M/S. Benson Shoes vs Sh. Chunni Lal Takkar
2010 Latest Caselaw 701 Del

 *                    IN THE HIGH COURT OF DELHI AT NEW DELHI

+               Rc. Revision No.22 of 2010 & C.M. Appl. Nos.1764-1765 of 2010

%                                                                                08.02.2010

         M/S/. BENSON SHOES                                        ......Petitioner
                                       Through: Mr. Sandeep Sethi, Senior Advocate with
                                                Mr. Mahender Rana, Advocate.

                                            Versus

         SH. CHUNNI LAL TAKKAR                          ......Respondent
                             Through: Mr. Parminder S. Goindi & Ms. Gurmeet
                                      Kaur Kapoor, Advocates.

                                                         Date of Reserve: 4th February, 2010
                                                          Date of Order: 8th February, 2010

         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the judgment?

2.       To be referred to the reporter or not?

3.       Whether judgment should be reported in Digest?

                                      JUDGMENT

1. By this revision petition, the petitioner has assailed order dated 8th October, 2009

passed by the learned Additional Rent Controller dismissing an application under Section

25 B (4) of Delhi Rent Control Act made by the petitioner for seeking leave to defend the

eviction petition.

2. Brief facts relevant for the purpose of deciding this petition are that the petitioner

is a tenant in respect of one shop on the ground floor of property No.6/51, WEA, Karol

Bagh, New Delhi. The shop was being used as a godown. The respondent-landlord is

living in rest of the property along with his entire family including his sons, grandsons

and their children. The respondent filed eviction petition under Section 14 (1) (e) stating

that the accommodation in the occupation of himself and his family members was not

sufficient and he required the tenanted premises for the bona fide use of his family. The

landlord filed site plan of the three floors of the property and gave description of his

entire family along with family tree living in the premises.

3. The tenant in his leave to defend took a stand that since the site plan was

photocopy of the blue print, he was not in a position to read the site plan and not in a

position to challenge the site plan. The other plea taken by the tenant before learned

Additional Rent Controller was that the landlord and his family members were having

other properties and if he was given a chance (that is leave to defend), then he shall prove

other properties owned by the landlord. Next ground taken was that all the family

members of the landlord were not living with him and some of them had taken separate

accommodation and if he was given a chance, he would prove this. The next ground

taken by the tenant was that the accommodation already available with the landlord and

his family in the building was sufficient and the shop in occupation was not required bona

fidely by the landlord.

4. Learned Additional Rent Controller observed that the defence raised by the

petitioner-tenant were vague and frivolous and he was not entitled for leave to defend.

5. As far as the site plan is concerned, the tenant has filed the same site plan in this

court and the site plan is quite legible and the arguments have been addressed on the same

site plan. The same was the observation of the learned Additional Rent Controller before

whom the tenant had raised issues regarding sufficiency of accommodation relying upon

the same site plan. This plea was rightly rejected by the trial court and has not been

pressed before this court. Similarly, the other two pleas regarding landlord having other

properties or his family living in other properties (addresses of properties not disclosed by

the tenant) were not pressed before this court. One plea pressed before this court was that

the accommodation available with the landlord was sufficient and the premises in

question was not bona fidely required and the second plea raised before this court was

that in any case since it was a case of additional accommodation being asked by the

landlord, the tenant was entitled for leave to defend in view of Santosh Devi Soni Vs.

Chand Kiran; (2001) 1 SCC 255 and S.M. Mehra Vs. D.D. Malik; (2001) 1 SCC 256.

6. The site plan of the property, which is not in dispute, shows that the landlord had

three living rooms at ground floor, four living rooms at first floor and two living rooms at

second floor apart from kitchens, bathrooms, store rooms, open space, varandha and

lobby. The petitioner contended that the accommodation available with the landlord were

seven rooms at ground floor, five rooms at first floor and five rooms at second floor.

