Sunita Bhagat & Anr vs Hc Seth Decd Thr Lrs
2012 Latest Caselaw 2796 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment:27.04.2012

+     RC.REV. 345/2011 & CM No.16178/2011

      SUNITA BHAGAT & ANR                         ..... Petitioners
                  Through              Mr. Rohan Thawani, Adv.

                    versus

      HC SETH DECD THR LRS                        ..... Respondent
                    Through            Mr. Anil Sharma, Adv.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 Impugned judgment is dated 29.01.2011 vide which the eviction

petition filed by the landlord-H.C. Seth seeking eviction of his tenant

from the disputed premises i.e. residential property bearing No. K-32,

First Floor, Jangpura Extension, New Delhi comprising of one drawing

room cum dinning room, three bedrooms with two attached bathrooms,

kitchen and canopy had been ordered to be evicted under Section

14(1)(e) of the Delhi Rent Control Act (DRCA) in favour of the

landlord. This was after a trial.

2 Record shows that the present eviction petition has been filed by

the landlord on the ground of bonafide requirement; contention is that

the premises are required bonafide for the residence of the family

members of the petitioners which comprises of four petitioners;

Petitioner No. 1 has two sons and one daughter [petitioner No. 2 & 3

and petitioner No. 4(married)]: petitioner No. 2 has one son and one

daughter aged 15 years; petitioner No. 3 has two children and petitioner

No. 4 although married but often visits the house to stay with her

mother (petitioner No.1). Petitioner No. 1 has developed health

complications and cannot climb stairs; the accommodation presently

available with the petitioners consist of one drawing cum dinning room,

three bedrooms, one study room and a kitchen on the ground floor; the

second floor consists of one half drawing room with cement sheet, one

room with cement sheet and one room with RCC roof; this is only a

temporary structure; one room on the ground floor is occupied by the

petitioner No. 1 and the second room on the ground floor is occupied by

the family of the petitioner No. 3( the son of the petitioner No. 1); third

room on the ground floor is used by the daughters of the petitioner No. 3

who are school going and they have no individual space to study; study

room on the ground floor has been given to the maid servants who stays

with their family. Because of the advanced age of petitioner No. 1 and

also the fact that she spends a large part of her day in pooja and

meditation, her relatives including her sister-in-law (who has strained

relations with her son) has also started living with petitioner No. 1 since

March 2004; the accommodation presently available with the family of

the petitioner is highly insufficient

3 The first floor of as aforenoted is thus required by the petitioners

for their family i.e. the family of petitioner Nos. 1 to 3; the

accommodation required for their family is one bedroom for the

petitioner NO. 1, one bedroom for the petitioner No. 2, one bedroom for

the petitioner No. 3, one bedroom for the petitioner No. 4 (daughter of

the petitioner NO. 1) who often visits her mother, two bed rooms for the

grand-daughters of petitioner No. 1, one puja room, one guest room, one

drawing cum dinning room and one room for two maid servants;

accordingly, the family members of the petitioner require a house of

rooms. Accommodation presently available with the petitioners as noted

supra is highly insufficient.

4 Written statement was filed; these contentions were disputed; the

plea of res judicata had also been raised.

5 It is not in dispute that the petitioners had filed earlier eviction

petition under Section 14(1)(e) of the DRCA which had been dismissed

by the Additional Rent Controller (ARC) on 19.07.1997 on the ground

that the premises have been let out for a residential-cum-commercial

purpose and since at that time the distinction between residential-cum-

commercial purpose was being maintained, the petition was dismissed

on the ground of as being not maintainable. This order dated 19.07.1997

was upheld by the High Court on 29.09.2000 wherein it was noted that

the purpose of letting is residential cum commercial.

6 There is no dispute to the fact that the judgment of Satyawati

Sharma vs. Union of India reported in (2008) 5 SCC 287 was delivered

on 16th April 2008 wherein the distinction between residential and

commercial premises for eviction under Section 14(1)(e) of the DRCA

has been brought to a close. There is also no dispute to the factum that

prevailing legal position has to be taken into account even in pending

eviction proceedings. Thus, on this count the objection of the tenant is

wholly irrelevant.

