Brij Mohan vs Ishwari Prasad Nigam
2014 Latest Caselaw 42 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Order Pronounced on: January 03, 2014

+                         RC. Rev. No.80/2011

       BRIJ MOHAN                                          ..... Petitioner
                          Through      Mr.Vivek Sharma, Adv.

                          versus

       ISHWARI PRASAD NIGAM                     ..... Respondent
                    Through  Mr.M.R.Shamshad, Adv. with
                             Mr.Shashank Singh, Adv.
       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The petitioner by way of the present petition under Section 25B(8) of Delhi Rent Control Act (hereinafter referred to as "the Act") assails the eviction order dated 15th January 2011 passed by the court of Senior Civil Judge-cum-Rent Controller, Karkardooma Courts, Delhi.

2. Brief facts of the case are that the respondent herein filed an eviction petition against the petitioner alleging bonafide requirement for the purpose of residence for himself and his family members in respect of the tenanted shop i.e. shop no.2 measuring 8'10x7' in the property no. B-254, Gali No. 11, Bhajanpura, Delhi-53 (hereinafter referred to as "the suit property"). The petitioner was inducted as tenant on 1st April, 1986 in respect of the tenanted shop on monthly rent of Rs.300/- excluding water and electricity charges. Current rent is Rs.585/- per month excluding water and electricity charges. Since then the petitioner is running a shop with style and title M/s Brijmohan Crockery & Gift Centre.

3. It was stated in the petition that that respondent is an old person, aged about 76 years (at the time of filing of the eviction petition) and due to ill health requires assistance of his children, however, accommodation available with him was not sufficient to accommodate them. The family of the respondent consisted of himself, his wife (who is suffering from various old age diseases) and four married sons and grandchildren. While three married sons of the respondent were living with him at the time of filing of the eviction petition, the fourth son was living on rent after his marriage due to lack of accommodation. It was averred that the respondent was facing difficulty to accommodate sixteen family members and the guests visiting him.

4. It was stated in the petition that though the tenanted shop was let out for commercial purposes, the respondent had now decided to use the same as residence for family members, to accommodate his fourth son who lived on rent and the growing grandchildren of the respondent who required bed room and study room. Besides this, the respondent stated to be requiring one drawing room and one guest room.

5. It was stated in the eviction petition that the petitioner had been running a crockery shop from the tenanted shop and had also purchased another property bearing no. B-251, Gali No. 11, Bhajanpura, Delhi and had been running the same business from that shop under the name of M/s Chawla Crockery and Gift Centre.

6. The petitioner herein moved an application for leave to defend wherein he denied the relationship of landlord-tenant between the parties and it had been submitted that the mother of the petitioner Smt. Dropati Devi w/o Late Sh. Gurdasmal Sindhi is the tenant in the tenanted shop and that she has given the tenanted shop to the wife of the petitioner Smt. Pooja to

run her business and that the petitioner and Sanju Chawla @Puran Bhagat have nothing to do with the business of M/s Chawla Crockery and Gift Centre. It was stated that the wife of the petitioner is paying the entire earnings to the mother of the petitioner who is old and blind. It was further stated that her sons are not maintaining her and in fact the wife of the petitioner is maintaining the mother of the petitioner.

7. It was averred in the leave to defend application that the respondent had concealed material facts that he had sold one shop to someone and also constructed toilet and bathroom by demolishing another shop. Further it was averred that the respondent had concealed that in July 2010, he had let out one shop to a mechanic who deals in electric appliances etc. and the eviction petition has been filed to harass the petitioner.

8. In the reply to the said leave to defend application, the respondent claimed to be the owner of the property and contended that the petitioner had shifted his business after purchasing another property and had given the tenanted shop to his brother who was doing the business of Tea Stall. The other averments of the petitioner were denied and contested.

9. The learned Trial Court while dismissing the application for leave to defend of the petitioner observed that the petitioner had not denied the ownership of the respondent qua the tenanted shop but had merely contended that there was no relationship of any kind between the parties. In the absence of any denial of ownership of the respondent, the petitioner was deemed to have admitted the same. The learned Trial Court further noticed that the petitioner apart from the bald averment so made, had not placed on record any documentary evidence to show that his mother was a tenanted shop nor had it been specified as to when and by whom she was inducted as a tenant, while the respondent had filed photocopies of the rent receipts for

the months of October and November 2010 issued by him in favour of the petitioner, which was neither challenged by the petitioner nor were the signatures thereon denied by him. The said fact clearly established the relationship of landlord-tenant between the parties in view of the learned Trial Court.

10. The learned Trial Court noticed that the respondent had disclosed the entire details of the site plan, stated the details of his family tree, the specific requirements of his son and grandsons and also placed on record the photocopy of his ration card in order to substantiate his claim and that the petitioner did not dispute either the number of family members of the respondent or the accommodation available with the respondent. The petitioner also did not dispute the site plan filed by the respondent and therefore, the same was opined by the learned Trial Court to be accepted as correct. The contentions of the petitioner that the respondent sold one shop to someone else and rented out one shop to another tenant were considered to be bald claims and were not substantiated by the petitioner. Even otherwise, the respondent had disclosed in the site plan that he had sold one of the shops in 1995 and so far as the rented shop is concerned, the petitioner did not name the alleged tenant in his application. The learned Trial Court opined that this itself proved that the defence raised by the petitioner lacked merit and did not qualify as a triable issue.