7. It is well settled law that only a room which measures 100 square feet or more is

considered a habitable living room. A room which is less than 100 square feet cannot be

used as a living room even as per municipal bye-laws and can only be used as a store

room or other purpose room. The seven rooms counted by the petitioner at ground floor

included two store rooms, one kitchen and a puja room; one store room is 8 ft. x 6.5 ft.

and the other store room is 10.5 ft. x 8.5 ft. and kitchen is 7.5 ft. x 5 ft. The puja room is

smaller than kitchen even. Thus, none of these small cubicles being used as store, kitchen

or puja room can be counted as living rooms. Even otherwise, kitchen, store rooms, etc.,

are essential part of a family's living and cannot be counted as living rooms under any

imagination and it cannot be said that the respondent was having seven rooms on ground

floor. Thus, the plea taken by the learned counsel for the petitioner before this court that

the respondent was having seven rooms on ground floor is totally baseless.

8. On the first floor, there are four living rooms, a lobby and a kitchen. The

petitioner has counted lobby as a separate room and stated that there were five rooms. It

is also settled law that if doors of different rooms open in a place and the place is used as

a passage by the occupants of different rooms, the place cannot be termed as a room. A

room is a place where a person can live in privacy. If other occupants of the room have to

pass through the place that cannot be termed as a living room. Thus, lobby in which

doors of other rooms open under no circumstances can be called as a room. Thus, the

rooms available on first floor are only four rooms. On second floor, there are only two

habitable rooms; one is kitchen, other is toilet and one is store room. Rest of the area is

open except that there is a varandha. The petitioner has claimed that there were five

rooms on second floor. He has counted kitchen, store room and varandha also rooms

which is not permissible under law. Thus, the total accommodation available to the

respondent's family is three rooms on ground floor, four rooms on first floor and two

rooms on second floor.

9. Now let us see what is the family of the respondent. It is not in dispute that entire

family of the respondent lives in this entire premises. The respondent himself is aged

around 80 years. He had three married sons; one of his sons had died in the year 1996

and other son died during pendency of the proceedings. His eldest son, who died, left

behind a widow and two sons. His eldest son's first son is married and has a wife and a

minor daughter. His eldest son's second son is married and has a wife and two minor

children. His second son, who died during pendency of the proceedings, left behind a

widow and a son aged around 25 years. His third son had wife and three children, who are

unmarried; two sons aged 25 years and 15 years respectively and third is an unmarried

daughter aged 21 years.

10. If we look at the reasonable and genuine requirement of this family, the

respondent himself requires one room. Respondent's first son's widow would require one

room. Respondent's first son's son, his wife and minor daughter would require at least

one room. His deceased son's second son, wife and two minor children would require at

least two rooms. His second son's widow would require one room; second son's

unmarried son aged 25 years would require one room. Respondent's third son and his

wife would require one room. His third son's unmarried son aged 25 years would require

one room and third son's unmarried daughter aged 21 years would require one room and

third son's second son aged 15 years would require one room. The family would also

require at least one drawing room, one guest room and one children room. The total

minimum requirement of this family even as per reasonable standard of living would be

fourteen rooms.

11. Undisputedly, the family has squeezed itself into the available accommodation.

Presently, son aged 25 years is living with his mother in one room. The entire family of

one grandson consisting of two minor children, wife and husband are living in one room.

Two unmarried brothers aged 25 years and 15 years are living in one room. Thus,

somehow the family has squeezed itself in whatever accommodation was available. The

family is not having any drawing room, any guest room or children room because they do

not have spare rooms. Thus, the room in occupation of the petitioner, who is a tenant,

was badly required by the family. It is not a case of additional accommodation being

asked by the family which was having already sufficient accommodation with it. It is a

case where family had been compelled to squeeze itself in the available accommodation

because it could not earlier file an eviction petition against the petitioner and get the

premises vacated for their use and occupation and it could file eviction petition only after

decision of the Supreme Court in Satyawati Sharma's case. Thus, the judgment cited by

the petitioner is of no help to the petitioner. The respondent's requirement of the

accommodation is genuine, dire and highly bona fide. It is not a case where the

accommodation was being sought just for the sake of it. The accommodation was being

sought because the premises was bona fidely needed by the family. It has also been

pleaded by the respondent that one of the unmarried grandsons was aged 25 years and he

was likely to be married and a room would be required for him and his wife.

12. I consider that the trial court rightly dismissed the application under Order 25 B of

Delhi Rent Control Act. There is no force in this revision petition. The petition is hereby

dismissed.

SHIV NARAYAN DHINGRA J.

FEBRUARY 08, 2010 'AA'