Raje Lal Permeshwari Dass vs Shashi Sharma
2013 Latest Caselaw 4812 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment Pronounced on: October 21, 2013

+                      RC. Rev. No.268/2013 & C.M. No.11447/2013

        RAJE LAL PERMESHWARI DASS                               ..... Petitioner
                     Through  Mr.R.K.Singh, Adv.

                            versus

        SHASHI SHARMA                                        ..... Respondent
                    Through            Mrs.Inderjeet Saroop, Adv.

        CORAM:
        HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By way of filing the present petition under Section 25-B(8) of the Delhi Rent Control Act, 1958 (in short, called the "DRC Act"), the petitioner Raje Lal Permeshwari Dass assails the order dated 22nd January, 2013 passed by the learned Addl. Rent Controller (South), Saket Courts, New Delhi, whereby the application filed by the petitioner (respondent in the eviction petition) for leave to defend was dismissed.

2. Brief facts stated in the eviction petition as per the respondent (petitioner before the learned trial Court):

(a) The respondent is the landlord/owner of the premises room/shop No.6, Ground Floor, G-48, Green Park, New Delhi-110016, measuring 9.5‟ x 4.3‟ft. as shown in red colour in the site plan (hereinafter referred to as the "Tenanted Premises"). The tenanted premises was given to the petitioner on rent in the year 1971 by its registered owner Late Smt.Tara Devi Mehta who was the mother of

the respondent. The rent of the tenanted premises was fixed at `350/- per month exclusive of electricity charges.

(b) Smt.Tara Devi Mehta died on 28th October, 2009 leaving behind two daughters, namely, Smt.Shashi Sharma, the respondent herein and Smt.Suman Sethi who had inherited the property, i.e. G-48, Green Park, New Delhi-110016 (hereinafter referred to as the "Suit Property") in equal shares. An oral partition has already been done between the parties. The entire ground floor of the suit property fell to the share of respondent. Admittedly, the petitioner has attorned in favour of respondent and was/is paying rent to her. The first floor of the suit property fell to the share of her sister, Smt. Suman Sethi who is in possession of the same.

(c) The respondent is about 68 years of age. At present, she is residing at House No.528, Tower-III, Mount Kailash, East of Kailash, New Delhi which is a duplex flat on the fifth floor. The age of her husband is about 75 years and that of her mother-in-law is more than 99 years. The case of the respondent is that since at present she herself, her husband and her mother-in-law are residing at the fifth floor and they have to climb the stairs very frequently, thus, the same is inconvenient and painful to them, as she is suffering from knee problem due to old age and there is also a pain in her both legs. She is also suffering from slip disc. Thus, it is very difficult to use the stairs. Therefore, the ground floor of the suit property is suitable to her and her family members.

(d) It is an undisputed fact between the parties that the entire ground floor of the suit property including the tenanted premises is lying sealed by the MCD since 2007, due to non-conforming user of the same and can

be used for residence only. The husband of the respondent who is a management consultant is also suffering from old age problems like pain, breathlessness and general weakness. He also needs a separate study room.

(e) Therefore, the eviction petition was filed by the respondent before the learned trial Court on the ground of bonafide requirement for use and occupation by the respondent and her family members and her husband and mother-in-law. They want to shift to the suit premises on the ground floor. The mother-in-law of the respondent has hip fracture and she needs one bed room exclusively for her and a full time nurse to look after her. She moves with the help of a walker and needs to live on the ground floor as it is difficult to stay in a duplex flat on the fifth floor.

(f) The respondent has two married sons who are running a business and enjoying good financial social status. The accommodation at 528, East of Kailash can accommodate only one family and the same is being occupied by Sh.Sameer Sharma (her son) and his wife and two school going children aged 10 and 5 years studying in DPS East of Kailash which is adjoining to the said complex. The family of Sameer Sharma needs to live in said flat and the present accommodation is insufficient for the respondent who wants to shift to the ground floor of the suit property along with her husband and her mother-in-law. She also needs a pooja room for herself and her family members. Her second son Sanjay Sharma and his family is forced to live in a rented flat No.136 Ground floor, Kailash Hills, New Delhi at a monthly rent of `25,000/- who would also be shifting to two room accommodation on the second floor of the suit property.

