplus room available

with the petitioner which could be used as a puja room. He submits

that this is patently wrong, as there are in fact only three bed rooms

with one study room/office. As opposed to the availability of the

said accommodation, the requirement of the petitioner is at least of

one room for himself and his wife, two rooms for his three married

daughters with their respective husbands and grand children, two

rooms for his office including his staff, one room for his wife's tuition

classes and one room for puja. Therefore the minimum requirement

of the petitioner is of seven rooms. As opposed to this the petitioner

has three bed rooms with attached bath rooms, and one

study/office.

21. Learned counsel for the petitioner also submits that the

respondent is holding on to the suit premises merely to harass the

petitioner and to extract money from him for vacating the tenanted

portion. He submits that the respondents are, in fact, not

occupying the suit premises for over a decade. He refers to the

photographs filed by the petitioner before the Supreme Court in

SLP(Civil) No. 5694/1998 which show the condition of the Barsati

Floor, where two rooms in occupation of the respondent are

situated. These photographs have been filed in these proceedings

as well.

22. He also refers to the telephone bills in the name of Sh.

Roshan Lal, the employee of the respondent, installed at the suit

premises which show that no calls have been made from the said

telephone connection for a long time. He even relies on the

tabulation filed on record with regard to the consumption of

electricity in the tenanted premises. The number of units consumed

is either zero or only a few units spread over the years.

23. On the other hand, Mr. Girdhar Govind, learned counsel for

the respondents submits that the accommodation available with the

petitioner is more than sufficient for his needs and the needs of his

family. At the time when the amended eviction petition was filed, of

the three, one of the daughters of the petitioner was unmarried.

Over the years, even she has got married and is not residing with

the petitioner. He submits that in these revision proceedings this

court cannot enter into appreciation or re-appreciation of evidence

merely because it is inclined to take a different view of the facts as

if it were a court of facts. The order of the Additional Rent Controller

has to be tested on the touchstones of "whether it is according to

law". It is only for this purpose that this court may enter into re-

appraisal of evidence, that is, for the purpose of ascertaining

whether the conclusion arrived at by the Rent Controller is wholly

unreasonable, or is one that no reasonable person acting with

objectivity could have reached on the available material. In support

of this proposition Mr. Girdhar Govind relied on the decision of the

Supreme Court in AIR 1988 SC 852 Hiralal Kapur Vs. Prabhu

Choudhury and AIR 1999 SC 2507 Shiv Sarup Gupta Vs. Dr.

Mahesh Chand Gupta.

24. Having heard the arguments of learned counsel for the

parties and having examined the impugned order, the record

including the testimony of the petitioner and having examined the

case law cited by the respondent, I am of the view that the

impugned order passed by the learned ARC is not according to law

and the same deserves to be set aside, and an eviction order

passed against the respondent.

25. The respondent was initially inducted as a tenant in the

property in question in the year 1971 by the father of the petitioner

Sh. J.R. Sethi at a monthly rent of Rs. 1200/-. Even according to the

respondent, in the year 1981 the respondent vacated a portion of

the tenanted premises and according to the respondent it continued

to remain in occupation of two bed rooms, one store room, one bath

room on the first floor, two barsati rooms, open terrace at the

barsati floor and the terrace above the garage block, one room,

open toilet and open terrace on a monthly rent of Rs.1,500/-.

26. The petitioner was a young man in 1971 when the premise

was let out by his late father. He served with the Indian Railways

and retired as Chief Mechanical Engineer on 30.09.1995. As he was

posted in Bombay at the time of his retirement, he shifted to Delhi

on 07.06.1996 along with his family and started residing with his in-

laws at 5-B, Link Road, Jangpura Extension on account of paucity of

accommodation in the said property, of which he became the owner

of the first floor with barsati and one half of the garage block after

the demise of his parents and on partition between him and his

brother Sh. R.C. Sethi. Since the petitioner was a retired

government servant, he invoked Section 14 (C) of the Delhi Rent

control Act and filed a petition for eviction of the tenant Ms. Neeru

Verma who was in occupation of three bed rooms with attached

bath rooms, drawing room, dining room, front verandah, back

verandah, kitchen and garage and one study room on the first floor

of the said property. The petitioner had already preferred an

eviction petition against the respondent as well, and during the

pendency of the eviction petition against the respondent, the

petitioner obtained the aforesaid portions from Ms. Neeru Verma.

