Dr.Madan Mohan Luthra vs Santosh Rani
2014 Latest Caselaw 2995 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                              Date of Decision: 08.07.2014
+       RC.REV. 219/2014

        DR.MADAN MOHAN LUTHRA                      ..... Petitioner
                    Through: Mr. Satish Sahai with Mr. J.R.Bajaj
                             and Mr. Jai Sahai, Advocates.

                          Versus

        SANTOSH RANI                                      ..... Respondent

                          Through:    Mr. Chirag Rana, Proxy Counsel for
                                      Mr. Vivek Luthra, Adv.
        CORAM:
        HON'BLE MR. JUSTICE NAJMI WAZIRI

%       MR. JUSTICE NAJMI WAZIRI (Open Court)

1. This petition impugns an eviction order dated 18th February, 2014,

whereby the petitioner's/tenant's leave to defend application was rejected

and he has been directed to vacate the tenanted premises i.e. a shop

admeasuring 18 sq. yr. on the ground floor in house No.3406, Mahendra

Park, Shakur Basti, Delhi-110034 .

2. The respondent/landlord had petitioned for the eviction of the

premises on the ground that she was suffering from afflictions related to

high blood-pressure and severe osteoarthritis with "knee lock"; the premises

were required by her for her own residential use as well as for use by her

family members, which comprised her three sons with their respective

families and two married daughters who used to visit her along with their

respective families; the first floor of her residential accommodation above

the tenanted premises comprised of two bedrooms, one drawing room, one

dining room, a kitchen, one storeroom and a small pooja room; out of the

two bedrooms, one was occupied by her and the other by her son Jitender; in

the second floor residential accommodation which comprised two rooms,

two kitchen and a storeroom, her other two married sons were using one

room each along with her growing grandchildren; her married daughters

used to visit her along their respective families but due to non-availability of

separate rooms for them, they used to be confined and cribbed with their

families in the drawing and dining rooms; and finally, that she had no other

alternate suitable accommodation to meet her bonafide requirement.

3. The tenant sought leave to contest the petition on the ground that the

landlady had sufficient accommodation for herself; her children being

married were not dependent upon her; the tenanted premises was being used

for running a doctor's medical clinic which was not in any way, suitable for

residential use as it lacked the necessary amenities like a kitchen, toilet,

window, ventilation, etc.; that earlier some shops were got vacated by the

landlord but the same were not put to residential use; instead, she had

removed the shutters of the shop on the left side of the tenanted shop and

was using the space for car parking while the shop area was being used as a

passage, and that the tenant had never had any dispute with the landlady,

neither he ever misbehaved with her.

4. The Trial Court found none of these issues triable since each of them

tended to dictate to the landlady as to how she should use her property. It is

settled law that such prerogative is not available to a tenant. The Court

further found that the landlady had indeed gone on to explain how the entire

property available with her both on the first and second floor, was being put

to use. Therefore, her not placing any site plan on record for the first floor

would not make any difference. She could not be blamed for concealing any

facts. The Court allowed the eviction petition in view of the number of

family members who had to be accommodated in the very limited space.

The tenant had failed to show that the landlady had suitable alternate

accommodation which could meet her needs. For the tenant to argue that the

landlady could use the recently vacated ground floor in this manner or that is

not acceptable since such right is not available to a tenant.

5. Before this Court, the counsel for the petitioner doubted that the

landlady was suffering from severe osteoarthritis. He submitted that the

medical certificate of illness was of the year 2009 whereas the eviction

petition was filed in the year 2013. He submitted that if she was she really

suffering from any ailment she ought to have filed such petition earlier; that

the tenanted premises is a commercial premises, therefore, it is not to be

used for the aforesaid purposes and that the identically placed shops on

either side of the tenanted premises which have been vacated in the recent

past were not being utilized for residential purpose; that the petitioner, who

is a Doctor, had been witnessing the landlady to be hale and hearty and

leading an active family life i.e. she could be seen visiting market and

climbing stairs without difficulty. Therefore, as a practicing doctor his view

was that the landlady had fully recovered from her illness and could not be

said to be ill anymore, in any manner. Hence, her claim for additional space

on the ground floor, which was based on her medical certificate of alleged

ailment, was doubtful and it ought to be put to trial. Learned counsel for the

petitioner further submits that one hall on the ground floor in the rear portion

of the building, could easily have been taken for use.

