Shri Dayal Chand And Another vs Sh Gulshan Kumar And Another
2012 Latest Caselaw 343 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment reserved on: 13.01.2012
                                   Judgment reserved on:18.01.2012


+      R.C.R. No. 16/2005 & CM Nos.2144/2005 & 4036/2007

SHRI DAYAL CHAND AND ANOTHER          ...........Petitioners
                  Through: Mr. G.P. Threja, Advocate.

                     Versus

SH GULSHAN KUMAR AND ANOTHER         ..........Respondents
                 Through: Mr. Hari Shankar, Adv. for R-1.
                          Mr. Ramesh Kumar, Adv. for
                          R-2.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J.

1 Order impugned is the judgment and decree dated

04.10.2004 vide which the petition filed by the landlord Dayal

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

(hereinafter referred to as the „DRCA‟) had been dismissed.

2 Record shows that the petitioner claims himself to be the

landlord of property bearing No. 1/5695, Gali No. 17, Delhi-10032;

the respondent Gulshan Kumar was a tenant on the ground on the

said premises; he was in occupation of one room, kitchen with

common use of a latrine and bathroom. Contention of the

petitioner in the eviction petition is that the premises in his

occupation comprises of three rooms on the ground floor with

common courtyard and one room on the first floor. His family

comprises of himself, one married son and three children; this

eviction petition was filed in the year 2000. The petitioner at the

relevant time was 80 years of age; contention being that he needs

a separate room for himself; his son Inderjeet aged 45 years has a

family of whom two were adult daughters aged 21 years and 15

years respectively and third son is aged 10 years; they had been

living together in the said property; his other son is residing in

Germany who used to visit the petitioner and the accommodation

presently available with them is not sufficient for them. Present

eviction petition has accordingly been filed.

3 Leave to defend had been granted to the tenant and he had

filed his written statement. He has raised certain contentions; the

impugned order has returned a fact finding that the present

petitioner is a co-owner in the disputed premises; admittedly a co-

owner can maintain an eviction petition and this point was rightly

decreed in favour of the landlord. In view of the judgment of

148(2008) DLT 705 (SC) Satyawati Sharma (Dead) by LRs. Vs.

Union of India there is also no distinction between a commercial

and a residential purpose as far as the applicability of provisions

contained in Section 14 (1)(e) are concerned.

Oral and documentary evidence had been led before the

trial Court. Three witnesses had been examined on behalf of the

landlord which included Inderjeet Singh Sharma who had

appeared as an attorney of his father as PW-1; PW-2 was their

maid servant and PW-3 was their neighbor. Tenant has produced

himself as RW-1. On the basis of evidence which had been led

before the trial Court, the ARC had returned a finding that the

bonafide need of the landlord has not been established. The

averments made in the eviction petition as also the documentary

evidence which included the site plan Ex.PW-1/7 as also the

admission of PW-1 in the cross-examination had led the trial Court

to return a finding that the landlord is confused about his need; he

has sufficient accommodation available with him; the need of the

petitioner having an independent personal room for religious

purpose qua the petitioner has come to an end as the petitioner

has expired during the pendency of the petition. The landlord

having sufficient accommodation with him which had not been put

to gainful use, the need of the landlord for the room available with

the tenant was a malafide need. Petition had accordingly been

dismissed.

4 This Court is sitting in its powers of revision. In AIR 1999

SC 2507 Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, the Apex

Court in this context has noted herein as under:-

"The revisional jurisdiction exercisable by the High Court under Section 25-B (8) is not so limited as is under Section 115 CPC nor so wide as that of an Appellate Court. The High 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. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of "whether it is according to law'. For that limited purpose it 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 that conclusion on the material available. Ignoring the weight of evidence, proceeding on wrong premise of law or deriving such conclusion from the established facts as betray the lack of reason and/or objectivity would render the finding of the Controller 'not according to law' calling for an interference under proviso to sub-Section (8) of Section 25-B of the Act. A judgment leading to miscarriage of justice is not a judgment according to law."

5 It is in this background that the contentions of the

respective parties have to be appreciated.

6 PW-1 is the attorney holder of his father i.e. the original

landlord; his power of attorney has been proved as Ex. PW-1/1;

the site plan has been proved as Ex. PW-1/7. His contention on

oath had stated that the accommodation available with them

consisting of four rooms on the ground floor and one room on the

first floor and out of these four room, one room is in possession of

the present tenant and three rooms are in possession of the

petitioner; the site plan is in accordance with this deposition. This

has been explained further by PW-1 in his examination in chief

wherein it is deposed that out of three rooms, room „B‟ is with

Inderjeet Singh; room „C‟ is occupied by the landlord himself and

room „D‟ is used for miscellaneous purpose; one room is in

occupation of the present tenant; family of the landlord admittedly

at that time comprised himself, his married son and his 6 family

members of whom two were adult children; deposition being to

the effect that all the children cannot be accommodated in the

aforenoted accommodation as they require separate rooms for

sleeping, for their studies as also for meeting their friends; further

deposition being to the effect that they are school going children

and there is no separate room for taking tuition; room on the first

floor is used for storage of goods and articles; the landlord was

himself suffering from asthma and other ailments and admittedly

being over 80 years at the time of deposition of PW-1; the medical

record of report of the landlord had also been proved on record as

Ex.PW-1/10; PW-1 i.e. Inderjeet Singh (son of the landlord) was

running a shop of wheel alignment; in his cross-examination he

has admitted that the rooms on the first floor is used for all the

children and the kitchen is presently being used as godown as

there is no other space to store the articles; further submission

being that his father is not an income tax payee; he himself has an

independent income and is not dependent upon his father; this

last line of his deposition (as noted supra) has been vehemently

highlighted by learned counsel for the respondent to substantiate

his submission that PW-1 has himself admitted in his cross-

examination that he is not dependent upon his father and as such

provisions of Section 14 (1)(e) of the DRCA and the very basis of

the eviction petition filed by his father is thus washed out as

Section 14 (1)(e) is available only to a landlord to prove either a

bonafide need for himself and his family who is dependent upon

him; PW-1 has himself admitted that he is not dependent upon his

father and thus the need of the landlord not being bonafide calls

for a rejection of the eviction petition straightaway.

