Smt. Savitri Seth And Ors. vs Shri Parshottam Dass
2014 Latest Caselaw 4596 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    C.R.P No.736/1986

%                                                     18th September, 2014

SMT. SAVITRI SETH AND ORS.                          ......Petitioners
                   Through:              Mr. Girish Aggarwal, Advocate with
                                         Mr. Vaibhav Jain, Advocate.



                           VERSUS

SHRI PARSHOTTAM DASS                                       ...... Respondent

                 Through:                Mr. Yashvardhan, Advocate.

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This petition under Section 25-B(8) of the Delhi Rent Control

Act, 1958 (hereinafter referred to as 'the Act') is filed by the landlords

against the impugned judgment of the Additional Rent Controller dated

6.5.1986 by which the Additional Rent Controller while finding all the aspects

in favour of the petitioners i.e existence of relationship of landlord and tenant

between the parties, the petitioners being owners, the premises being let out for

residential purposes, the petitioners not having any other alternative suitable

accommodation, and that the petitioners required the premises bonafidely for

their residence and family members, yet, dismissed the eviction petition

filed under Section 14 (1) (e) of the Act on the sole ground that eviction

petition is only filed for a part of the tenanted premises inasmuch as one

room of the tenancy has been illegally/forcibly taken possession of by the

petitioners. Therefore, it is clear that though there is a finding on all aspects

in favour of the petitioners with respect to the ingredients of Section 14(1)(e)

of the Act, eviction petition was dismissed allegedly and only on account of

petitioners seeking partial eviction. This aspect of alleged partial eviction on

which the eviction petition was dismissed, has however now achieved

finality in terms of the judgment dated 25.10.2012 passed by Ms. Snigdha

Sarvaria, Civil Judge, Central V, Tis Hazari Courts, Delhi whereby the civil

suit for possession filed by the respondent/tenant with respect to one room

allegedly forcibly taken by the petitioners has been dismissed. Therefore,

once the suit is dismissed, and the judgment dated 25.10.2012 has

admittedly achieved finality, there does not remain any issue with respect to

the partial eviction.

2. Really therefore what has to be decided is the cross objections

which have been filed by the respondent/tenant and an application under

Order XLI Rule 27 read with Order VII Rule 7 & Order VI Rule 17 read

with Section 151 of the Code of Civil Procedure 1908 (CPC) which is

allegedly filed by the respondent/tenant for additional evidence with respect

to the subsequent events being CM No. 4097/98.

3. Let me first turn to the ingredients of Section 14(1)(e) of the

Act and then examine them as to whether any case is made out as per the

cross objections or that the judgment of the Additional Rent Controller on

these aspects should be sustained. In a petition for bonafide necessity under

Section 14(1)(e) of the Act, the following ingredients are required to be

established by the landlords:-

(i) Petitioners are the owners/landlords of the tenanted premises.

(ii) Premises are let out for residential purposes.

(iii) Petitioners/landlords require the premises bonafidely for use of

themselves and their family members, and

(iv) Petitioners have no other alternative suitable accommodation.

4. At this stage, it is required to be noted that the ingredient of

Section 14(1)(e) of the Act with respect to letting purpose being for residential

purpose, has now become immaterial in view of the judgment of the Supreme

Court in the case of Satyawati Sharma (dead) by LRs. Vs. Union of India

(UOI) and Anr. (2008) 5 SCC 287 which holds that even if premises are let out

for a commercial purpose, a bonafide necessity eviction petition under Section

14(1)(e) of the Act can be filed in Delhi. We have therefore to see existence of

only three other ingredients under Section 14(1)(e) of the Act.

5. The first ingredient with respect to the petitioners being the

owners/landlords of the premises has been held in favour of the petitioners

by the Additional Rent Controller because there was no dispute with respect

to this aspect and is noted in para 15 of the impugned judgment of the

Additional Rent Controller.

6. So far as the family members of the petitioners are concerned, I

may at this stage note that when the eviction petition was filed in the year

1979 i.e 35 years ago petitioner no.1 in the eviction petition Sh. Kanahya Lal

Seth was alive. He was the landlord and when he expired during the

pendency of the eviction petition, his legal heirs were brought on record as

petitioners. Learned Additional Rent Controller has therefore not considered

the need of the deceased petitioner Sh. Kanahya Lal Seth. I would however

like to note that Supreme Court in the case of Kamleshwar Prasad Vs.

