Smt.Neerja Sharma vs Sh.Sameer Jain
2016 Latest Caselaw 7415 Del

$~A-4
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                     Date of decision: December 15, 2016

+     RC REV.150/2016, CM Nos.8072/2016 & 43550/2016

      SMT.NEERJA SHARMA                      ...PETITIONER
                    Through Ms.Shalini Kapoor, Adv.
               Versus
      SH.SAMEER JAIN                         ...RESPONDENT
                    Through Mr.Sandeep P.Aggarwal, Adv.
      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. This Revision Petition is filed under section 25B(8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the DRC Act) seeking to impugn the order of eviction dated 24.9.2015 passed by the Additional Rent Controller (hereinafter referred to as the ARC) under section 14(1)(e) of the DRC Act. The respondent/landlord filed the present Eviction Petition regarding the premises comprising of two rooms, one kitchen, one bath, separate latrine on the first floor of the building Ward No.XI, 7/8 Ansari Road, Darya Ganj, New Delhi-110002. The premises were let out to late Shri Lalit Mohan Sharma by way of a rent note dated 31.5.1986 on the agreed rent of Rs.165/- per month. The said tenant Shri Lalit Mohan Sharma died in June 1990. The premises are retained by the petitioner and her adopted son Shri Ashish Mohan Sharma.

2. It is the contention of the respondent/landlord that the said premises was acquired and built jointly by Late Smt.Sabazmala Jain and Late

RC.REV.150/2016 Page 1 Smt.Jainmati out of their own funds having undivided half share in the property. Smt. Jainmati bequeathed her undivided one half share in favour of Shri B.B.Jain vide Will dated 11.7.1955. The said Smt.Jainmati died on 8.1.1965 and by virtue of her Will her half undivided share fell into the share of Shri B.B.Jain. A partition took place on 28.10.1971 between Smt.Sabazmala Jain and Shri B.B.Jain and property was divided half and half. It was Smt.Sabazmala Jain who being the landlady had rented out the said portion to Shri Lalit Mohan Sharma. On 16.7.1987 Smt.Sabazmala Jain died leaving behind her Will dated 26.11.1982 whereby she bequeathed her half share to their grandson i.e. respondent herein. The respondent has obtained a letter of administration in Probate Case 32/1989 vide order dated 19.2.1991. Hence, the respondent claims to be the owner of 50% of the property.

3. It is further averred in the petition that the respondent has two grown up daughters, one of whom is in 12th class and the second one is in 10th class. It was urged that the parents of the respondent are suffering from ill health. The father of the respondent was suffering from prostate cancer. He subsequently after filing of the petition passed away and the mother of the respondent has succeeded to half of the property. Respondent is also stated to have been diagnosed with colin cancer and has undergone a major surgery. It was stated that the daughters of the respondent are growing up and need two separate rooms. It was averred that the building is built in old fashioned manner. There is a big open courtyard in the front and the rooms, kitchen and toilets are provided on the three sides of the courtyard. A narrow staircase in the middle of the courtyard goes to the second floor. The toilets are away from the rooms which create great inconvenience. Hence, one room

RC.REV.150/2016 Page 2 has been converted by the respondent into a toilet for being used commonly by the respondent, his wife and two grown up daughters. Given the nature of construction, it is not possible to move the daughters to the rooms on the second floor. The parent/mother of the respondent is staying on the first floor in her portion of the property and it is necessary for the respondent to reside close-by i.e. on the first floor. It was urged that the respondent has only two rooms, one kitchen and W.C. on the first floor. There is no separate kitchen and the respondent is sharing the kitchen with his parent and also the drawing and dining facilities.

4. The petitioner was granted leave to defend by the ARC. The parties have led their evidence. The petitioner examined herself as RW-1. The respondent examined himself as PW-1. He also examined PW-2 Shri Veerpal Singh, Zonal Inspector, Central Zone, SDMC. The ARC by the impugned order culled out the following points which fell for determination:-

(i) "Whether the applicant is the owner of the premises?

(ii) Whether there exists relationship of landlord and tenant between the parties?

(iii) Whether the premises are required bona fide by the applicant for himself?

(iv) Whether the applicant has no other reasonably suitable accommodation?"

5. On the issue of ownership, the impugned order notes that the respondent became the owner of the tenanted premises by virtue of will dated 26.11.1982 executed in his favour by his grandmother late Smt.Sabazmala Jain who was the joint owner with his father of the entire property. The respondent has been granted the letter of administration under

RC.REV.150/2016 Page 3 the Indian Succession Act, 1925 in Probate Case No.32/1989 vide order dated 19.2.1991 (Ex.PW1/3). Noting the above documents and also the fact that the petitioner led no evidence in this regard the impugned order held that even a joint owner is entitled to file a case for eviction and concluded that the relationship of landlord tenant exists between the parties.

