Kanta Devi & Ors. vs Jaswinder Walia & Ors.
2014 Latest Caselaw 411 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of Decision: 22.01.2014

+                         RC.REV. No.40 of 2014

KANTA DEVI & ORS.                                            ..... Petitioners
             Through:               Mr. Sunil Kapoor, Adv.

                                       versus

JASWINDER WALIA & ORS.                                       ..... Respondents
              Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI

NAJMI WAZIRI, J. (Oral)

This revision petition impugns an eviction order dated 10.9.2013

passed under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (the Act).

Leave to defend was granted to the tenant, evidence was led by the parties

and after completion of trial and appreciation of evidence the learned ARC

(the Trial Court) has passed the impugned order.

The eviction petitioner's case was that he was the landlord/owner of

property bearing No.65/57, New Rohtak Road, Karol Bagh, New Delhi in

which the tenant (the petitioner herein) was occupying one room measuring

9ft. X 14ft. on the ground floor at a monthly rent of Rs.330/-. Originally the

room was rented out to Shri Ram Saran s/o Shri Kripa Ram and after his

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demise in 2005, his legal heirs continued to occupy the premises but now it

was required since the landlord had a large family comprising himself, his

wife, one son and one daughter, aged 22 years and 21 years respectively;

that he had only one room accommodation which was not sufficient for the

needs of his family; that after the family settlement the portion with the

tenanted premises came to his share, hence, rent was collected by Shri Ram

Saran and that he had no other alternate accommodation in Delhi.

In reply the tenant had denied the ownership of the tenanted premises

by the eviction petitioner or that there was a relationship of a landlord and

tenant between them. It was also argued by the tenant that the premises

were of commercial nature hence it could not be put to residential use as

sought by the eviction petitioner; that the rent was being paid to the brother

of the eviction petitioner and a few times the petitioner had recovered the

rent from the predecessor-in-interest of the tenant on the pretext that since

his brother was not available and that, he was collecting the rent under his

brother's authorisation; that such collection of rent did not make the eviction

petitioner a landlord since he was not collecting it in his own right but on

behalf of somebody else; that the petition was bad for non-joinder of the

parties and other co-owners of the property had not been impleaded in it;

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that the site plan filed by the petitioner was incorrect and the tenanted

premises being a garage with one entrance door, no window, no ventilators,

no facility of water, kitchen, bath, toilet, etc. was unfit for residential

purposes; that there was a contradiction between the family settlement

whereby the tenanted premises are deemed to have come to the share of the

eviction petitioner whereas the latter states that he is also the co-owner of

the entire building.

The tenant has also argued that the tenanted premises forms a part of a

three storey building consisting of about 20 rooms, 6-7 bathrooms, 6-7

latrines and 6 kitchens besides stores, miyanis, etc. and the entire building

was in the possession of the petitioner, hence it could never be said that the

petitioner was short of accommodation and that, in any case, the petitioner

was in possession of six rooms along with two toilets, two bathrooms, two

kitchens, two stores and a miyani.

After appreciating the evidence on record, the Trial Court concluded

that the eviction petitioner was a co-owner of the tenanted premises, i.e. he

had a superior right than that of the tenant. The Trial Court took into

account the deposition of Shri Nitin Walia, PW1, and Shri Ashwani Kumar,

RW1, the affidavit filed by Mr. Magender Walia as well as to the reference

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of his having earlier filed a petition under Section 14(1)(e) of the Act

claiming himself to be the owner of the tenanted property. In the said

petition one Shri Dharamveer Walia had sought an impleadment under

Order I Rule 10 CPC claiming himself to be the father of the deceased,

Devender Walia. However, his application was dismissed in default.

In the cross-examination it was admitted that Shri Magender Walia

and his brothers were the co-owners of the property and that Shri

Dharamveer Walia, father of Shri Magender Walia, used to collect the rent,

however, whenever the latter collected the rent, he was accompanied by Shri

Dharamveer Walia. The Trial Court took into consideration a photocopy of

a sale deed dated 10.5.1979 which showed that Shri Magender Walia, Shri

Satinderjit Walia, Shri Devender Walia and Shri Rajinder Prasad Walia had

purchased the property of which the tenanted premises formed a part. There

is no denial that the original petitioner, i.e. predecessor-in-interest was the

owner of the property. The Trial Court found that there was tacit admission

in the Written Statement to the extent that Shri Devender Walia was a co-

owner of the property. The Trial Court took into account that Shri

Magender Walia had filed a petition before the Rent Controller to the effect

that he would not claim rent of the suit property from the respondents but

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that the petition be decided in his favour, established by preponderance of

probabilities that the present eviction petitioners were, at least, co-

owners/co-landlords of the tenanted premises.

The tenant's arguments that the case was bad for non-joinder of

parties as other co-owners had not been made parties was rejected in view of

the settled legal position by the Supreme Court in Mohinder Prasad Jain v.

Manohar Lal Jain (II) 2006 SLT 608 and by this Court in K.C. Aggarwal

v. Hardip Singh 2005 (116) DLT 41.

