M/S Metropolitan Book Co. Pvt. ... vs Shri Ajay Rastogi & Ors.
2014 Latest Caselaw 3436 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RC.Rev. No. 484/2013

%                                              31st July , 2014

M/S METROPOLITAN BOOK CO. PVT. LTD.          ......Petitioner
                 Through: Mr. Sandeep Sethi Sr. Adv. with Mr.
                           Abhishek Singh, Mr. Pankaj Sharma
                           and Mr. Chirojeet Mukherjee, Adv.

                           VERSUS

SHRI AJAY RASTOGI & ORS.                                    ...... Respondents

                  Through:               Mr. Rajat Aneja and Mr. Aarohi
                                         Holani, Adv. for R-1 to 6.

                                         Mr. Attin Shankar Rastogi, Adv.

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

To be referred to the Reporter or not?         Yes


VALMIKI J. MEHTA, J (ORAL)

1. This revision petition is filed under Section 25-B(8) of the

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

impugning the judgment of the Additional Rent Controller dated 3.9.2013 by

which the Additional Rent Controller has dismissed the leave to defend

application filed by the petitioner-tenant and has granted an eviction order to

the respondents/landlords(essentially for respondent no.1) with respect to the

tenanted premises which comprises of one hall on the ground floor on the

property no. 5053, 1, Netaji Subhash Marg, Main Daryaganj, New Delhi as

shown in red colour in the site plan filed along with the eviction petition for

the residential use of the respondent no.1 and his family members, especially

the mother who is aged about 83 years as of today.

2. In a bonafide necessity petition there are three aspects which

are required to be shown for an eviction order to be passed (i) existence of

relationship of landlord and tenant; (ii) the landlord requires the premises for

his bonafide use and/or for the use of his family members, and (iii) landlord

has no other alternative suitable accommodation.

3. The aspect of existence of relationship of landlord and tenant

between the parties was not disputed before the Additional Rent Controller

and is also not disputed before this Court. What is in issue is actually the

availability of an alternative suitable premises and more importantly whether

the tenanted premises which have been let out for commercial purposes can

be evicted for residential purposes.

4. Let me turn to these issues and examine the same as to whether

they raise triable issues for grant of leave to defend.

5. At the outset let us see certain admitted facts with respect to the

members of family of the respondents as also the accommodation which is

available to the respondent no.1 and his family members. Admittedly, the

respondent no.1's family comprises of himself and today respondent's age is

56 years, his wife's age is 48 years, one son aged about 25 years, one

daughter aged 26 years and one mother aged 83 years as on today. It is the

case of the respondent no.1/landlord that the tenanted premises being

situated on the ground floor are required not only for the mother as in her

advanced age she cannot climb up to the second floor and also because she

is suffering from various ailments including arthritis of knees , the tenanted

premises are also required for the need of the respondent no.1 and his wife

who are also in their advanced age and therefore find difficulty in climbing

to the second floor. The tenanted premises on the ground floor are therefore

stated to be required.

6. So far as the aspect of the family members of the respondent

no.1/landlord is concerned, a reading of the leave to defend application

shows that there is no dispute with respect to who are the family members of

the respondent no.1/landlord and their ages, except of course with respect to

the mother, it is stated that she is not economically dependent upon the

respondent no.1/landlord for accommodation.

7. In my opinion, from the fact that the mother is 83 years of age,

even taking that she does not suffer from any illnesses, and noting that in

any case the respondent no.1/landlord has filed the medical certificates with

respect to the ailments being suffered by the mother including heart

problem, arthritis etc, the advanced age of 83 years of the mother is such

that there can be no cavil to the requirement of the mother for use of the

ground floor and not climbing to the second floor of the premises. Also,

even the advanced ages of respondent no.1 and his wife in the 50's is

sufficient for them to claim a room on the ground floor. Accordingly, in the

opinion of this Court there is no illegality or lack of bonafides in the claim of

the respondent no.1/landlord for the ground floor tenanted premises on

account of the advanced ages of the mother of the respondent no.1,

respondent no.1 himself and his wife because old age itself entitles a person

not to climb stairs if he can afford not too on account of a premises on the

ground floor which can be made available. Therefore, in my opinion, claim

of the ground floor premises is justified. Also merely because the mother has

her own income cannot mean that she is not a family member of respondent

no.1 because not only it is settled law in view of a series of judgments of the

Supreme Court that a person does not cease to be a family member just

because that person has an income. Surely a son is duty bound to look after

his aged mother as a family member.

