Delhi High Court
Mehar Ellahi vs Sultana & Ors on 10 May, 2012
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 08.05.2012
Judgment delivered on : 10.05.2012
+ RC.REV. 45/2011 & CM No.2811/2011
MEHAR ELLAHI ..... Petitioner
Through: Mr.Amar Pal and Mr.Niyazuddin,
Adv.
versus
SULTANA & ORS ..... Respondent
Through: Mr. Sidhartha Bamba and Mr.
Nishant Nandan, Adv.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1 Impugned judgment is dated 30.5.2009; eviction petition filed by
the landlord Mehar Ellahi seeking eviction of his tenant Sultana and
others from the tenanted premises i.e. the first floor of property bearing
No.7565, private No.D, Ward No.14, near Bari Masjid, Panchakki,
Quresh Nagar, Sadar Bazar, Delhi (as depicted in red colour in the site
plan had been dismissed); this was after trial.
2 This Court is sitting in its power of revision. Unless and until a
patent illegality or perversity is pointed out in the judgment of the trial
court below interference by the High Court is not called for. In this
context observations of the Apex Court in AIR 1999 SC 2507 Shiv
Sarup Gupta Vs. Dr. Mahesh Chand Gupta, are relevant; which are
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."
3 It is in this background that the arguments of the respective
parties are appreciated.
4 Record shows that the grounds of eviction as contained in the
eviction petition are that the petitioner has a large family comprising of
three sons; his daughter-in-law, two grand children; he is a resident of
7474, near Bari Masjid, Panchakki, Quresh Nagar, Sadar Bazar, Delhi;
the accommodation available with him is one shop on the ground floor
and one room, kitchen, latrine and bath room on the first floor and so
also the same accommodation on second floor and he thus has only two
rooms, two kitchen, two latrine and bathroom in his possession which is
insufficient accommodation for the members of his family.
Accordingly, eviction petition on the ground of bonafide requirement
was filed.
5 Written statement was filed disputing these submissions. It was
denied that the need of the landlord was bonafide. Contention was that
he has made a active concealment of material facts.
6 Oral and documentary evidence was led. Three witnesses were
examined on behalf of the plaintiff. PW-1 was the landlord himself. In
para 7 of his affidavit by way of evidence he had deposed that the
premises where he is staying is a three storeyed building having one
shop on the ground floor, first floor has one room, kitchen, latrine and
bathroom; so also the second floor which is occupied by his to
unmarried sons and one unmarried daughter. Contention of the learned
counsel for the tenant is that this deposition on oath is contrary to the
averments made in the eviction petition. Para 7 of the affidavit when
read with the grounds mentioned in the eviction petition show that there
appears to be a typographical error in the eviction petition as in the body
of the eviction petition [sub para (iv) of para 18(a)] it has been clearly
stated that the accommodation available with the landlord is one shop on
the ground floor and one room, kitchen and bathroom on the first floor;
there appears to be one line missing; the total accommodation described
by the landlord is two rooms, two kitchen and two bathrooms which is
the same as was stated by him in his deposition on affidavit. There is
thus no contradiction on this score.
7 Cross-examination of PW-1 has also been perused. In his cross-
examination he has admitted that he is also the owner of the property
bearing No.7565; in which there is one shop on the ground floor which
has been tenanted out; it is not in dispute that front portion of 7565 on
the first floor is with the present tenant. PW-1 has further admitted in
his cross-examination that he has one room on the first floor of property
no.7565 which is with Nawabuddin who is an old tenant living there
since last 20-25 years; further contention being that Nawabuddin is a
tenant with respect to one court and one room; Nawabuddin had come
into witness box as PW-2. He has stated that he was an occupant of the
first floor of the property bearing No.7565 which is adjacent to the
tenant property but he has vacated this property about 20-25 years ago
i.e. he lived in the property, only till 1984. Thus on this score the
landlord has made a false statement; he has specifically in his cross-
examination stated that one room is with the tenant Nawabuddin
whereas Nawabuddin (PW-2) has stated that he had vacated this
property in 1984; so also a false and incorrect statement has been made
by the landlord qua property No.7566. Relevant would it be to state that
the landlord had not disclosed that the property No.7566 is also owned
by him; this has been elicited in his cross-examination wherein he has
admitted that the property No.7566 is also owned by him and
Islamuddin was a tenant who has since vacated it; thereafter in the next
para of his cross-examination PW-1 has stated that Islamuddin was also
having a shop on the ground of property No.7565. Islamuddin has come
into witness box as PW-3. He has deposed that he was a tenant in
respect of a shop on the ground floor of property No.7565 which was
vacated by him in the year 1990. On this count also the petitioner has
made a wrong and false statement; his need is definitely not bonafide as
he has not been able to explain why he has hidden from the court the
fact that property No.7565 was owned by him as also the property
No.7566. Second wrong statement was to the effect that both property
No.7565 and 7566 are in occupation of to tenants namely Nawabuddin
and Islamuddin; both of whom had come into witness box and disputed
this submission; both of them have vacated these premises long ago i.e.
in the years 1984 and 1990 respectively.
8 Eviction petition was filed in the year 2000; it was in this context
that the impugned judgment has noted these facts in the correct
perspective and drawn the conclusion that such a landlord who does not
come to the court with clean hands is not entitled to any relief.
9 Impugned judgment in no manner suffers from any infirmity.
10 Reliance by the learned counsel for the petitioners upon the
judgment reported in 1998 RLR 528 Ram Nainrain Vs. Asha Rani and
2001 STPL(LE) 29248 SC M.L.Prabhakar Vs. Rajiv Singal are
misplaced. Not only there is a suppression of material facts in the
instant case but there has been a fraud which has also been played upon
the court; wrong statements have been made on oath. Thus these
judgments do not in any manner come to the aid of the petitioner.
Petitioner was rightly not entitled to the relief prayed for by him.
11 Petition is without any merit. Dismissed.
INDERMEET KAUR, J
MAY 10, 2012
nandan