6. This Court is of the view that the arguments advanced by the learned

counsel for the petitioner is untenable. It is not for the eviction-petitioner to

prove before the Trial Court (ARC) through evidence that he/she is suffering

from medical illness. A certificate in this regard would suffice unless ex-

facie shown to the contrary. For it to be a triable issue the tenant would need

to show something doubtful on record which would prima facie would raise

a doubt in the mind of the Court that landlord indeed did not suffer from

such an ailment. At the time of filing the petition in 2013, the landlady was

67 year of age and suffering from osteoarthritis. The medical certificate to

that effect has been adduced to the petition. The doctor/tenant whose

eviction is sought from the tenanted premises has tried to doubt the

continuation of the affliction to her bones simply because she was able to

more about. From the eviction-petition the landlady has not stated that she

is unable to move but that she has difficulty in using the "stairs to reach her

room on the first floor of the property". It is common knowledge that with

advancement of age the affliction of osteoarthritis gets worse unless it is

arrested by a curative therapy. It cannot be concluded that she had been

fully cured or that she was not suffering from pain simply because she could

move about. The tenant's argument that the landlady appear to be hale and

hearty is not acceptable since it is only a perception and not based upon

examination of a patient. Besides, it is not known whether the tenant/doctor

was specialized in osteopathy and whether he would have the requisite

expertise to either adjudge or medically comment upon the nature of the

disease or whether the landlady had been fully cured of her osteoarthritis.

The Court would lean in favour of the landlady in such a circumstance

believing her version to be true.

As regards the landlady was not using the two shops earlier vacated

on the ground floor, this Court is of the view that the same would

tantamount to trying to dictate the landlady as to how she should use her

property. The Trial Court noted that the landlady wanted the ground floor

area for her residential purposes. The tenanted premises/shop is in the

middle of two vacated shops. It may well be the objective of the landlady to

have the entire ground floor area developed into a proper residential space

so that she could utilise the entire space optimally. Until the present

premises were vacated, her objective for renovation and redevelopment of

the ground floor space for residential accommodation would be defeated.

7. The Trial Court distinguished the case from Zahida Begum v. Akhtar

Ali 2012 (1) RCR (Rent) 78, upon which reliance was placed by the tenant,

since in the present case the landlady had duly specified and disclosed the

area which were being occupied by her. The Trial Court relied upon the

case of Kishan Lal v. R.N. Bakshi 169 (2010) DLT 769 which holds that:

"....when the landlord shows a prima facie case, a presumption that the requirement of landlord is bonafide, is available to be drawn....... The landlord is the best judge of his requirement for his residential or business purpose and he has got complete freedom in the matter and it is no concern of the Courts ... ...The tenant cannot compel a landlord to live in a particular fashion."

8. The Trial Court further noticed that the tenants contention that earlier

also identical premises was got vacated by the landlady is not tenable. The

tenant's electricity connection was discontinued not on account of any

action of the landlord but due to non payment of the dues which was

required to be paid as per the use of the sub-meter.

9. The learned counsel for the petitioner has relied upon the case of

Aggarwal Papers v. Mukesh Kumar 194 (2012) DLT 605 to contend that

the tenant could not be thrown out till the landlord is able to make out a case

of bonafide requirement. However, this judgment would not be applicable to

the present facts since the landlady has already showed her bonafide need in

view of her limited accommodation and large number of family members.

10. Counsel for the petitioner further relied on the case of Banarsi Dass

Sodhi vs. Om Prakash 99 (2002) DLT 608 to contend that where the

landlord had converted his own residential rooms into shops and then sought

to evict his tenants for the sake of settling of his daughters and making them

earn a livelihood therefrom were arbitrary and not in accordance with law.

This Court is of the view that facts of the aforesaid case differ from the facts

of the present case, since the entire accommodation available with the

landlady were being put to residential use and ground floor space was

required for her own residential use. Therefore, there was no case of

conversion of any residential property into commercial property. Hence,

this judgment too would not be applicable to the present case. Counsel then

relies upon the case of M.M.Quasim v. Manohar Lal Sharma & Others

AIR 1981 SC 1113 to contend that the landlord does not have unfettered

right to re-enter premises of his choice and that he must prove that available

vacant premises are not suitable for his purpose. However, this case too

would not be applicable since, as demonstrated hereinabove, there was no

other alternate space available to the landlady to be put to use which could

be said to be alternate space available to her. Hence, her requirement of

bonafide need for the premises was clearly made out.

11. In Mishri Lal v. Ramesh Chander CRP-25/2014, this Court has held

that the need for accommodation of a married daughter in her parents' home

is an abiding need. Her parental home is always a source of guidance and

emotional psychological anchor. It becomes all the more acute when she is

accompanied by her husband and children. They visit her parents' home not

as casual guests but as family members and would need some regular room

with privacy, so as to spend some quality time with the near relatives.

12. In view of the fact that the Trial Court has taken into consideration

each of the contentions raised by the tenant and found them not to be triable,

and the fact that all the arguments of the tenant were more in the nature of

directing the landlady as to how she should use her available residential

accommodation so as to not to disturb the continuation of the tenancy of the

tenant, the tenant's arguments are not tenable in law. The impugned order

does not suffer from any material irregularity. The reasoning for the

conclusion arrived at is based on the record and the view taken is plausible

in law. There is no reason for this Court to interfere with the impugned

order. The petition is without merit and is accordingly dismissed.

NAJMI WAZIRI (JUDGE) JULY 08, 2014/acm