Shri Ram Gopal vs Shri Purshottam Dass
2014 Latest Caselaw 3562 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RC REV No. 386/2012

%                                                            6th August, 2014

SHRI RAM GOPAL                                             ......Petitioner
                          Through:       Mr. Sonal Sinha, Advocate.

                          VERSUS

SHRI PURSHOTTAM DASS                                       ...... Respondent

                 Through:                Mr. Sunil Lalwani, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

C.M. No.3801/2014 (exemption)

1.           Exemption allowed subject to just exceptions.


             C.M. stands disposed of.

+ RC. REV. No.386/2012 and C.M. Nos.3800/2014 (stay) & 13589/2012 (stay)

2. No doubt, this Court in routine receives various challenges to

orders which are passed by the Additional Rent Controller, and number of

them are frivolous, however, the present petition is a height of dishonesty

and lack of bonafides of an unacceptable nature. This I am observing

because the admitted fact is that the petitioner/tenant has not paid even

nominal, the admitted rent @ Rs.60/- per month way back from the year

1979. Not only the nominal admitted rent is not paid, but, the facts

discussed below will show that the petitioner/tenant is resorting to falsehood

of denying the ownership of the respondent/landlord and who is the son of

Sh. Vijay Narain although to Sh. Vijay Narain petitioner/tenant admits that

he had paid the rent and hence Sh. Vijay Narain was the landlord of the

petitioner. Therefore for around 35 years, petitioner is staying in the

tenanted premises comprising of one room on the ground floor, without

paying a single rupee as charges for use and occupation. Also, this eviction

petition on the ground of bonafide necessity has been decreed after trial and

it is not as if the eviction petition was decreed by refusing leave to defend.

With the aforesaid introductory statement, let me turn to the facts of the

present case.

3. This revision petition under Section 25B(8) of the Delhi Rent

Control Act, 1958 (hereinafter referred to as 'the Act') impugns the

judgment of the Additional Rent Controller dated 4.5.2012 by which the

bonafide necessity eviction petition under Section 14(1)(e) of the Act has

been decreed. The respondent/landlord filed the eviction petition for

bonafide necessity with respect to the tenanted premises of one room on the

ground floor of the property bearing No.5166(part)/5167, 5167-A and 5168,

Basant Road, Pahar Ganj, Delhi-110055. The entire property is constructed

on a very small area of land of about 76 sq yds. The family of the

respondent/landlord comprises of himself, his wife and his son of

marriageable age. Besides these family members, the respondent/landlord

has two married daughters and for whom a guest room is required as the

married daughters regularly visit the respondent/landlord. When we

compare the family members of the respondent to the accommodation which

is available to the respondent, it is seen that the respondent/landlord has on

the ground floor of the premises, besides the tenanted room, one shop which

is being used by him as a general store (kiryana). On the first floor, there are

two rooms plus a store room (less than 100 sq feet) alongwith kitchen,

bathroom, WC and open space. There is one small barsati room and WC on

the second floor. The respondent needs one bed room for himself, one bed

room for his son, one bed room as guest room for his married daughters, one

drawing room, one store room and one puja room i.e a total of four big

rooms besides amenities of a store room, puja room, kitchen and WC,

however, the respondent/landlord has only two rooms and one store room

and hence there is an additional requirement of two big rooms and a puja

room. At this stage itself I may note that the tin shed on the barsati/second

floor cannot be used as a room and which aspect is discussed subsequently

because the roof of the said room on the second floor is made of T-iron.

4. The petitioner/tenant contested the petition and stated that the

respondent was not the owner of the suit premises. The bonafide need of the

respondent for himself and his family members was denied including by

stating that there existed two rooms plus one room and which third room is

only a store room on the first floor and also allegedly that two rooms existed

on the second floor. Also, one room was said to be available to the son of the

respondent/landlord in a nearby premises bearing no.5174, Basant Road,

Pahar Ganj, Delhi.

5. In a petition for bonafide necessity, three aspects are required to

be proved. First is the existence of the relationship of landlord and tenant

and that the landlord is the owner of the tenanted premises. Second is that

the landlord requires the tenanted premises for use of himself and/or his

family members and third is that the landlord has no other alternative

suitable accommodation.

6(i) So far as the first aspect is concerned, the Additional Rent

Controller has held that the respondent is the owner/landlord of the premises

by referring to the sale deed dated 21.01.1971 executed by the original

owner in favour of the respondent/landlord which is Ex.PW1/2. The

Additional Rent Controller also notes the fact that the petitioner himself

admits that he was paying the rent to the father of the respondent/landlord,

and therefore the fact that the respondent is the son of Sh. Vijay Narain to

whom the petitioner was paying the rent, the same would show that the

respondent is also the landlord of the premises after the death of his father.