8. The entire premises bearing no. 5053 was comprised of the

ground floor, first floor and second floor. These entire premises are owned

jointly by the six respondents/landlords of which only the respondent no.1 is

living in Delhi and on the second floor above the tenanted premises only

which is in his possession. The other respondent nos. 2 to 6 are living

outside Delhi at Lucknow, Kolkatta and Dehradun, and who are admittedly

co-owners of the entire property and averred to be in possession of the first

floor of the property which is lying vacant and locked. It is contended by

the petitioner/tenant that this first floor of the premises is available to the

respondent no.1/landlord for user and therefore, the same would be an

alternative premises.

(i) In my opinion, the argument in this regard is misconceived

because once there are other co-owners of the property besides the

respondent no.1, merely because the first floor portion is lying vacant and

locked but the same is stated by the respondent no.1 to be in possession of

the other co-owners, this Court cannot force the other co-owners who are

entitled on account of co-ownership to possession of some part of co-owned

property to vacate the portion in their possession. Surely no co-owner would

like to surrender possession of that part of property, possession of which is

with him/her to another co-owner and therefore there is no illegality if the

portion with the co-owners is not considered as an alternative suitable

accommodation. Also, the first floor is stated to be used by other co-owners

for residing when they come to Delhi. Further, admittedly this

accommodation with other co-owners is on the first floor, and not on the

ground floor, and therefore on this additional reason that the first floor of the

property is not suitable as the ground floor for aged people, the first floor

cannot be said to be an alternative suitable accommodation.

9. The petitioner-tenant had contended that there are a total of five

properties which are available to the respondent no.1 and his mother and

which are pleaded to be alternative suitable accommodations, and which

are:-

(i) property no. 4/7-2533/X, Asaf Ali Road, New Delhi.

(ii) property no. 967-68, Bhojpura, Maliwara, Delhi

(iii) property no. 97, Hindi Park, Darya Ganj, New Delhi,

(iv) property no. 4910, Darya Ganj, New Delhi, and,

(v) property no. 757-758, Chandni Chowk, Delhi.

10. Let us examine the position as to whether the aforesaid

properties would be alternative suitable residential accommodation available

to the respondent no.1 and his family members. Firstly, at the outset I must

note that the law does not expect the landlord to partition his family for the

convenience of the tenants. Once the properties which are said to be

alternative suitable residential properties are far away from the property

where the tenanted premises are located and on the second floor of which

property admittedly the respondent no.1 is residing with his family

members, law does not require and nor does this Court expect that some

family members will live in one property and some live in another property

far away. A landlord is entitled to keep his family members together, and at

the convenience of the tenant he is not expected to have separate residences

for separate members of the family by dividing/partitioning the family so as

to say. Therefore even assuming the other properties are available, and

which actually they are not as stated below, these other properties situated

far from the present residence of respondent no.1 and his family members

cannot be considered as alternative suitable accommodation.

11. Let us now take each of the properties as pleaded by the

petitioner /tenant to examine whether any of them would be an alternative

suitable accommodation. The first property is the property no. 4/7-2533/X,

Asaf Ali Road, New Delhi. In this property respondent no.1 is a co-owner

and in the reply to the leave to defend application it is shown that this

property is not vacant because the ground floor of the same is occupied by

Assistant Registrar of Delhi Development Authority and the first floor is

occupied by a Communist Party of India since 2000. These facts which

have been stated by the respondent no.1/landlord in the reply to the leave to

defend application and they have not been disputed in the rejoinder filed by

the petitioner/tenant, and therefore, once this property is not vacant, this

property cannot be considered as an alternative suitable accommodation.

12. The second property is the property at 967-68, Bhojpura,

Maliwara, Delhi but this property is not owned by the respondent no.1 nor

by any of his family members including the mother as per reply filed in the

application for leave to defend. Again there is no adequate challenge in the

rejoinder which is filed by the petitioner/tenant because just a self-serving

denial is made and which is not enough to raise a triable issue because the

respondent no.1/landlord has clearly stated that neither he nor any of his

family members have any right, title and interest in this property. No

documents showing that either the respondent no.1 or his family members

including the mother have any ownership interest in this property have been

filed on record. Self serving averments of bald denials cannot make the

landlord owners of a particular property although the landlord is not the

owner of such a property and such issues raised by the tenants if are allowed

to be pleaded as triable issues then in every case tenant will plead ownership

of a particular property not owned by the landlord and which plea would be

contended to entitle leave to defend. This however cannot be. I therefore

hold that since the property at Maliwara does not belong to the respondent

no.1 or any of his family members, the same is not an alternative suitable

accommodation.

