Joti Prasad Gongel vs Chand Bihari Lal (Decd) Thru Lrs.
2011 Latest Caselaw 5743 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                Date of Judgment: 28.11.2011


+                      RC.Rev. 99/2009

JOTI PRASAD GONGEL
                                                     ...........Petitioner
                            Through:   Mr. S.D. Dixit, Advocate.

                       Versus


CHAND BIHARI LAL (DECD) THRU LRS.
                                                    ..........Respondent
                            Through:   Mr. S.P.Jha, Advocate.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1. The landlord-Jyoti Prasad Gongel has filed the present

eviction petition under Section 14(1)(e) of the Delhi Rent Control

Act (DRCA). The Additional Rent Controller (ARC) after granting

leave to defend to the tenant had permitted the parties to lead

evidence; the landlord in support of his case had examined himself

as AW1; AW2 was the superintendent from M/s Instrumentation

Limited i.e. the company where his son Yogesh Gongel was

purportedly working. AW3 was the Computer Operator from the

Bank of Baroda. The tenant in support of his case had examined

nine witnesses; RW-1 was Mohd. Rafiq himself. RW2 and RW3

were the officers i.e. the Record Clerk and Record Keeper from

the MCD who had brought the summoned record; RW3 had

produced his house tax record of the disputed property i.e.

property bearing No. 2622-2639, Nai Sarak, Delhi evidencing the

fact that the premises since 1960-67 was being used for

commercial-cum-residential purpose. RW9 was also from the

House Tax Department; RW5 the summoned witnesses from the

Custodian of Evacuee property Cell had deposed that the purpose

of letting of the said property is for an office-cum-residence. RW4

and RW6 had produced the record from the Delhi University to

substantiate the submission that Chand Behari Lal was a law

graduate. RW7 and RW8 living in the vicinity of the property had

deposed that the property is a three storied building.

2 Record shows that the petitioner is the owner of the

disputed premises. The disputed premises are comprised of two

rooms, one tin-shed, bathroom and latrine on the first floor and a

tin-shed on the second floor of the property bearing No. 2633, Nai

Sarak, Delhi. AW1/1 was the sale certificate issued by the

Custodian of Evacuee Property Cell evidencing the purchase of

this property by the petitioner; the respondent has in fact not

disputed the contention of the petitioner that he had purchased

this property in the year 1964; testimonies of AW1 and RW1 had

also evidenced that tenant Mohd. Rafiq had not disputed the

landlord and tenant relationship. Ownership of the suit premises

has thus been proved before the ARC.

3. The Additional Rent Controller had also noted that although

the premises had been taken for a commercial purpose but in view

of the judgment of the Supreme Court reported in III (2008) SLT

553 titled as Satyawati Sharma vs. Union of India the distinction

between residential and non-residential has lost its significance

and the objection of the tenant that the premises having been let

out for the commercial purpose would not fall within the ambit of

Section 14(1)(e) of the DRCA had been rejected.

4. Both these issues were decided in favour of the landlord.

Landlord had however lost out before the ARC on his plea of bona

fide requirement. The case set up by the landlord in his eviction

petition is that he is the owner, landlord of the disputed premises

and the respondent Mohd. Rafiq is a tenant of the said area as

noted (supra). Premises had been let out for a residential purpose;

they are required bonafidely by the petitioner for himself and his

family members who are dependent upon him for their residence.

The contention in the eviction petition was that the family of the

landlord- Jyoti Prasad Gongel comprises of himself, his wife and

two sons; petitioner was at that time residing at 303 A, Pocket II,

Mayur Vihar, Delhi a rented premises where he was paying a

monthly rent of ` 950/-; his elder son Yogesh Gongel is married;

his younger son is also of marriageable age; he has a married

daughter who often comes to visit the petitioner; his wife is

working in Choori Walan and the aforenoted premises which are

located at Nai Sarak, Delhi are even otherwise suitable and

convenient for her to travel to her work place; petitioner has no

other accommodation; the premises are required bonafidely for

himself and for the aforenoted family members who are

dependent upon him.

5. Written statement had been filed by the tenant; in the first

instance, he had denied the ownership; dispute was also raised

about the purpose of letting. Both these issues as noted supra

have been decided in favour of the landlord; it is the landlord who

is in appeal before this court not the tenant; it is not necessary for

this court to delve into these issues any further, those having

already been decided in favour of the landlord.

6. The only issue which arises for consideration before this

court is as to whether the need of the landlord Jyoti Prasad Gongel

was a bona fide need at the time when he had filed his eviction

petition; i.e, if he had no other alternate accommodation at that

time. As noted supra three witnesses have been examined by the

landlord and nine witnesses have come to the witness box on

behalf of the respondent.