Accordingly, the petitioner amended the eviction petition as the

portions vacated by Ms. Neeru Verma were still falling short for the

petitioner and his family to meet all his requirements.

27. The petitioner has deposed, and it has not been rebutted

that one room admeasuring 11.5 X 10 ft. in the back verandah was

lost on account of the removal of the wall and the said area was

merged with the back verandah. This was done as his brother Sh.

R.C. Sethi had removed the wall on the ground floor which was

taking the load of the wall on the first floor. The family of the

petitioner consisted of himself, his wife, his two married daughters

and sons in law and their children, and one unmarried daughter at

the time when the eviction petition was amended. In the meantime

his third daughter who was unmarried has also got married and is

residing in her matrimonial home.

28. The Rent Controller, despite it being brought on record

that the room admeasuring 11.5' X 10' was no longer available as it

was merged with the back verandah on account of removal of the

load bearing wall on the first floor, assumed existence of the said

room. This, in my view, was a conclusion which could not have been

derived on the basis of the testimony of the petitioner and this

assumption of the learned ARC, betrays lack of reason and

objectivity.

29. The learned ARC has also brushed aside the requirement

of the petitioner's wife of one room for holding tuition classes

merely on the ground that the same was not pleaded in the eviction

petition. No doubt, in a civil proceeding a party can prove only that

case which he has pleaded. However in my view, in proceedings for

eviction instituted under the Delhi Rent Control Act, and even more

so in proceedings for eviction on the ground of bona fide

requirement of a landlord and his family, this rule cannot be very

strictly applied for the simple reason that during the course of such

proceedings, which may take long years to get finally decided, there

are bound to be additions and deletion of family members with the

older generation passing away and the new generation coming up;

with children getting married, moving out for studies or for work,

and older generation retiring etc. It is not necessary that at every

stage one or the other party should amend his pleading to bring on

record such additions or deletions. The court can take cognizance

of such developments as they occur from time to time on the basis

of affidavits and testimonies.

30. The Supreme Court in Pasupuleti Venkateshwarlu v.

The Motor & General Traders AIR 1975 SC 1409 while dealing

with a case relating to eviction of a tenant governed under the Rent

Control Act rejected the argument that the High Court could not

have taken cognizance of subsequent events in the following

words:-

"4. We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that

the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief for the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice-subject, of course, to the absence of other disentitling factors or just circumstances............... We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. "

31. The said view has consistently been followed in

subsequent decisions. I may refer to one decision of this Court in

Anand Gopal Jhingran & Ors. V. Arjun Dev, 57 (1995) DLT 312,

which in turn places reliance on a earlier Supreme Court decision in

the case of M/s Variety Empire V. AIR 1985 SC 207. Though there

is authority to suggest that in Civil Proceedings subsequent events

should be incorporated in the pleadings of the parties (See AIR 2002

SC 665), that decision does not deal with a proceeding under the

Rent Control Legislation. It deals with a civil suit. It did not deal with

a situation like the present, wherein one party has led evidence

beyond his pleadings to incorporate subsequent events, without any

objection from the opposite side and the opposite side has even

availed of its right to cross examine the witness even with respect

to such evidence.

32. Section 37 of the Delhi Rent Control Act, inter alia,

provides:

"(1) No order which prejudicially affects any person shall be made by the Controller under this Act without giving him a reasonable opportunity of showing cause against the order proposed to be made and until his objections, if any, and any evidence he may produce in support of the same have been considered by the Controller.

(2) Subject to any rules that may be made under this Act, the Controller shall, while holding an inquiry in any proceeding before him, including the recording of evidence.

(3) ......................."