11. The learned Trial Court opined that the owner of a premises is entitled to make himself comfortable in his house as he is the best judge of his requirement and that the tenant cannot dictate terms as to how and in what manner the landlord should make use of the space available with him it was further opined that the landlord is entitled to spend his old age in the company of his children and grand children and that he cannot be deprived

from this merely to accommodate the tenant.

12. With these observations, dismissing the application for leave to defend of the petitioner, the learned Trial Court passed the impugned order and aggrieved thereof the petitioner filed the present petition.

13. 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 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. 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 25B(8) of the Act. 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 would have reached on the

material available before him. 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."

14. From the pleading and record of the case, certain undisputed facts are:

(i) The respondent is absolute owner of entire premises No.B-254, Gali No.11, Bhajanpura, Delhi-53. He is 76 years old and he is not having a good health and needs assistance of his children but the accommodation with him is not sufficient to accommodate them comfortably. The respondent has family comprising old aged wife, aged about 63 years and suffering from diabetes and various others diseases relating to old age, four married sons and their children. The petitioner had not denied before the learned Trial Court that respondent's family comprising 16 members. It is contended by the respondent that the intention of the petitioner is to delay the eviction of the tenanted shop. The education of grand children of respondent is suffered for above said reasons.

(ii) The petitioner was inducted as tenant on 1st April, 1986 in

respect of the tenanated shop on monthly rent of Rs.300/- excluding water and electricity charges. Current rent is Rs.585/- per month excluding water and electricity charges. Since then the petitioner is running a shop with style and title M/s Brijmohan Crockery & Gift Centre.

15. It is stated by the respondent that the petitioner has purchased a property, measuring about 60 square yard, bearing no. B-251 (Near Bijli Ghar), Gali No.11, Bhajanpura, Delhi-53 and its area is approximate about 500 sq. feet for commercial use, and after purchasing of the said property, he shifted there and doing same business with title M/s Chawla Crockery & Gift Centre. He has clearly mentioned in side board "Brij Mohan Crockery & Gift Centre Walo Ki Dukan Bijli Ghar Ke Paas Chali Gai Hai" which is shown in photograph annexed as Annexure A.

16. It is also stated that the petitioner after shifting there is running his business. He gave the tenanted shop to his brother Sh.Puran Bhagat for doing his business tea stall as sub-tenant which is shown in photograph annexed as Annexure B.

17. The respondent has pleaded that he is admittedly entitled to file the eviction petition for need for separate accommodation for his children who are dependent upon him and if his requirement is bonafide and genuine, then an order for eviction can be passed by the Court.

18. In the similar situations, courts have passed the orders of eviction. In this regard, the following decisions are necessary to be referred:

(i) In Kharati Ram Khanna & Sons. vs. Krishna Luthra, 2010 (172) DLT 551, it was held that "if respondent wants to establish her sons separately and independently in her property and in the same trade, then by no stretch of imagination it can

be said that requirements of respondent are neither bonafide nor genuine."

(ii) In Labhu Lal vs. Sandhya Gupta, 2010 (173) DLT 318 it was held that "The requirement of the respondents son and daughter-in-law for expanding their clinic being run in the premises in question is most bona fide and genuine since they are dependant for accommodation on the respondent."

(iii) In the case of Sh. Ravinder Singh vs. Sh. Deepesh Khorana, 2013 (1) RCR (Rent) 369, it was observed that "the son of the respondent is unemployed and is dependent on respondent for his livelihood. It is nothing but bona fide for the respondent to require the suit shop to set up a computer business for his son and to help him find a source of income and subsequently settle down in life."

(iv) In Devi Ram & Ors. vs. Ram Kapoor, 76 (1998) DLT 637, it was held that "it is well settled that the landlord cannot be dictated the way he shall reside nor can the mode of division of rooms can be prescribed for each family member. Sometimes the children in the family cannot be accommodated in the rooms used by the adults and it is illogical to hold that minor children can be accommodated with the elders of the family."

(v) In Waryam Singh Duggal vs. Smt. Savitri Devi, (1984) 1 RCR 52, it was observed that "the distinguishing feature of the second alternative is that the landlord does not intend to reside in the premises himself see Sain Dass Berry v. Madan Lal Puri 1971 RCR 887. He needs them only to accommodate a member of his family 'dependant' on him. It is in this case that

dependence on the landlord is a requirement."

19. Considering the facts and circumstances of the present case, and in view of the settled law, this Court also is of the considered view that no triable issues are raised by the petitioner. I am not inclined to interfere with the impugned order. Accordingly, the petition is dismissed.

20. However, in the interest of justice, equity and fair play, the petitioner is granted six months time to vacate the tenanted shop, i.e. shop no.2 forming part of property bearing no.B-254, Gali No.11, Bhajanpura, Delhi- 53, by handing over peaceful possession to the respondent. During this period, the petitioner shall not sublet or create any third party interest in the tenanted shop.

(MANMOHAN SINGH) JUDGE JANUARY 03, 2014