13. So far as the third and fourth properties are concerned, the

respondent no.1 has stated in his reply to the leave to defend application that

these properties are in fact one and the same because the plot is numbered 97

and on which plot the property no. 4910 has been constructed. These

properties also have been specifically pleaded by the respondent no.1 not to

be owned either by him or by any of his family members and therefore

adopting the reasoning already given with respect to the property at

Maliwara, this argument of the petitioner/tenant is also therefore rejected.

14. That takes us finally to the property no. 757-758, Chandni

Chowk. The respondent no.1/landlord has pleaded in the reply to the leave to

defend application that this is a commercial property jointly owned by the

respondent no.1 and his mother from where the business of cloth is being

carried out and which is duly reflected in the income tax return, copies of

which have been filed. Also, counsel for the respondent no.1 rightly

contends that only those grounds which are pleaded in the leave to defend

application have to be considered by the Additional Rent Controller and this

Court cannot consider this ground of the property at Chandni Chowk in view

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

Singh Vs. Satpal Singh (dead) through LRs (2010) 2 SCC 15 that beyond

the statutory period of 15 days for filing a leave to defend application a

tenant cannot file any additional grounds or additional affidavits or

additional documents because whatever has to be stated for seeking leave to

defend has necessarily to be stated only within the inflexible mandatory

statutory period of 15 days provided under the Delhi Rent Control Act, 1958

as long as the aspects/facts/events existed before the 15 day period of filing

of the leave to defend application. Therefore, looking at it in any manner as

to on merits or with respect to not allowing this plea to be raised once it is

not raised in the leave to defend application, the existence of the property at

Chandni Chowk cannot be said to be an alternative suitable accommodation

including for the reason that the same is not vacant and is being used for

business purposes.

15. The last argument which was urged on behalf of the

petitioner/tenant was that the lease deed with respect to the property in

which the tenanted premises are situated shows that the same is to be used

only for commercial purposes and therefore the suit premises cannot be used

for residential purposes. Reliance is placed upon by the petitioner upon

Clause I(vi) of the Perpetual Lease Deed dated 17.2.1942 in support of the

arguments, however, when this subject Clause is seen, this Clause nowhere

bars user of the ground floor portion of the property for residential purpose

and all that is written in this Clause is that the entire suit property will be

used for shops with residential purpose. It is not the subject matter of lease

that there is not any restriction put on the landlord that the ground floor can

only be used for commercial purposes and not for residential purposes.

Learned senior counsel for the petitioner also agrees that he is not able to

show any statutory provision that commercial premises cannot be used for

residential purposes. Therefore, I reject the argument that the suit premises

cannot be used for residential purpose once they are found to be suitable for

the bonafide need of the landlord.

16. At the end, I would like to observe one aspect though that aspect does

not form part of the pleadings in the eviction petition or in the leave to

defend application with its replies and rejoinders, and which is that possibly

how can the ground floor where the tenanted premises is situated be used for

residential purposes because there is no kitchen or bathroom attached to the

same. In this regard, I would like to observe that so far as kitchen is

concerned, respondent no.1 already has a running kitchen in the second floor

and there is no need for making a kitchen on the ground floor. So far as the

bathroom is concerned, surely, the respondent no.1 will be entitled to take

necessary sanction to construct a bathroom within the covered area/hall of

the tenanted premises on the ground floor and merely because today there is

no bathroom cannot mean that subsequently the respondent no.1 cannot

construct a bathroom for use of the mother or any other person who would

use the room on the ground floor which is presently with the

petitioner/tenant.

At this stage, counsel for the respondent no.1 states that in fact

there is existing a WC on the ground floor of the premises, and which is duly

shown in the site plan filed alongwith the eviction petition, and hence for

this reason, in my opinion, the ground floor portion can be used for

residential purposes.

17. In view of the above, I do not find any merit in the petition and

the same is therefore dismissed, leaving the parties to bear their own costs.

JULY 31, 2014/ib                                VALMIKI J. MEHTA, J.