33. Therefore, the primary guideline laid down by the statute

is that the Rent Controller has to necessarily comply with the

principles of natural justice. The practice and procedure of a Court

of Small Causes, including relating to the recording of evidence has

been made applicable in respect of the proceedings before the Rent

Controller. This is subject to any Rules that may be made under the

Act. Rule 23 of the Delhi Rent Control Rules, 1959 states that "In

deciding any question relating to procedure not specifically provided

by the Act and these rules the Controller and the Rent Control

Tribunal shall, as far as possible, be guided by the provisions

contained in the Code of Civil Procedure, 1908". The use of the

expression "as far as possible, be guided by the provisions

contained in the Code of Civil Procedure 1908" shows that per se

the provisions of the Civil Procedure Code are not applicable to the

proceedings before the Rent Controller. However the procedure

prescribed in the Civil Procedure Code guides the procedure that the

Rent Controller may adopt "as far as possible". In my view, it may

not be possible, or at least it may not be feasible in all situations to

amend the pleadings, particularly where a petition for eviction has

been preferred on the ground of bona fide requirement because of

the nature of such proceedings. The relevant facts do not get fixed

on the date of filing of the petition and keep fluctuating with the

passage of time. The Act prescribes a special summary procedure

for such petitions in Section 25B, which is different from the

procedure adopted in the case of eviction petitions filed on various

other grounds under the Act. The insistence on amendment being

made in such proceedings to bring on record every subsequent

event would defeat the purpose of enacting Section 25B of the Act

as it is bound to delay the proceedings before the Controller. In any

event, if such an objection is not raised at the earliest by the

opposite party, the same cannot be permitted to be raised later on.

34. This Court in a recent decision reported as P.C. Jain and

Ors. V. J.K. Soni, 156 (2009) DLT 760 rejected the argument of the

tenant founded upon Order 2 Rule 2 C.P.C., by observing that the

Additional Rent Controller is not a civil court and that the provisions

of the Civil Procedure Code are not applicable to the Rent Controller

in toto. The Act provides for its own procedure for deciding eviction

petitions and is a complete Code in itself. The rules of procedure

have been framed under the Act. In paragraphs 7 and 8, the Court

observed as follows:-

"7. A perusal of Sections 36 and 37 shows that the Rent Controller has been vested with certain powers of not only civil court but also powers of criminal nature and the Rent Controller is a separate authority in itself. Section 37 provides the procedure to be followed by the Rent Controller has to be as per the rules made under the Act and the Controller for disposal of the matters before it has to adopt practice and procedure of small causes court. It is nowhere provided that the Rent Controller has to follow the Civil Procedure Code.

8. Even otherwise, the Delhi Rent Control Act is a piece of social legislation and it was enacted in order to protect the tenants from frivolous eviction petitions. At the same time, in order to do justice to the landlord and to avoid placing such restriction on their rights to evict the tenants as to destroy their legal rights to the property, certain salutary provisions have been made by the legislation to give relief to the landlord............................."

35. I may refer to the decision of this court in Gurcharan

Singh V. R.N.Chaudhary, 21(1982) DLT 477. The fact situation in

that case was very similar to the situation presented in this case.

The eviction petition had been filed by the landlord on the ground of

bona fide requirement u/s 14(1)(e) of the Act. In his examination,

the landlord had led evidence with regard to his financial status and

his physical condition, neither of which was pleaded in the eviction

petitioner either originally or by way of amendment. The Additional

Rent Controller dismissed the eviction petition filed by the landlord.

However the Additional Rent Control Tribunal reversed the said

decision by taking note of the fact that the landlord had suffered a

heart attack and was hospitalized and that he had even been

advised to reside on the ground floor, which was in occupation of

the tenant. Pertinently, even in that case, the Tribunal noticed that

the testimony of the landlord with regard to his suffering a heart

attack and his being advised to reside on the ground floor had not

been challenged by the tenant in his cross examination. Before this

Court the tenant, in his second appeal, contended that in the

eviction petition no details of his family had been mentioned by the

landlord; there was no mention of any illness of heart attack or

difficulty of age as a ground of bona fide requirement; no details

were at all mentioned as to the present accommodation available

with the landlord; no details of the status of the landlord were

disclosed. It was contended that the non disclosure of these facts

militates against the bona fide requirement of the landlord.

