Baley Pershad vs Anil Kumar & Ors.
2011 Latest Caselaw 5791 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment reserved on: 24.11.2011
                       Judgment delivered on: 29.11.2011

+                RC.REV. No. 76/2009

BALEY PERSHAD                               ..... Petitioner
                       Through:   Mr.L.K.Singh and Mr.Sonal
                                  Sinha, Advocates.

                 versus


ANIL KUMAR & ORS.                      ..... Respondents
                       Through:   Mr.Vinod Sharma and
                                  Ms.Rashmi Pandey, Advocates.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1. The judgment impugned before this court is the impugned

judgment dated 25.07.2009 wherein the eviction petition filed by

the landlord under Section 14(1)(e) of the Delhi Rent Control Act

(DRCA) had been dismissed.

2. Record shows that the present eviction petition has been

filed by the landlord against his tenant; the suit premises which

have been tenanted out to the tenant comprise of one room and

one kitchen on the ground floor of the premises bearing No.

345A, Ward No. 19, Kishan Ganj, Gali No. 1, Bagh Kare Khan,

Delhi; the tenant is occupying the suit premises at a monthly rent

of Rs. 14/-. Contention of the landlord is that the premises are

required by him bonafidely for himself and his family members

who are dependent upon him who comprise of his three sons of

whom one is married and two married daughters who regularly

visit him. The accommodation which is presently available with

him is not sufficient for his need; present eviction petition has

accordingly been filed.

3. In the written statement these facts were disputed;

contention was that the petitioner is not the landlord of the

premises bearing No. 345A, Ward No. 19, Kishan Ganj, Gali No. 1,

Bagh Kare Khan, Delhi from where the eviction has been sought;

further, he has sufficient accommodation with him; details have

been given in the written statement.

4. Oral and documentary evidence was led. The Rent

Controller on 14.05.2002 had granted conditional leave to the

tenant to defend the suit; only to the extent of proving bonafide

requirement of the suit premises of the petitioner. No other

ground was permitted to be taken by the tenant. The order dated

14.05.2002 has since attained finality and this submission made

by the learned counsel for the petitioner that the tenant had been

permitted only leave to contest to the extent of proving bonafide

requirement of the suit premises by the petitioner, is also not

disputed.

5. Counsel for the petitioner has vehemently argued that the

impugned order has noted that if the need of the sons of the

landlord are taken into account there is admittedly a paucity of

accommodation but has adverted to rely on an admission made by

the AW1 (son of the landlord) wherein he has admitted although

the father of the AW1 (landlord) is dependent upon his sons but

the sons are not dependent upon him for their residence and

livelihood; contention being that this is a misconstruction of the

evidence of AW1 which has not been appreciated in the correct

perspective; admittedly, the father and the three sons are living in

a joint family and this is in fact the averment made by the tenant

in the written statement itself; if the parties are living in a joint

family and the landlord-father is a senior citizen aged about 70

years and the sons having no other independent accommodation,

it is difficult to imagine that the sons are not dependent upon their

father for their residence. This interpretation by the Additional

Rent Controller has caused a manifest injustice to the petitioner

which finding is liable to be set aside.

6. Arguments have been refuted; it is submitted that the

impugned judgment in no manner suffers from any infirmity as the

admission of the AW1 was clear and categorical which was to the

effect that the sons of the petitioner i.e. of the landlord/owner

were not dependent either for their residence or for their

livelihood upon their father.

7. The crux of the matter by and large boils down to the

testimony of this witness i.e. AW1; AW1 is the son of the landlord;

he has on oath deposed that he is holding a special power of

attorney of AW1/1- his father Sh. Baley Pershad and because of

his illness, his father was not able to come into the witness box; he

has proved the sale deed of the property Ex.AW1/2 to substantiate

his ownership in the suit property. Even otherwise as noted supra,

in view of the order of the ARC granting conditional leave to the

tenant to defend the eviction petition, the question of ownership

does not have to be gone into. In fact no ingredient of Section

14(1)(e) of the DRCA has to be seen except whether there is a

bonafide need for the landlord for himself or any dependent

member of his family and/or he has no other reasonable and

suitable accommodation with him.

8. AW1 in his cross-examination has stated that the need of the

landlord is of 9 rooms which are required as there are 9 members

in the family; further part of the cross-examination states that his

father is jobless but earlier he was doing business of stocks; still

earlier he was selling Kiryana goods; his brother Ajay is confined

to the house because of an accident; he was earlier working in a

car factory and was earning Rs.3,000/- per month; his other

brother Anil is working in Maharaja White Line and is earning Rs.

2500-3000/- per month; there is no other source of income in the

family; there is only one refrigerator, two coolers; beside that

there is no other luxury item. The relevant part of the cross-

examination which has been highlighted by both the counsels to

substantiate their respective submissions reads as:

"It is correct that my father is dependent upon his son for residence and for livelihood. His sons are not dependent upon the petitioner."

There is no dispute to the proposition that no one line of a

deposition of a witness can be extracted from the rest of his

testimony to read it in a manner in which one or the other party

wants the court to read; the entire gist of the testimony of the

witness has to be appreciated; his testimony has to be read as a

whole and in entirety from which what the witness intents to state

has to be gathered.

A reading of the examination-in-chief [i.e. the affidavit by

way of evidence of this witness (son of the landlord)] and his

cross-examination clearly show that the parties were living in a

joint family where their father also a senior citizen was earlier

selling Kiryana goods and since then he is living a retired life in

the house; Ajay is the married son where as the other two sons are

yet to be married; one son has been confined to the house because

of an accident; other brother is working in a factory. In the

written statement also the averment has emanated that this is a

joint family and the family has a joint kitchen; this fact has even

otherwise not been negatived. In these circumstances, this

statement of witness AW1 which has been extracted to form the

sole basis of the judgment by the ARC holding that this admission

of AW1 that the sons are not dependent upon their father either

for their residence or livelihood has clearly been misconstrued

and mis-interpretated. In the body of the judgment after

discussing the entire evidence, the ARC has concluded that if the

need of the sons of the landlord is taken into account a clear case

of paucity of accommodation is made out. Refusing relief only

relying upon the aforenoted sentence in the cross-emanation

suffers from an illegality.

9. The site plan Ex. AW1/4 filed by the landlord shows that the

disputed property in property No. No. 345A, Ward No. 19, Kishan

Ganj, Gali No. 1, Bagh Kare Khan, Delhi comprises of one room

with one tin-shed; there are three other rooms and two kitchens

depicted in this site plan. In the second site plan (also Ex. AW1/4)

which is of property No. 345, Ward No. 19, Kishan Ganj, Gali No.

1, Bagh Kare Khan, Delhi one room, kitchen and one shop have

been depicted besides two rooms which have been show in the

site plan to be dilapidated and damaged and not in use or in

occupation of any person. The accommodation available with the

landlord is thus four rooms and three small kitchens; the kitchens

are much smaller in size than the rooms; even presuming the

submission of the tenant that these kitchens are in fact being used

as rooms and only one kitchen is required for the joint family

even then total rooms available with the landlord would be five

rooms, one kitchen and one shop; even if this shop is used as room

it would be six rooms and one kitchen. Petitioner has categorically

deposed that his need for himself and his family members is of

nine rooms; the accommodation available with him is short of his

requirement. The bonafide need of the landlord has been made

out; the trial court rejecting the eviction petition has committed

an illegality which has caused an injustice to the petitioner;

interest of justice demands that the said manifest illegality be

rectified. The impugned order is accordingly set aside; eviction

petition is decreed.

10. Petition disposed of.

November 29, 2011                        INDERMEET KAUR, J.
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