Rajiv Joshi vs R.B. Singh
2013 Latest Caselaw 4806 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Order delivered on: October 21, 2013

+                  R.C. REV. No.292/2012 & C.M. No.11497/2012

      RAJIV JOSHI                                           ..... Petitioner
                          Through      Mr.Anil Sharma, Adv. with
                                       Mr. Pradeep Kumar, Adv.

                          versus

      R.B. SINGH                                             ..... Respondent
                          Through      Mr.S.S. Singh, Adv.

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. The present revision petition is filed by the petitioner under Section 25B (8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as "the Act") against the eviction order dated 23rd January, 2012 passed against the petitioner by the ARC-01, (East), Karkardooma Courts, Delhi.

2. Brief facts for the purpose of adjudication of the present petition are that the respondent, a retired Government employee, residing at 317-M, BB Chaterjee Road, Calcutta along with his wife, two sons, one daughter-in-law and one granddaughter, filed an eviction petition against the petitioner in respect of one hall with attached room on the ground floor of property bearing No. B-2/19, Krishan Nagar, Delhi-51 (hereinafter referred to as the "tenanted premises") on the ground of bonafide requirement for residential occupation of his family since he along with his family want to migrate to and settle in Delhi. It was further stated that the tenanted premises were let

out to the petitioner for residential purpose at a monthly rent of `2,000/- on 1st October, 2009.

3. It was also stated in the eviction petition that the first floor of the said property is being occupied by the eldest son of the respondent wherein he resides alongwith his family (i.e. his wife and two children) while as on the second floor, two brothers-in-law of the eldest son are residing. It is stated in the eviction petition that the tenanted premises is required by the respondent as the same is suitable for him and his wife to reside, who are very old and also that the other son of the respondent who is a Chartered Accountant, wants to practice therein.

4. In the application for leave to defend, the petitioner averred that the tenanted premises was let out for commercial purposes and not for residential purposes, as alleged by the respondent. It was also averred that the said eldest son of the respondent resides at the second floor of the said property while as the first floor of the said property is lying vacant and therefore, the respondent has sufficient accommodation with him to reside if he intends to migrate to Delhi.

5. It was further averred that the petitioner was inducted as a tenant in the year 1989 by the respondent in the tenanted premises and the petitioner had paid a sum of `2,50,000/- towards Pagri. It was stated that the rate of rent was enhanced to `1,500/- from `700/- per month during the passage of time. It was also stated that while the petitioner had been paying rent to the eldest son of the respondent, in May, 2007 he refused to accept the rent and asked the petitioner to pay `2,000/- per month as rent. While the talks of compromise were going on between the parties, the petitioner received summons in a suit for possession filed by the respondent alleging that the

tenanted premises were given for taking care thereof and that the petitioner had started using the same for commercial purposes as per his own wish. It was stated by the petitioner that in the said suit a compromise was arrived at between the parties and a compromise order was passed thereon whereby the rate of rent was increased to `2,000/- and the petitioner was given the right to renew the agreement after a lapse of 11 months and therefore, as per the terms and conditions of tenancy by virtue of the agreement dated 1 st October, 2009, the tenancy cannot be terminated and the request to renew the same must be catered to.

6. In the reply to the leave to defend application, the respondent reiterated his stand taken in the eviction petition, however, did not deny the execution of the agreement dated 1st October, 2009. The respondent denied the factum of receiving Pagri. It was pleaded by the respondent that he is residing in Calcutta along with his family on rent and so is entitled to an eviction order in respect of the tenanted premises.

7. The learned Trial Court observed that the petitioner in his leave to defend application had neither denied the landlord-tenant relationship between the parties nor contested the ownership of the respondent. Though the petitioner had denied the correctness of the site plan and the details of the accommodation given by the respondent, he did not himself file any site plan, so he could not have taken any such plea.

8. On the contention of the petitioner that the respondent had not disclosed that his family members were dependent upon him or that he had no other reasonable suitable accommodation, it was observed by the Learned Trial Court that it was the duty of the petitioner to disclose that the respondent has any alternate suitable residential accommodation. Since the

respondent had stated in his petition that he had no other suitable accommodation, it was opined by the learned Trial Court that a presumption in favour of all such contentions is to be raised by the Court until and unless the same is rebutted by the petitioner by disclosing specific facts with supported material.

9. On the contention of the petitioner that the first floor of the said property is lying vacant, it was observed by the learned trial Court that it has to be seen whether the accommodation at the first floor, even if available to the respondent, can be termed as suitable and sufficient to satisfy his requirement. It was observed that the respondent in his eviction petition had stated that he is aged about 72 years (as on 1 st November, 2010) and that this fact has not been specifically disputed by the petitioner. As stated in the petition, the tenanted premises is suitable to the respondent and his wife as they are old persons. The learned Trial Court opined that the old age of the respondent itself is sufficient to show that it would be his bonafide desire to reside at the ground floor of the said property.