36. This Court considered the evidence led by the landlord

with regard to his status, business and income as well as evidence

brought on record with regard to the illness of the landlord. With

regard to the illness of the landlord, this Court held as follows:-

"25. This was a subsequent development. It is true that the landlord could have amended eviction petition to plead his ill- health also as a ground for eviction of the tenant but the fact remains that these were developments during the pendency of the eviction proceedings of which the tenants had full notice.

26. In view of the application of the landlord for his examination on commission, a Local Commissioner was appointed and the statement of the landlord was recorded on commission on 3-6-1974. In this statement, the landlord stated on oath that "recently I have suffered heart attack and doctors advised me not to come up and down. I am staying on the first floor because I do not have accommodation on the second floor." This statement on oath was not even challenged by the tenant in cross- examination of the landlord."

37. The argument of the tenant that as the aspect of

unsuitability of the existing accommodation with the landlord was

not pleaded, and without amendment of the petition subsequent

events relating to illness of the landlord could not have been taken

into account by the Tribunal, nor could evidence be led in that

behalf by the landlord was rejected by the court in the following

words:-

"28. There can be no doubt that in cases of ejectment on the ground of bona fide requirement of the landlord, the Court is entitled to take into consideration the developments that may have taken place till the time of passing of order of ejectment in order to mould the relief. It is also true that cases of illness must be proved by best evidence. The subsequent developments should, however, relate to the requirement of the landlord. It is another thing as to how

the subsequent developments should be pleaded and/or proved. As I stated earlier the petition for ejectment can always be amended but failure to amend the petition does not mean that the subsequent events cannot be considered. Rules of natural justice require that the tenant should have full notice about it and should have time and opportunity to rebut it. In the present case, much before the evidence of the tenant commenced, the illness of the landlord was brought to the notice of the court as well as of the tenant and that is why the landlord was allowed to be examined on commission. The landlord even deposed about it in his testimony and this was never challenged in cross-examination. Thus, no prejudice has been caused to the tenant by non-amendment of the ejectment application. In fact, when the evidence of the landlord was being recorded and he was deposing about his illness because of heart attack, no objection was taken on behalf of the tenant to the recording of such evidence. Nor was the fact of illness challenged, as stated earlier.

29. All rules of procedure, as has often been held, are for advancement of justice and it will be travesty of justice to deny the relief to the landlord at this stage." (emphasis supplied)

38. The court took into account the facts which were proved,

even without pleading and without any challenge raised by the

opposite party. [see also ILR (1980) Del 94, 1981 (17) RCR 697, 81

(1999) DLT 374, 549, 655].

39. Pertinently, in the present case even the respondent is

seeking to rely on one such event, namely, the marriage of the third

unmarried daughter of the petitioner during the pendency of these

proceedings to say that her requirement no longer subsists for one

dedicated room in the suit premises. This subsequent fact has

neither been pleaded nor proved on record by either party.

40. In my view, what is crucial in such proceedings is that no

party should be taken by surprise, and every party should have

sufficient opportunity to meet the case of the other. Pertinently,

when the petitioner led his evidence, and in his examination in chief

(which was conducted in open Court) put forth the requirement of

the petitioner's wife for one room for holding tuition classes and his

own requirement of one room for his staff assisting him in his office,

the said testimony was not objected to on the ground that the same

was beyond pleadings. Even more pertinent to note is the fact that

the respondent cross-examined the petitioner on the first aspect

and even at that stage did not confront the petitioner with the lack

of any pleading in this regard. On the second aspect there was no

cross-examination at all. The fact that the testimony of the

respondent's witness has been rejected is a separate issue, but

what is important note is the fact that the respondent did not

venture to lead any evidence of its own to meet the requirement for

the petitioner's wife as disclosed in the petitioner's evidence or his

own requirement for another room for his staff in his office.