(g) The respondent‟s husband‟s brother resides in US and another brother resides in Indore and they keep on visiting Delhi and there are other relatives who visit the respondent quite often and therefore, there is a need for a separate guest room.

(h) It was admitted by the respondent that the family of the respondent is running a company under the name & style of M/s EEZ Foil Pvt. Ltd. and EEZ Pack Pvt. Ltd. at B-143, DDA Sheds, Okhla Industrial Area, Phase-II, New Delhi, which is an industrial property. The husband of the respondent has also taken another industrial shed A-109, DDA Sheds, Okhla Industrial Area, Phase-II, New Delhi at a monthly rent of `36,000/-.

3. Various grounds have been taken by the petitioner in the present revision petition filed under Section 25-B(8) of the DRC Act by challenging the findings of the learned trial Court in the impugned order. The details of the same are given as under:-

        (i)     The need of the respondent is not genuine.
        (ii)    The tenanted premises is commercial in nature.

(iii) The intention of the respondent is to get vacate the tenanted premises by any means. Therefore, the eviction petition was filed.

(iv) The respondent has not placed any document showing her ownership in respect of the suit property.

(v) The respondent has not filed the correct site plan of the suit property.

(vi) Apart from the five shops at ground floor as stated in the eviction petition, there are three bed rooms besides kitchen,

latrine and bathroom which have not been shown in the site plan filed by the respondent.

4. The issue before this Court is, whether said findings call for any interference by this Court in revisionary jurisdiction in view of the facts and circumstances of the present case or not. It is settled law and it has been held from time to time by various courts that the revision under Section 25-B(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. In other words, this Court has only to see whether the learned Rent Controller has committed any jurisdictional error and has passed the order on the basis of material available before it. 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 25-B(8) of the Act.

5. No doubt that 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 would have reached on the material available before him.

6. 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."

7. As far as the relationship between the parties as landlord and tenant is concerned, it is an undisputed fact that late Smt.Tara Devi, mother of the respondent, was the owner of the suit property. The respondent has filed sufficient evidence before the learned trial Court about the mutation of the suit property in the name of the respondent. The mutation letter dated 3 rd June, 2010 issued by the MCD was produced which shows that the property in question has come to the share of the respondent and her sister Smt.Suman Sethi. The other fact of the matter is that the petitioner was paying the rent to the respondent. Thus, the relationship of landlord and tenant between the parties is proved in accordance with law.

8. During the course of the hearing of the petition, the petitioner has filed the affidavit dated 24th September, 2013 wherein it was stated that the respondent has not mentioned in her eviction petition and also not shown in the site plan the portion behind the tenanted premises on the ground floor

which comprises of two rooms with bath WC and small kitchen which are meant for residential use. The respondent has placed on record the proposed site plan of the properties in question in order to show that the respondent ultimately has to reconstruct the entire property in order to satisfy the requirement of herself and her other family members.

9. The said affidavit was filed in response to the affidavit filed by the respondent wherein she has admitted that the L-shaped portion behind the tenanted premises comprises of only two rooms with bath WC and small kitchen. It is further mentioned that the suit property is built on a 200 Sq. Yards plot with covered area of 1230 Sq.ft. out of which L-shaped portion is only 602 Sq.ft. The entire ground floor after vacation by all tenants is one residential unit of drawing, dining, two bedrooms, pooja and guest room, kitchen and the same is the only property available on the ground floor. It is also mentioned by the respondent in her affidavit that she herself or her husband or any of her family members do not have any other residential property on ground floor.

It is also mentioned that the petitioner/tenant is already running his business under the name and style of Trade Corporation (India) at 4123, Ajmeri Gate, Delhi and also at 185, Mittal Market, Ajmeri Gate, Delhi- 110006. His PAN Card No. is AANPA8687J which was attached along with the sales tax documents and cash memo of the petitioner/tenant containing the above said address, with TIN No.07050181107. Apart from above, the petitioner/tenant has various commercial properties from where he is running his business.