In his evidence Shri Nitin Walia, the legal representative of the

deceased eviction petitioner Shri Devender Kumar Walia has deposed that

only one room was available to his family which include his mother; the

accommodation was insufficient; that his married sister often used to visit

them but was unable to stay with them over-night because of the acute

paucity of space; that he bona fidely required one bed room each for himself,

his mother, his sister and for guests and relatives, one drawing room, one

dining room, one pooja room and one store room whereas currently all he

had was the constricted accommodation of only one room and one miyani

(wall shelf). In his cross-examination he admitted that there are 13 rooms for

the larger joint family comprising 24 family members. He denied the

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existence of 20 rooms and to the share of any more rooms in the building; he

submitted that the other areas of the building were occupied by his relatives

as per the family settlement.

The Trial Court took into consideration the fact that the tenant was

unable to controvert the site plan filed by the eviction petitioner; that the

tenant had never visited the first and the second floors of the property,

therefore, his estimation of 20 rooms was only an assumption; he denied the

marriage of the daughter of Shri Devender Walia and whether she visited

her mother and brother regularly; although the tenant had alleged that the

entire ground floor of the property except the tenanted premises, was in

occupation of the petitioners. Interestingly, in his cross-examination the

tenant admitted that his stand taken on an assumption. This is indeed,

proven by the fact that while the tenant denied that three rooms were in

possession of Shri Magender Walia and one in the possession of the

petitioner, in the very next sentence of his statement he could not deny or

admit the correctness of the site plan.

In the circumstances, the Trial Court found the testimony on behalf of

the landlord to be more reliable since it was based on firsthand experience

rather than that of the tenant which was based on assumption and mere

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conjecture. The contention of the tenant that the site plan was wrong was

rejected by the Trial Court on the ground that it was a bald statement

without any proof as to how the plan was wrong and it was not rebutted by

the respondent by filing a counter site plan either. The Trial Court

considered that the family of the deceased petitioner comprised of his widow

and two children; the daughter had been married and the son though was of

marriageable age could not contract the marriage because of lack of space

and this fact was not rebutted; and in view of the paucity of space the bona

fide need was clearly established. The Court also dismissed the argument of

the tenant regarding res judicata on the ground that the earlier petition

preferred by Shri Magender Walia under Section 14(1)(e) was dismissed in

default; furthermore the earlier petition was filed by Shri Magender Walia

whereas the subsequent/current petition was filed by Shri Devender Walia

for his needs, the cause of action, i.e. need in both cases was different.

Accordingly, the impugned order was passed.

The present Revision Petition has been filed on the same grounds as

were raised before the Trial Court. However, insofar as each of the aspects

have been clearly dealt with in detail after appreciating the evidence, there is

no reason for this Court to interfere with the same. It is settled law that

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while exercising jurisdiction under Section 25B(8) of the Act, this Court

does not act as a court of appeal, it only has to see whether the ARC has

committed any jurisdictional error in passing the order on the basis of the

material available before it. In Ramesh Chand v. Uganti Devi 157 (2009)

DLT 450 and Mohan Lal v. Ram Chopra & Anr. AIR 1982 Delhi 405, this

Court exhaustively dealt with Section 25-B of the Act. On the scope of the

proviso to Sub-section (8) of this Section, after examining the judgment of

the Supreme Court in Hari Shanker and Ors. v. Rao Girdhari Lal

Chowdhury, AIR 1963 SC 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

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exercise of its jurisdiction under proviso to Section 25B(8) of the Act."

Furthermore, the Hon'ble Supreme Court in another case tilted as

Chaman Prakash Puri v. Ishwar Dass Rajput and Anr., 1995 Supp (4)

SCC 445 has held that if the Rent Controller finds that the landlord was in

bona fide need of premises, the High Court in revision would not re-

appreciate evidence and reverse the finding. In Ram Narain Arora v. Asha

Rani & Ors., (1999) 1 SCC 141 the Supreme Court held as follows:

"It is no doubt that the scope of a revision petition under Section 25-B(8) proviso of the Delhi Rent Control Act is a very limited one, but even so in examining the legality or propriety of the proceedings before the Rent Controller, the High Court could examine the facts available in order to find out whether he had correctly or on a firm legal basis approached the matters or record to decide the case. Pure findings of fact may not be open to be interfered with, but in a given case, the finding of fact is given on a wrong premise of law, certainly it would be open to the revisional court to interfere with such a matter."

This Court has held in Ram Nath v. Rajendra Pershad (2003) 12

SCC 127 that the requirement of a married daughter for a room for herself

in her father's residence is not diminished simply because of her residing in

her matrimonial home. The father's home would always be a refuge and an

abode of emotional sustenance for a married daughter. In fact, the need for

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it grows all the more as she would visit her father's home along with her

children and sometimes with her in-laws also. Indeed after her marriage the

need for additional space in her father's home would increase. The tenant's

denial of his knowledge of the marriage of the deceased petitioner's

daughter Ms. Neha Walia, (respondent No.3 in this revision petition) does

not inspire confidence since they all were cohabiting in the same building

and marriages not hidden from neighbours.

In view of the aforesaid discussion this Court is of the view that

conclusion arrived at by the Trial Court is based upon the material on record

and the view taken by it is plausible in law. The impugned order does not

suffer from any material irregularity or infirmity calling for interference by

this Court.

The petition is without any merit and is accordingly dismissed.

JANUARY 22, 2014                                     NAJMI WAZIRI, J.
b'nesh

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