41. The requirement of the petitioner's wife for one room to

hold tuition classes has to be viewed in the light of the fact that she

is a qualified teacher having attained the necessary educational

qualification. It has also to be viewed in the light of the fact that she

had been teaching in schools in Delhi and Bombay. The petitioner

had deposed that even after coming to Delhi, his wife had started

taking private tuition classes. The petitioner also stated that she

was showing her income from private tuitions in her income tax

returns which she is filing. The petitioner had retired as aforesaid

and, therefore, to gainfully utilize her time and also add to the

family's income, it is not unnatural for the petitioner's wife to

continue to take tuition classes and pursue her teaching career

while residing in the portion in the petitioner's occupation. This

stand of the petitioner is highly probable and there is no reason not

to believe the same.

42. Similarly, the requirement of the petitioner of two rooms

for his office-one for his own consultation room and one for his staff

should have been viewed in the light of the fact that the petitioner

being a Consultant Engineer requires a room for himself where he

can entertain his clients, hold discussion and give consultation.

Being a Mechanical Consultant Engineer, it is reasonable to assume

that he would have other skilled and clerical staff working under

him. They possibly cannot be accommodated in the same office

room as that that of the petitioner. The requirement of space to

keep office equipment such as computers, printers, fax machine

etc., also has been ignored by the learned ARC even though the

petitioner had led evidence to show that he requires one room for

himself and one room for his staff/equipment. There was no reason

to disregard the testimony of the petitioner in this regard.

43. The petitioner had amended the eviction petition some

time after the portion of the suit property was vacated by the

erstwhile tenant, Ms. Neeru Verma. It appears only after having

settled down in the premises vacated by Ms. Neeru Verma, the

respondent's wife has taken up the task of imparting tuitions upon

discovering the potential for imparting tuition of children in the

neighourhood. Similarly, it appears that only upon actual use by the

petitioner of the premises available with him for his office purpose,

he felt the need for a separate room to accommodate his staff and

computers etc.

44. Therefore, in my view, the learned ARC has erred in law in

disregarding the testimony of the petitioner with regard to the

requirement of one room for his wife to hold tuition classes and his

own requirement of two rooms for running his office. The order

passed by the learned ARC, in my view, has led to miscarriage of

justice and the same is, therefore, not in accordance with law.

45. The learned ARC has also not taken into account the fact

that the petitioner and his wife being retired persons would need

frequent visits by his three married daughters, son-in-laws and

grand children who have also grown up since the time of filing of the

eviction petition. Their requirement cannot be pegged down at only

one room. Whenever they visit them, they would require at least

two rooms. Viewed in the aforesaid light, I am of the opinion that

the reasonable requirement of accommodation of the petitioner is:

(1)One room for himself and his wife; (2) two rooms for his three

married daughters, son-in-laws and grand children as and when one

of them visits the petitioner. This requirement could get heightened

if more than one married daughter decides to visit the petitioner at

the same time; (3) two rooms for the petitioner for running his office

- one room for himself and one for his staff, office equipment etc.,

(4) one room for the petitioner's wife to be able to run her tuition

classes; (5) One puja room. Apart from the aforesaid, the petitioner

requires one drawing room, one dining room, kitchen. He already

has these other areas available with him. Consequently the

minimum requirement of the petitioner is seven rooms. As opposed

to this, even according to the learned ARC he has four rooms

available with him i.e. three bed rooms and one office room. He is

short of at least three rooms.

46. Consequently I am of the view that the impugned order

passed by the learned ARC cannot be sustained as the same is not

in accordance with law - the learned ARC having failed to apply the

settled legal principles and having arrived at a wholly unreasonable

conclusion which in my view, no reasonable person acting with

objectivity could have reached on the basis of the material available

on record. The learned ARC has ignored the weight of the evidence

and has proceeded on a wrong premise of law and has arrived at

his conclusions on the basis of established facts which betray the

lack of reason and/or objectivity. The eviction petition filed by the

petitioner is allowed. The respondent is granted six months time to

vacate the suit premises. The petition stands allowed with costs

quantified at Rs.25,000/-.

(VIPIN SANGHI) JUDGE SEPTEMBER 15, 2009 as/dp