Sh. Mukund Krishna Barman vs Sh. Surender Kumar Malhotra ...
2014 Latest Caselaw 6176 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+           RC.REV.No.266/2013 & C.M.No.11369/2013 (Stay)

%                                                  26th November, 2014

SH. MUKUND KRISHNA BARMAN                     ......Petitioner
                 Through: Mr.Vibhor Goela, Advocate.

                         VERSUS

SH. SURENDER KUMAR MALHOTRA (DECEASED) THROUGH HIS
LEGAL HEIRS                             ...... Respondents

Through: Mr.Abhishek Kumar, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? Yes.

VALMIKI J. MEHTA, J (ORAL)

1. This rent control revision petition filed 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 (ARC) dated 26.4.2013 by

which the ARC has dismissed the leave to defend application and has

decreed the bonafide necessity eviction petition filed under Section 14(1)(e)

of the Act with respect to a portion of the ground floor of house no.E-5/33,

Krishna Nagar, Delhi-51 as shown in red colour in the site plan filed with

the eviction petition.

2. I may note that the eviction petition was originally filed by the

erstwhile respondent/landlord Sh.Surender Kumar Malhotra, who was 83

years of age and who needed the ground floor portion because at his advance

age and suffering from various ailments, it was not possible for him to climb

to the first floor, and therefore the need was projected for the original

landlord Sh.Surender Kumar Malhtora with respect to the suit/tenanted

premises which is situated on the ground floor.

3. In the eviction petition, besides the projected need of the original

landlord, the need was also projected for the sons and daughter who were to

visit the erstwhile landlord Sh.Surender Kumar Malhotra. Since the original

respondent/landlord Sh.Surender Kumar Malhotra has now expired,

therefore, the eviction petition so far as his need is concerned would no

longer survive, however, the issue and the question is that whether any other

need has been projected by the erstwhile respondent/landlord for the

requirement of any members of his family, and for whose needs therefore

the eviction petition will survive.

4. At this stage, I would like to refer to the judgment of the Supreme

Court in the case of Gaya Prasad Vs. Sh. Pradeep Srivastava (2001) 2 SCC

604 wherein the Supreme Court after reviewing its various earlier judgments

on the requirement to consider subsequent events in a bonafide necessity

eviction petition has held that the courts must only take 'cautious

cognizance' of subsequent events and unless and until subsequent events

totally extinguish and demolish the bonafide necessity, the bonafide

necessity eviction petition will survive. The relevant paragraphs of the

judgment of the Supreme Court in the case of Gaya Prasad (supra) are paras

13, 15 and 17, and which read as under:-

"13. In our opinion, the subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events. A three-Judge Bench of this Court in Pasupuleti Venkateswarlu v. Motor and General Traders : (1975) 1 SCC 770 which pointed to the need for remoulding the reliefs on the strength of subsequent events affecting the cause of action in the field of rent control litigation, forewarned that cognizance of such subsequent events should be taken very cautiously. Ths is what learned Judges of the Bench said then: (SCC pp. 772-73, para 4) "We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed."

xxxxx

15. The judicial tardiness, for which unfortunately our system has acquired notoriety, causes the lis to creep through the line for long long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many many events are bound to take place which might happen in relation to the parties as well as the subject- matter of the lis. If the cause of action is to be submerged in such

subsequent events on account of the malady of the system it shatters the confidence of the litigants, despite the impairment already caused.

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17. Considering all the aforesaid decisions, we are of the definite view that the subsequent events pleaded and highlighted by the appellant are too insufficient to overshadow the bona fide need concurrently found by the fact-finding courts." (underlining added)

5. Applying the ratio of the judgment of the Supreme Court in the case

of Gaya Prasad (supra), let us examine the facts of the present case whether

the eviction petition will survive even on the death of the original landlord

Sh.Surender Kumar Malhotra. Before turning to the relevant averments

made in this regard in the eviction petition, it has to be stated that in the

eviction petition the erstwhile landlord has stated that he had been requesting

the petitioner/tenant for a long time to vacate the suit/tenanted premises on

account of the illness of his wife, and the wife died in the meanwhile but still

the petitioner/tenant did not vacate the suit/tenanted premises and ultimately

in the year 2012, the subject eviction petition had to be filed. Unfortunately,

now during the pendency of the present proceedings, even the original

respondent/landlord Sh.Surender Kumar Malhotra has died, and with which

aspect of delay the Supreme Court in Gaya Prasad's case (supra) has

expressed its angst.

6. If we read the relevant para 18(a) of the eviction petition, it is made

clear in the same that the bonafide need which was projected therein was not

only of the original landlord/respondent but also was with respect to his son

Sh.Vinod Malhotra, who is suffering from heart ailment and therefore he has

difficulty to climb to the first floor potion where he is residing with his

family and his father (the original respondent/landlord). The relevant portion

of paragraph 18(a) of the eviction petition reads as under:-

"Even the petitioner's son SH.VINOD MALHOTRA, who is aged about 53 years of age wants to live and has been advised to live on ground floor alongwith his family members with the petitioner as he has a cardiac problem and has been a heart patient. He has undergone Angiography in the year, 2009 in ALL INDIA INSTITUTE OF MEDICAL SCIENCES. SH. VINOD MALHOTRA has been having his pathological and diagnosis centre in the front portion on the ground floor and at the back of three tenanted shops, which is shown green in the site plan filed herewith. It is also becoming very difficult for him to go up and down from the first floor."

7 In the leave to defend application, the aforesaid portion of paragraph

18(a) of the eviction petition was not denied by the petitioner/tenant, and

therefore, there is no dispute that the son of the erstwhile

landlord/respondent Sh.Vinod Malhotra is having a heart problem, and

therefore the requirement of the ground floor was rightly projected by the

erstwhile respondent/landlord besides for himself also for his son Sh.Vinod

Malhotra. Therefore, even if the erstwhile respondent/landlord has expired,

that event will not completely eclipse the bonafide need of the erstwhile

respondent/landlord in view of the observations of the Supreme Court in

para 13 in Gaya Prasad's case (supra).

8. It is therefore quite clear that the petitioner/tenant is contumaciously

insisting on continuing to stay in the suit/tenanted premises, whereas there

was a genuine need firstly of the wife of the original landlord/respondent

who died, and thereafter even the original landlord/respondent kept on

asking the petitioner/tenant to vacate the suit/tenanted premises and who has

died, but, the petitioner/tenant still does not want to vacate the suit/tenanted

premises.

9. I may note that at the conclusion of the hearing, counsel for the

respondent agreed that some reasonable time can be taken by the petitioner

to vacate the suit/tenanted premises if the petitioner is not pressing the

petition, but, counsel for the petitioner on instructions from the petitioner

states that the case be decided on merits and a judgment be passed on merits.

10. In view of the above, this petition is a gross abuse of the process of

the law and there exist no merits for seeking to challenge the impugned

order of the ARC dated 26.4.2013. The present petition is therefore

dismissed with costs of Rs.30,000/-. Costs shall be paid by the petitioner to

the respondent within a period of four weeks from today. While dismissing

the petition, the interim order dated 08.5.2014 for payment of user charges is

confirmed, and in case the petitioner fails to comply with the same, the

respondent can execute this order to recover the user charges and the costs.

VALMIKI J. MEHTA, J NOVEMBER 26, 2014 KA