10. Admittedly, the tenanted premises is lying locked and unused for the last more than 6 years. The electricity meter is also disconnected for the last many years. There is sufficient material filed by the respondent available on

record which establishes the truthfulness of the statement of the respondent made in the affidavit. During the course of the arguments, the learned counsel for the petitioner did not specifically deny the facts stated in the petitioner. Even if, the L-shaped residential unit available at the ground floor which is 602 Sq.ft. is taken into consideration, the requirement of the respondent in view of the eviction petition filed is not fulfilled.

11. With regard to the other contentions raised by the petitioner that the mother of the respondent has let out the tenanted premises to the petitioner for commercial purposes, therefore, now the same cannot be used for residential purposes. The said argument is also without any force, in view of the judgment passed by the Supreme Court in Satyawati Sharma vs. Union of India, 148(2008) DLT 705 SC wherein it is held that such petition under Section 14(1)(e) of the DRC Act is maintainable in respect of non-residential premises also.

12. In the case of Ramesh Chand vs. Uganti Devi, 157 (2009) Delhi Law Times 450, it was held that the Court has only to see whether the Addl. Rent Controller committed any jurisdictional error and passed order on the basis of material available before it.

13. In another case titled as Rajender Kumar Sharma & Ors. vs. Leela Wati & Ors., 155 (2008) Delhi Law Times 383, this Court held that only those averments in affidavit are to be considered by Rent Controller which has some substance in it and are supported by some material.

14. In the case of Kuldip Mahajan vs. Smt. Krishna Uppal and others, 2002 V AD (Delhi) 61, it was held as under:-

"Landlady affected with arthritis, not finding convenient to live in first floor when she owns a ground floor accommodation - no malafide."

15. This Court in the case of Om Prakash vs. Dev Raj Kohli, 67 (1997) Delhi Law Times 721 held as under:-

"The respondent-landlord on the date when he filed the petition, i.e. in January, 1996 was 73-74 years old. One of the ground for eviction was that being old, weak and frail, it was not possible for him to climb the stairs, therefore, needed to occupy his own premises which is on the ground floor. One cannot loose sight of the fact that old age itself is a disease.......

......For the beneficial enjoyment of his property, if he seeks eviction of his own house which is more convenient to him, it cannot be called a malafide desire. In the evening of his life, he wants to live in his own house which is more convenient for him, the petitioner cannot dictate him to go on living on the first floor of a tenanted premises."

16. The Supreme Court in the case of P.S. Pareed Kaka and others vs. Shafee Ahmed Saheb, (2004) 5 Supreme Court Cases 241 held that where, on facts, it can be shown that the landlord is put to hardship by not using his own premises and the tenants on the other hand are not put to hardship by being evicted, the need of the landlord is bonafide. In another case titled as Sarwan Dass Bange vs. Ram Prakash, 2010 IV AD (Delhi) 252, this Court held that mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption of landlord‟s favour that his requirement of occupation of premises is real and genuine.

17. As regards the bonafide requirement in the present case, this Court is fully satisfied with the submissions of the learned counsel for the respondent. The present case is the fittest case in which the bonafide requirement has been proved by the respondent. The details given in the eviction petition with regard to the family have not been disputed by the

petitioner. The petitioner has also not disputed the fact that the property is sealed for the last more than 6 years due to non-confirming user. Thus, there is no use to keep the property which is lying sealed for the last more than 6 years, in case, the bonafide requirement of the respondent is genuine.

18. After having considered the facts of the case, this Court feels that the ground floor of the suit property is a suitable accommodation for the respondent who has been able to prove her case within the four corners of Section 14(1)(e) of the DRC Act. The question of interference in the impugned order dated 22nd January, 2013, under these circumstances, does not arise, as the learned trial Court has dealt with all the grounds raised by the petitioner in his application for leave to defend from paras 19 to 25 of the impugned order.

19. The present petition is accordingly dismissed. Pending application also stands disposed of.

(MANMOHAN SINGH) JUDGE OCTOBER 21, 2013