10. It was also opined by the learned Trial Court that the contention in respect of Pagri or the nature of tenancy were not relevant for the purpose of holding any trial.

11. With these observations, the learned Trial Court dismissed the leave to defend application of the petitioner vide the impugned order assailing which the petitioner has filed the present petition.

Scope of Revision

12. The question before this Court is, as to whether said findings call for any interference by this Court in exercise of its revisionary jurisdiction or not in view of the facts and circumstances of the present case.

i) A Full Bench of this Court in Mohan Lal v. Ram Chopra and Anr., 1982 (2) RCJ 161 exhaustively considered the provisions of Section 25B of the Act. On the scope of the proviso to Sub-section (8) of this Section, after examining the judgment of Supreme Court in Hari Shanker and Ors. v. Rao Girdhari Lal Chowdhury, A.I.R. 1963 S.C. 698 and Bell and Co. Ltd. v. Waman Hemraj, AIR 1938 Bom (223) it was laid down as follows:

"In our opinion the jurisdiction of the High Court under proviso to Section 25B(8) has to be interpreted, keeping in view the legislative intent. The revision under Section 25B(8) cannot be regarded as a first appeal and nor can it be as restricted as the revisional jurisdiction under Section 115 CPC. The High Court would have jurisdiction to interfere if it is of the opinion that there has been a gross illegality or material irregularity which has been committed or the Controller has acted in excess of his jurisdiction or has not exercised the jurisdiction vested in him. A finding of fact arrived at by the Controller would not be interfered with by the High Court unless it can be shown that finding has been arrived at by misreading or omitting relevant evidence and this has resulted in gross injustice being caused. If none of the aforesaid circumstances exist the High Court would not be entitled to interfere with the order of the Controller in exercise of its jurisdiction under proviso to Section 25B(8) of the Act."

ii) In the case titled as Shiv Sarup Gupta vs. Dr.Mahesh Chand Gupta, reported in AIR 1999 Supreme Court 2507, it has been held as under:-

".....The revisional jurisdiction exercisable by the High Court under S.25-B (8) is not so limited as is under S.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 reappraisal 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 for 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-sec. (8) of S.25-B of the Act. A judgment leading to miscarriage of justice is not a judgment according to law."

iii) The Apex Court in Sarla Ahuja versus United India Insurance Company Ltd., reported in AIR (1999) SC 100 held as under:-

"6. .....The above proviso indicates that power of the High Court is supervisory in nature and it is intended to ensure that the Rent Controller conforms to law when he passes the order. The satisfaction of the High Court when perusing the records of the case must be confined to the limited sphere that the order of the Rent Controller is "according to the law". In other words, the High Court shall scrutinize the records to ascertain whether any illegality has been committed by the Rent Controller in passing the order under Section 25-B. It is not permissible for the High Court in that exercise to come to a different fact finding unless the finding arrived at by the Rent Controller on the facts is so unreasonable that no Rent Controller should have reached such a finding on the materials available."

13. Reliance can also be placed upon the case titled as Sarla Ahuja vs. United India Insurance Co. Ltd. (supra). The facts of this matter were that the petitioner who was a widow wanted to shift her residence from Calcutta to New Delhi to occupy her own building which was in the possession of her tenant M/s United India Insurance Company Limited. Though she got an order of eviction from the Rent Controller under Section 14(1)(e) of the Act,

a single Judge of this Court non-suited her by reversing the order which she challenged before the Supreme Court by way of Special Leave to Appeal. It was held by the Supreme Court that:-

"......The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."

14. In the present case, the petitioner during the course of arguments has not countered the issue of ownership of the tenanted premises. The petitioner has also not disputed the illness of the landlord/respondent and his wife. The only apprehension is that they may not shift to Delhi even if the tenanted premises is vacated by the tenant. I do not accept the submissions of the petitioner/ tenant that the landlord is unlikely to shift to the tenanted premises, as the said submission cannot be accepted at the stage of passing the eviction order because in case, a landlord abuses the process of Court by not shifting or let out the property on higher rate of rent or sells the same, then the tenant is always provided with a remedy under Section 19 of the Act for restitution of the premises.

15. When a landlord or his wife are unable to climb the stairs due to old age or ailment where they are residing at the time of eviction petition and

want to shift to another house owned by the landlord, such a need of the landlord is bonafide as he is entitled for his convenience, particularly, on the ground of health. His intention to shift residence for better medical treatment cannot be doubted and there can be no malafide attributed, as he cannot be deprived of the beneficial enjoyment of his property.

16. In view of the aforesaid reasons, facts and circumstances of the present case, there is no merit in the present petition and the same is dismissed.

However, in the interest of justice, equity and fair play, the petitioner is granted six weeks time from today to handover the peaceful and vacant possession of tenanted premises at property bearing No.B-2/19, Krishan Nagar, Delhi-110051 to the respondent.

17. During this period, the petitioner shall not sublet and create any third party interest in the suit premises.

18. No costs.

(MANMOHAN SINGH) JUDGE OCTOBER 21, 2013