(ii) In addition to the aforesaid aspects of proof of ownership by

means of the sale deed, as also the fact that since the petitioner/tenant was

paying rent to the father of the respondent/landlord and hence the respondent

would also become the landlord of the premises, it is required to be noted

that once the respondent is taken as the landlord, his ownership also cannot

be disputed in view of Section 116 of the Evidence Act, 1872. It is also

required to be stated that it has been held by this Court as also by the

Supreme Court in a catena of judgments that the 'ownership' in a bonafide

necessity petition is an expression only to mean that the landlord has a title

to the tenanted premises which has to be better than that of the tenant. It is

the law that the expression 'ownership' is not to be interpreted to mean

absolute ownership. Not only that the respondent/landlord has only to prove

a better title qua the tenant but also, it has now been repeatedly held that a

negative defence of a tenant that the landlord is not the owner/landlord of the

suit premises is not permissible because if the landlord is not the

owner/landlord of the suit premises then who is the owner/landlord of the

premises must be stated by the tenant and which is not stated by the

petitioner in this case. In the present case therefore since the

respondent/landlord has a title better than the petitioner/tenant, in view of

the sale deed Ex.PW1/2 hence it has to be held that the respondent is the

owner-landlord of the suit premises. Also, it is relevant to note that no one

else other than the respondent/landlord is claiming ownership of the suit

premises and the petitioner/tenant has not proved by any evidence as to who

is the other person who allegedly is the owner/landlord and who claims title

to the suit premises. It is further required to be noted that as per Section 2(e)

of the Act, the expression 'landlord' is defined to include a person who is

receiving the rent. Since the petitioner admits that rent was being paid to the

father of the respondent Sh. Vijay Narain, and since the respondent is the

son of Vijay Narain, therefore, the respondent will be the landlord of the suit

premises. For all these reasons, including for the reasons given by the

Additional Rent Controller, I do not find that there is any error with respect

to the Additional Rent Controller concluding that the respondent is the

owner/landlord of the tenanted premises.

7(i) Counsel for the petitioner/tenant argues that the respondent is

not the owner/landlord of the premises because in two earlier cases it has

been held against the respondent that he has failed to prove his ownership

and relationship of tenancy with the petitioner, and therefore the Additional

Rent Controller according to the counsel for the petitioner ought to have

held that the respondent is not the owner/landlord of the suit premises in

view of the principle of res-judicata. The reference which is made by the

petitioner/tenant in this regard is firstly to a judgment dated 8.12.1983 in a

bonafide necessity eviction petition which was filed by the respondent

herein, and which holds that the respondent herein (petitioner in that case)

had failed to prove his ownership. The second judgment which is relied

upon is the judgment in a suit for recovery of rent of Rs.2160/- filed by the

respondent herein against the petitioner and in which suit no.556/1984 it was

held by the Civil Judge by judgment dated 3.11.2000 that the respondent

herein (plaintiff in that suit) had failed to prove the relationship of landlord

and tenant with the present petitioner.

(ii) The arguments urged on behalf of the petitioner on the first

impression appeared to carry weight, however, when we examine the

argument deeply, it is found that the arguments are completely without

substance because the aspect as to the respondent not being an owner of a

premises for the same to be held continuously for all times against the

respondent/landlord can only be if ownership of the respondent/landlord

would have been extinguished including by means of adverse possession. It

is not the case of the petitioner that he has become owner of the suit

premises by adverse possession. Ownership is a continuous cause of action

to claim eviction on the ground of bonafide necessity and unless ownership

is extinguished by adverse possession or in some other legal manner, it

cannot be held that judgments in earlier proceedings will operate as res

judicata to extinguish ownership rights of the respondent/landlord. The

judgments in earlier judicial proceedings will bind the parties only so far as

the cause of action in those proceedings are concerned. With respect to a

continuous cause of action based on ownership rights the principle of res

judicata cannot apply inasmuch as the issue of ownership can always be

asserted and established in accordance with law in a subsequent judicial

proceedings. In the present case, ownership aspect in my opinion has been

sufficiently established by proving the sale deed in favour of the

respondent/landlord as Ex.PW1/2 taken with the fact that the petitioner

admits that even earlier to the sale deed he was paying rent to the father of

the respondent Sh. Vijay Narain and as a result of which the respondent who

now steps into the shoes of his father would undoubtedly be the landlord of

the suit premises and the respondent is hence the owner also by virtue of

Section 116 of the Evidence Act, 1872.

8. Learned counsel for the petitioner/tenant argues that the

respondent/landlord has failed to prove the sale deed Ex.PW1/2 however it

could not be disputed by the counsel for the petitioner that no objection was

raised to exhibiting of the sale deed at the time the sale deed was proved and

exhibited, and therefore today no objection can be raised to the exhibiting of

the sale deed in view of the ratio of the judgment of the Supreme Court in

the case of R.V.E.Venkatachala Gounder Vs. Arulmigu Viswesaraswami &

V.P.Temple & Anr. AIR 2003 SC 4548.