7 The bona fide requirement of the petitioners has been established

in the version of PW 1 who the petitioner No. 1 who has reiterated all

the averments made on oath; it is not disputed her elder son Rajesh Seth

has two children aged 17 years and 15 years and her younger son Amit

Seth has two daughters and her married daughter (petitioner NO.4) often

visits the house; it is also not in dispute that the family has two maid

servants; these facts not being disputed, the Trial Court had rightly

drawn the conclusion that the requirement of the family of the

petitioners is a minimum of 7 rooms. The accommodation presently

available with them is insufficient comprising of three bed rooms with

two attached bathrooms, one drawing room cum dinning room, one

kitchen and one study room which is being used by the maid servants of

the petitioners; this portion is located on the ground floor. The disputed

premise is on the first floor. It is also not in dispute that the family of

petitioners has no other accommodation. Testimony of RW1 who is the

sole witness on behalf of the respondent has also been tested in the

correct perspective

8 Record shows that the requirement of the petitioners for their

family members is minimum of 7 rooms; there are three bed rooms on

the ground floor; the aforenoted premises which are on the first floor are

thus bondafidely required by the petitioners/landlords and their need

has been established; there is also no reasonably suitable

accommodation available with the petitioners. Impugned judgment

decreeing the eviction petition on no count suffers from any infirmity.

9 The landlord is the best judge of his requirement and this has been

reiterated by the courts time and again that the landlord knows the needs

of himself and his family; it is neither for the court nor for the tenant to

dictate the terms to describe the manner in which the landlord should

live. The Supreme in Prativa Devi (Smt.) Vs. T.V. Krishnan (1996)

5SCC 353 had held in this context inter alia noted as:-

"The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own."

10 Record shows that one witness has been examined on either side.

The ownership of the present petitioners has not been disputed; it is also

not in dispute that tenants are since paying rent to the petitioners. The

presumption under Section 116 of the Evidence Act is also drawn in

favour of the landlord; even otherwise there has been no serious dispute

about the status of the petitioners as owner/landlord.

11 Learned counsel for the petitioner has lastly submitted that till the

time of recording of the evidence the respondent remained represented

but thereafter on subsequent dates for one reason or the other counsel for

the respondent was not available and in fact arguments have been heard

without hearing the respondent and a valuable right has thus been lost by

the petitioner/tenant. The arguments addressed before this court are

admittedly the only arguments which had to be addressed before the

court below. The evidence adduced before the Trial Court both oral and

documentary of the respective parties has been correctly appreciated; it

is clear that the impugned judgment had recorded a correct finding

which was based on the coherent and cogent evidence thereby decreeing

the eviction petition in favour of the landlord.

12 Moreover, the record shows that it appears that no justifiable

explanation for the absence of the respondent through his counsel on the

dates six consecutive dates as highlighted by the petitioner for which

justifiable explanation has not been tendered. On 06.07.2010 counsel for

the respondent was present but on the subsequent dates he was not

present; thereafter he was absent on 3rd and 4th day; on 5th day i.e.

22.11.2010, proxy counsel for the respondent had appeared and on that

date last opportunity had been granted to him to address his argument;

matter was taken up on 11.01.2011 when it was listed for 29.01.2011;

on which date the matter was kept pending till the post-lunch hour

when again since the counsel for the respondent did not appear, the

impugned judgment was passed.

13 In this background, reliance by the learned counsel for the

petitioner on the judgment reported in (191) 2 SCC 788 titled as Rafiq &

Anr. vs. Munshilal & Anr. is misplaced. There is no doubt that by and

large a litigant should not suffer for the faults committed by his counsel;

in this case the Apex Court had noted that when an ignorant and

illiterate villager engages a lawyer, he believes that lawyer will look

after his best interest and will do rest of the things and thereafter, it is

incumbent upon the lawyer to take interest in the case which is not so in

the instant case. The facts of this are distinct and are not applicable in

this factual scenario.

14    Petition is without any merit it is dismissed.



                                              INDERMEET KAUR, J
APRIL 27, 2012
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