Pradumanju Agarwal (dead) by LRs. AIR 1997 SC 2399 has held that the

subsequent event of the death of the landlord during the pendency of the

petition, and who wanted to start a business from the tenanted premises, is

not sufficient to dislodge the bonafide need established by him earlier.

Further, the Supreme Court in the judgment in the case of Ramesh Kumar

Vs. Kesho Ram AIR 1992 SC 700 has observed that the normal rule is that

the issue of bonafide need of the landlord has to be considered as on the date

of filing of the eviction petition and only cautious cognizance should be

taken of subsequent events. Subsequent events must be such which

completely and totally wipe away the cause of action and therefore only

such events can become subsequent events vide Gaya Prasad Vs. Sh.

Pradeep Srivastava AIR 2001 SC 803 wherein the Supreme Court held that

where the need is for the son to carry on business from the tenanted premises

from which eviction is sought, the petition cannot be dismissed if the son

takes up some job as he is not expected to remain idle for decades during

which the litigation goes on.

6(i) The aforesaid observations of the Supreme Court are very

relevant because litigation in this country sometimes takes a long period of

time, and the present case is one such example and which is now pending for

35 years, therefore surely it is not conceivable that in 35 years there would

be no deaths or changes in the family members because of marriages of

daughters and so on. Therefore, the length of the case has been held by the

Supreme Court not to be held to be of disadvantage to the landlords.

(ii) Consequently, in view of this position of law I refuse to

entertain and consider the CM No. 4097/1998 filed under Order XLI Rule

27 read with Order VII Rule 7 and Order VI Rule 17 CPC which I

accordingly dismiss and in which the case of the respondent/tenant is that

the petitioners have in fact shifted to some other accommodation. Surely

landlords cannot keep on causing misery to themselves in an insufficient

accommodation for decades of pendency of litigation, and thus in the facts

of the present case where the eviction petition had been dismissed only on

the ground of alleged partial eviction, and otherwise the landlords would

have got the possession decades back, the eviction petition must be decided

as per the facts existing in 1979 when the petition was filed. In my opinion,

even if petitioners have shifted to some other accommodation, and which of

course is not established till yet, that cannot mean that the need is totally

wiped away and, the ratios of the judgment of the Supreme Court stated

above will squarely apply that this Court will only take cautious cognizance

of subsequent events by refusing to allow this case of the year 1979 once

again to go to trial after 35 years of pendency. If I allow the application

under Order XLI Rule 27 read with Order VII Rule 7 and Order VI Rule

17, then, it would be a grave travesty of justice because a bonafide necessity

eviction petition can otherwise never be decided.

7. In view of the judgments of the Supreme Court referred to by

this Court above, the judgments which are cited on behalf of the respondent

cannot apply in the facts of the present case. It is trite that subsequent events

may be taken note of, however, it is not routinely that subsequent events are

automatically and simply taken note of but whether they are or/are not to be

taken note of depends upon facts of each case. The judgments which have

been cited on behalf of the respondent/tenant with respect to the subsequent

events being considered are the judgments in the cases of Pasupuleti

Venkateswarlu Vs. The Motor & General Traders AIR 1975 SC 1409;

Gulabbai Vs. Nalin Narsi Vohra & Ors (1991) 3 SCC 483 and Sheshambal

(Dead) Through LRs. Vs. Chelur Corporation Chelur Building and Others

(2010) 3 SCC 470 and though there is no dispute to the proposition of law

that subsequent events can be considered as stated therein, however, it is

only certain subsequent events that can be considered and that too depending

on facts of each case, but the facts of the present case are such that they

squarely fall within the ratio of the judgments of the Supreme Court in the

cases of Kamleshwar Prasad, Ramesh Kumar and Gaya Prasad (supra)

and hence the judgments relied upon by the respondents cannot be applied in

the facts of the present case.

8(i) The family members of the petitioners originally comprised of

the late petitioner Sh. Kanahya Lal Seth , his wife/widow, who was the

petitioner no.1 in this Court when this petition was filed, but who has also

unfortunately expired during the pendency of the petition. Thus observations

made qua the death of the original landlord Sh. Kanahya Lal will apply

equally with respect to the issue of death of Smt. Savitri Seth.