9(i) That takes us to the issue of whether there exists bonafide

necessity of the respondent/landlord. Bonafide necessity is challenged

essentially on the ground of existence of a third room on the first floor, two

additional rooms on the second floor, and finally one room belonging to the

son of the respondent/landlord in another premises no.5174.

(ii) So far as the alleged third room on the first floor is concerned,

the said room cannot be used as a room because of the settled law in terms

of the innumerable judgments passed by this Court that a room which is less

than 100 sq feet cannot be used as a bedroom. Also, this room, really is a

store room, has an entrance only through one bedroom, and therefore the

same not having any independent entrance, accordingly this small store

room only cannot be called and used as a bedroom. Therefore, I hold that

the Additional Rent Controller rightly held that there are only two bedrooms

on the first floor and not three bedrooms as was the case of the

petitioner/tenant as per his written statement.

(iii) That takes us to the issue as to whether there are two rooms

existing on the second floor of the premises. The case of the

respondent/landlord is that he was in fact trying to construct the two rooms

on the second floor but he was stopped constructing the same by the

municipal corporation. I may note that since the entire premises are situated

on a plot of land which is 76 sq yds, obviously construction on the second

floor would be illegal because no sanction plan would be given for

construction on the second floor. Also, the respondent/landlord has filed and

proved photographs of the 'construction' on the second floor as Ex.PW1/12

to Ex.PW1/16, and these photographs show that the walls are not plastered

and these so called rooms are not fully constructed. Therefore, the alleged

two rooms as is the case of the petitioner/tenant on the second floor, do not

really exist and at best there is only a room having a T-iron roof and which

room with iron roof cannot be taken and used as a bedroom as held in

various judgments passed by this Court.

(iv) Therefore as compared to the need of the respondent/landlord

for three bedrooms, one drawing room, one store room and one puja room

i.e four big rooms and two small rooms, the respondent/landlord has just two

bed rooms, and one store room. Therefore, I do not find any illegality in the

conclusion of the Additional Rent Controller that the respondent/landlord

has only two rooms and he needs the room in tenancy with the petitioner.

10. I may also state that the Additional Rent Controller has rightly

refused to take the room in ownership with the son in another premises

bearing no.5174 as an alternative accommodation because again it is settled

law that a landlord is not expected to partition his family for the convenience

of the tenant.

11. Learned counsel for the petitioner/tenant argued that the

respondent/landlord has not entered into the witness box and therefore

bonafide necessity is not proved, however, it is seen that the son of the

respondent has appeared in the witness box. It is not the law that a landlord

necessarily must step into the witness box, inasmuch as, evidence is led in a

case by any person who is personally having knowledge of the facts of the

case, and surely the son of the respondent/landlord who is living with the

respondent/landlord being personally aware of the facts of the case could

surely have deposed with respect to the facts of the case. This argument

therefore urged on behalf of the petitioner/tenant is also rejected.

12. In view of the above, it is clear that the petitioner/tenant by

hook or by crook wants to illegally continue to stay in the tenanted premises.

Not only that, as stated above, the petitioner/tenant has not paid any user

charges or rent from the year 1979 i.e from 35 years. Therefore, this

petition is dismissed with costs of Rs.1 lakh, to be paid within four weeks.

Costs essentially in this case have partly the flavour of recompense to the

respondent/landlord for the stay of the petitioner/tenant in the suit premises

without paying even the nominal rent of Rs.60/- per month. I also order that

in view of the ratio of the judgment of the Supreme Court in the case of

Atma Ram Properties (P) Ltd. Vs. Federal Motors Pvt. Ltd. (2005) 1 SCC

705, that, the petitioner/tenant from the date of the order in the eviction

petition on 4.5.2012 would be liable to pay charges for use and occupation at

Rs.3,000/- per month in view of the order passed by the learned Single Judge

of this Court on 20.3.2013 and which order will stand confirmed in terms of

today's judgment. I may note that the Supreme Court in the judgment in the

case of Ramrameshwari Devi & Ors. Vs Nirmala Devi & Ors. (2011) 8

SCC 249 has held that in certain frivolous litigation appropriate costs must

be imposed. I am empowered to impose costs in terms of Volume V of the

Punjab High Court Rules and Orders (as applicable to Delhi) Chapter VI

Part I Rule 15. It is clarified that the petitioner/tenant will be liable to

continue to pay the charges for use and occupation till the time the

respondent/landlord is handed over the possession of the suit premises, and

whatever amounts the respondent/landlord will receive will be subject to

final determination in any civil proceedings if the same are initiated.

AUGUST 06, 2014                                VALMIKI J. MEHTA, J.
Ne