7 PW-2 was the maid servant who was working with the

landlord since the last about 18 years attending to the household

work as also to the needs of the landlord who was suffering from

asthma and other ailments; she has on oath deposed that the

landlord himself requires a puja room as he is religious person;

children are school going; there is no space for a tutor; in her

cross-examination she has admitted that from the site plan i.e. in

between the room which is in occupation of the tenant and the

room which is occupation of the landlord, there is a gallery. PW-3

is a neighbor; he was the person who had made available the

accommodation in his use for the visits of the second son of the

landlord who used to come from Germany and his deposition is to

the effect that since there was not enough accommodation

available with the landlord his son used to live with him. RW-1

was the tenant himself. He has admitted that he has not filed any

counter site plan to the site plan already filed by the landlord and

as such the trial Court had rightly relied upon this document as

the only site plan depicting the accommodation correctly. This

was the sum total evidence which had led before the trial Court

both oral and documentary. The trial Court on this basis had

rejected the eviction petition.

8 In view of this Court, this evidence has not been appreciated

correctly; there appears to be a manifest illegality committed by

the trial Court in this regard which require a correction in the

absence of which travesty of injustice will be caused to the

landlord.

9 The case of the landlord as is evident from the eviction

petition is that he has a three room accommodation on the ground

floor and one room on the first floor which is being used for

storage of goods. The site plan Ex. PW-1/7 is clearly in conformity

with this deposition; his deposition is also in conformity; PW-1

Injderjeet Singh had in fact explained that there are four rooms

with them of which one room is with the tenant and the trial Court

relying upon this one line version of the petitioner wherein he had

stated that he has four rooms available with him and holding that

the petitioner is a confused man has clearly erred; the testimony

of a witness has to be read as a whole and not a single line

statement can be subtracted or extracted to give it a meaning not

which is otherwise not made out from the wholesome reading of

this version.

10 It has come on record that the family of PW-1 comprised of

himself, his wife, three children of whom two were adults and his

father; his father i.e. the landlord being 80 years of age and

requiring constant medical attention; accommodation available

with the landlord at the relevant time i.e. on the date of filing of

the eviction petition were three rooms only of which one was

occupied by the landlord himself, one by Inderjeet Singh and third

room was being used for miscellaneous purpose. Admittedly

miscellaneous purpose has not been explained in the eviction

petition but the testimony of PW-1 has explained it; he has

enlarged this definition by stating that his two adult daughters

and 10 years old son have tuitions; tutors come to their house to

teach children but there is no space available with the children to

accommodate them; there is no separate space for them to sleep

and to meet their friends; admittedly one more room which is

depicted in the site plan (Ex.PW-1/7) and which has not been

mentioned in the eviction petition is a room without a roof which

cannot be used for any purpose and as such even if this fact did

not find mention in the eviction petition it can in no manner be

termed as concealment of a material fact which would disentitle

the petitioner to a decree if he is otherwise so entitled. A Bench of

this Court in 1988 (2) RCJ 179 R.D. Aggarwal Vs. Smt. Arjan Kaur

in this context has held as under:-

"In an eviction petition on the ground of bona fide requirement it is only where a particular landlord intentionally conceals the residential accommodation available to him from the court that he/she can be non-suited on this ground. Concealment of innocuous accommodation which cannot be used as a regular room should not result in dismissal of her/his claim for more accommodation."

11 PW-1 has further in his deposition explained that although in

the eviction petition it has been stated that the room on the first

floor is being used for storage purpose but it is now being used a

study; substantiating and fortifying the submission of the

petitioner that the need of the landlord is grave and that is why

the room on the first floor which was used for storage purpose is

now being used for a study for the children as there is no space to

accommodate them and their tutors. It has also come on record in

the version of PW-3 (which remains unchallenged) that the second

son who visits his father from Germany is staying at the house of

PW-3 as there is no accommodation with his father to

accommodate him; testimony of the maid-servant of the petitioner

(PW-2) is also relevant and corroborative on this score; all these

testimonies were disregarded; the trial Court has failed to

appreciate them in the correct perspective.

12 The landlord himself has expired during the pendency of the

petition but the need of the family has in no manner decreased;

children have grown up and the family of Inderjeet Singh now

comprises of himself, his wife and all the three children who are

adults and all of whom need separate rooms. Two are adult

daughters and third is an adult son; his brother also visits him

from the Germany; he also has to be accommodated; the

accommodation presently available with the petitioner is only

three rooms on the ground floor and one room on the first floor.

Even assuming that the two adult daughters can be

accommodated in a single room, the son requires one room and

Inderjeet Singh and his wife require one room; they also need a

guest room as well to accommodate their brother who is also a co-

owner in this premises and it cannot be expected that all times he

will continue to live in the house of the neighbor. The bonafide

need of the landlord had been disregarded; the testimony has

been mis-read. This is an illegality which needs to be cured.

13 In this back ground the impugned order suffers from an

infirmity; it is accordingly set aside. Eviction petition of the

landlord is decreed.

INDERMEET KAUR, J JANUARY 18, 2012 a