(ii) The other family members were Sh. Praveen Seth the son and

Smt. Madhu Mehra, the daughter. It may also be noted that besides the need

of Sh. Praveen Seth who was the married son and whose need was to be

considered in the eviction petition, the touching part is that today's factual

position is that Mr. Praveen Seth who had two sons, these two sons have in

fact got married and they even have their own children. Nothing thus can be

more disturbing about the continued tenancy and the long time taken in

litigation, then the facts of the present case.

(iii) The daughter Smt. Madhu Mehra has also got married and is

having children and she would be required to have a room as a guest room.

(iv) In a way therefore if we had to very strictly look at the issue of

bonafide necessity as of today, and not on the date of filing of the petition,

the issue will be basically the requirement for Mr. Praveen Seth his wife and

his married sons who are said to be staying with him (though which is

disputed by the respondent-tenant).

(v) In the eviction petition the need for the residence of the two

brothers of late Kanahya Lal namely Sh. Brij Nath Seth and Sh. Bhagwan

Seth was projected but this Court is informed that both Sh. Brij Nath Seth

and Sh. Bhagwan Seth, have already expired during the pendency of the

petition.

(vi) Therefore, in sum and substance, really the need will have to be

the need of Sh. Praveen Seth and his wife and the need of his married sons

with their children and the need for a guest room and so on.

(vii) The present case is therefore not a case where the complete need is

wiped out, and therefore, notice of subsequent events need not be taken as

held in the ratios of the above cited cases of the Supreme Court especially

Gaya Prasad's (supra) case.

9. The facts which have been proved on record in the present case

are that the petitioners had one room on the ground floor and one room on

the first floor of the premises. There was a room in the basement in which

there was no light and air and consequently the room in basement has been

rightly held not being capable of being used as a bedroom by the

Additional Rent Controller. Once there are only two bedrooms, those two

bedrooms are clearly insufficient for the need of Sh. Praveen Seth and his

family though in the facts of the present case it is averred by the respondent

that a disputed fact exists as to whether the sons of Sh. Praveen Seth are or

are not living with him. Considering that delay in disposal caused by the

respondent/tenant has resulted in such a state of affairs, and also applying

the ratios of the judgment of the Supreme Court above and especially in the

case of Kamleshwar Prasad (supra), in my opinion, this Court cannot keep

on examining and re-examining the change in the family members of the

petitioner and in the peculiar facts of this case I would consider the need of

the petitioners only as on the date of the filing of the petition. Once I

consider the need of the petitioners only on the date of filing of the petition,

it becomes clear that the family members of the petitioner consist of Sh.

Kanahya Lal Seth , his wife namely Smt. Savitri Seth, his married son Sh.

Praveen Seth, his two unmarried brothers who are living with Sh. Kanahya

Lal as part of his family Sh. Brij Nath Seth and Sh. Bhagwan Seth (ration

card proved as Ex.AW1/6 & AW1/7 for these brothers to be family members

of the petitioners) and an unmarried daughter Smt. Madhu Mehra. At best

the case of the respondent is that in addition to the two bedrooms, the

petitioners have one room in the basement as also another store room, but

even taking them into account, in my opinion such accommodation being

two bedrooms, one room in the basement and another store room are clearly

insufficient for the family members of the petitioners.

10. At the conclusion of this judgment, I would like at the cost of

repetition to state that it is in view of the peculiar facts of the present case

which have been found in the present case, that the Supreme Court had in

similar case laid down the ratios in the cases of Kamleshwar Prasad,

Ramesh Kumar and Gaya Prasad (supra) that the issue of bonafide

necessity eviction petition should ordinarily be considered only on the date

of filing of the eviction petition, and therefore I feel in the peculiar facts of

the present case, such ratios categorically apply. I refuse to consider

subsequent events because it would put premium on the actions of the tenant

in unfairly contesting bonafide necessity eviction petition and also of

unfortunately the long time which litigation takes in this country.

11. In view of the above, the present petition is allowed. Eviction

is ordered of the respondent from the tenanted premises comprising of one

room and one kitchen on the first floor of the property bearing Municipal

no.2409, Chhipiwara Kalan, Jama Masjid, Delhi-110006 and more

specifically shown in red colour in the site plan attached with the eviction

petition. Parties are left to bear their own costs.

VALMIKI J. MEHTA, J SEPTEMBER 18, 2014 Ne