7 Record has been perused. There is no dispute about the

ownership of the suit premises which had been purchased by the

landlord namely Jyoti Prasad Gongel vide Ex.AW-1/1 (a registered

sale deed of the year 1963); present eviction petition has been

filed in the year 1986. There is also no dispute that the landlord

had purchased a plot of land measuring about 138 sq. yards

bearing no.S-17, School Block, Shakar Pur, Delhi on 16.12.1988

upon which construction was raised; his contention was that he

could not shift to this property because of astrological advise; he

had sold this property to his daughter namely Indu Singhal vide

general power of attorney which he has proved as Ex.1/X-1; this

document has been examined by the court below; admittedly a

general power of attorney does not transfer any interest in

immovable property; further the fact that this property had been

purchased by the landlord on 26.12.1988 upon which a

construction has been raised of a three storied building and which

had then purportedly been sold to his daughter on 01.5.1991 were

all facts which were hidden and concealed from the court of the

Additional Rent Controller where this eviction petition was

pending. Eviction petition was admittedly filed in the year 1986;

the trial court relying upon evidence both oral and documentary

has rightly concluded that this property which was admittedly a

built up three storied structure has been concealed as had this

fact been brought to the knowledge of the court the bonafide need

of the petitioner would then be effected; there was no other

reason why this fact had not been informed to the court; this

alternate accommodation was thus available with him. The further

submission of the landlord that he had sold this property to his

daughter Indu Singhal when admittedly the name of his daughter

was Mridula Singhal; contention being that Mridula Singhal

having got married to Sashank Singhal had after marriage

changed her name from Indu Singhal to Mridula Singhal was not

supported by any documentary evidence; even presuming this

position to be correct that the person of Mridula Singhal and Indu

Singhal are one and the same yet even then a general power of

attorney (Ex.AW-1/X1) qua this property i.e S- 17, School Block,

Shakarpur, Delhi did not definitely create any transfer of property

in favour of Indu Singhal.

8 To rebut this submission of the landlord that Indu Singhal

had purchased this property from her father; RW-9 had come into

witness box who was a witness from House Tax Department who

had on oath deposed that notice under Section 131 of the DMC

Act had been issued in the name of Jyoti Prasad Gongel; so also

another demand notice under Section 126 of the DMC Act; this

documentary evidence had been proved as Ex.PW-9/1 to Ex. PW-

9/4; house tax bills as also survey report of this property also

showed that this property continued to be vest in the name of Jyoti

Parsad. This was also admitted by Jyoti Prasad Gongel when he

came into witness box in his capacity as AW-1.

9 This property i.e. S-17, School Block, Shakarpur, Delhi was

admittedly in physical occupation of the elder son of the petitioner

namely Yogesh Gongel; further contention of the landlord being

that his daughter Indu Singhal had created a company lease deed

10.6.1999 in favour of M/s Instrumentation Ltd. and Yogesh

Gongel being an employee of M/s Instrumentation Ltd. had been

to permitted to occupy this property; to substantiate this

submission AW-2 has come into witness box to prove the company

lease. In this context AW-1 had deposed that vide lease deed

dated 10.6.1991 his daughter Indu Singhal had leased out this

property to M/s Instrumentation Ltd where his elder son Yogesh

Gongel was an employee. These lease deeds, Ex.AW-2/1 and

Ex.AW-2/2, however, do not state that Indu Singhal is the owner of

this property which fact also has been admitted by AW-1 in his

cross-examination. The employment of Yogesh Gongel with M/s

Instrumentation Ltd was also not substantiated by any document;

admittedly Yogesh Gongle was in physical occupation of the

property but his contention that he was in occupation as a

employee of the M/s Instrumentation Ltd. was not substantiated.

He is admittedly the son of the landlord Jyoti Prasad Gongel and if

he was not occupying this property in his capacity as an employee

of M/s Instrumentation Ltd. the next obvious corollary is that he

was in possession of this property in his capacity as the son of his

father who continued to remain the owner of this property. This

fact was deliberately concealed by the father. Trial court had

rightly noted that had this fact been brought to the knowledge of

the court the bonafide need o the landlord would be effected. A

man who comes to the court must come with clean hands and if he

does not; he deserves little sympathy from the court. Court has

also noted the contention of Yogesh Gongel that he had resigned

in the year 1988 which averment was contradicted by the

documents Ex.AW-1/X-2 and Ex.AW-1/X-4.

10 Contention that Indu Singhal and Mridula Singhal are one

and the same person had also not been substantiated by any

documentary evidence; Indu Singhal even otherwise did not

derive any interest in the property S-17, School Block, Shakarpur,

Delhi by virtue of a general power of attorney alone; lease deed

dated 10.6.1969 leasing out the property to M/s Instrumentation

Ltd. also does not speaks of her as an owner. All this shows

nothing but the inevitable conclusion that this property continued

to be retained by Jyoti Prasad Gongel; he had not effected any sale

of the said property; the municipal records also negatived this

submission; the physical occupation of the property continued

with Yogesh Gongel which was not in his capacity as an employee

of M/s Instrumentation Ltd. but as son of the owner namely Jyoti

Prasad Gongel.

11 Reliance by the learned counsel for the petitioner on the

judgment reported in 2009 VIII AD (Delhi) 445 Mukesh Kumar Vs.

Rishii Prakash is misplaced. This was a case where leave to

defend had been refused as the bonafide requirement of the

landlord had been made out and no triable issue had been raised

by the tenant. Parameters of that case are clearly distinct as also

the ratio deduced therefrom.

12. Interference in a revision petition is called for only if there

is a manifest error on an illegality which has emanated from the

record which is not so in the instant case. Impugned order

dismissing the eviction petition in these circumstances suffers

from no infirmity.

13     Dismissed.



                                      INDERMEET KAUR, J
NOVEMBER 28, 2011
rb/nandan