6. On the other two issues, namely, as to whether the premises are required bona fide by the respondent and whether there is any other reasonable suitable accommodation available to the respondent, the impugned order noted the testimony of PW-1 the respondent that the respondent is residing on the first floor of the building and needs the accommodation occupied by the petitioner for the requirements of his two studying daughters for their independent rooms. The order further notes the evidence of the respondent that the ground floor belongs to his deceased father/now his mother and the same is used for commercial activities and that the mother requires accommodation for her daughter and for her sisters and other guests who frequently visit her. It also noted the deposition of RW1 that the respondent has six rooms on the second floor. Three of the rooms are being used by his wife for professional activities and the balance three are used by the petitioner as store room/guest room. It also noted the averment of the respondent that on the ground floor the premises are commercial. The impugned order notes the cross-examination of the respondent and concluded based on the testimony on record that the respondent bonafidely requires the tenanted premises for his two college going daughters who require independent rooms for their privacy, safety and security. Noting that the landlord is the best judge of his residential requirements the ARC concluded that the requirement of the respondent is

RC.REV.150/2016 Page 4 bona fide. Accordingly, it allowed the eviction petition filed by the respondent and passed an eviction order against the petitioner.

7. I have heard learned counsel for the parties. Learned counsel for the petitioner has vehemently argued relying upon the evidence and cross- examination of PW-1 that the respondent has two rooms on the first floor and six rooms on the second floor and has sufficient accommodation available for his full family. Hence, it was urged that the eviction petition is misplaced.

8. I may first see the scope of the present petition. The Supreme Court in Shiv Sarup Gupta vs. Dr.Mahesh Chand Gupta, (1999) 6 SCC 222 described the revisional powers of this court as follows:-

"11....... The phraseology of the provision as reproduced hereinbefore provides an interesting reading placed in juxtaposition with the phraseology employed by the Legislature in drafting Section 115 of the CPC. Under the latter provision the exercise of revisional jurisdiction of the High Court is circumscribed by the subordinate court having committed one of the three errors, namely (i) having exercised jurisdiction not vested in it by law, or (ii) having failed to exercise a jurisdiction so vested, or (iii) having exercised its jurisdiction with illegality or material irregularity. Under the proviso to Sub-section (8) of Section 25B, the expression governing the exercise of revisional jurisdiction by the High Court is 'for the purpose of satisfying if an order made by the Controller is according to law'. The revisional jurisdiction exercisable by the High Court under Section 25B(8) is not so limited as is under Section 115 C.P.C. nor so wide as that of an Appellate Court. The High Court cannot enter into appreciation or re- appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a court of facts. 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 re-appraisal of

RC.REV.150/2016 Page 5 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 could have reached that conclusion on the material available..."

Hence, this court is not to indulge in appreciation/re-appreciation of facts to see whether a different conclusion is possible. This court is to test the order to see whether the conclusions are not unreasonable.

9. Section 14(1)(e) of the DRC Act reads as follows:-

"14.Protection of tenant against eviction.- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenant:

Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-

xxxxx

(e) that the premises let for residential purpose are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and the landlord or such person has no other reasonably suitable residential accommodation."

10. The essential ingredients which a landlord/respondent is required to show for the purpose of getting an eviction order for bona fide needs are (i) the respondent is the owner/landlord of the suit premises (ii) the suit

RC.REV.150/2016 Page 6 premises are required bona fide by the landlord for himself and any of his family members dependant upon him. (iii) the landlord or such other family members has no other reasonable suitable accommodation.

11. The sum and substance of the argument of the petitioner is that respondent has sufficient accommodation on the second floor to accommodate his daughters and other requirements pertaining to drawing room, dining room, kitchen etc. The respondent/PW-1 in his affidavit by way of evidence has explained his requirement of the tenanted premises in his evidence as follows:-

"22.I say that I require the tenanted premises i.e. the two rooms with a bathroom, latrine and ,kitchen on the first floor of the premises for my bonafide need, inasmuch as, that I am residing on the first floor of the building in my half share and I want and wish that my two daughters, who at the time of filing of the present petition were in Class 10th and 12th respectively (now aged 18 and 20 years respectively) can have independent rooms to themselves on the same floor.

23. I say that thus, the plea of the respondent that I have sufficient accommodation i.e. six rooms on the second floor, is of no relevance, as I require my daughters to live on the same floor, as that of mine.

......

25.I say that my father had died because of prostate cancer and even I was diagnosed and later operated for Colon Cancer. Thus, it is more of a reason that I prefer my daughters to be on the same floor, as that of mine. The medical records of the petitioner are on record and are collectively exhibited as Exhibit PW-1/17 (Colly.)"

12. Regarding the claim of the petitioner that sufficient accommodation is available with the respondents on the second floor, the respondent has denied

RC.REV.150/2016 Page 7 the said contention and has explained how the rooms on the second floor are being utilized.

"26. I further say that otherwise also, part of the second floor of my share of the property, consisting of three rooms on the north-east side of the building i.e. above where the petitioner is residing were being used by petitioner's wife for carrying on her part time professional/business activity. Thereafter, the said portion was rented out to M/s.Telic Solutions on a monthly rent of Rs.8,000/- w.e.f. 1.4.2010. The said firm is a sole proprietorship of petitioner's wife. The rent of the said premises was increased to Rs.10,000/- per month from 1.4.2011. The rent receipts are annexed hereto and are exhibited as Exhibit PW- 1/18 (colly)

27. I say that the other part consisting of three rooms on the second floor on the south-east side of the building i.e. above the tenanted portion is being used by the petitioner for the following:-

a) One room is used as a store room.

b) Two rooms are used as guest rooms. The petitioner and his wife both, have a large family and as such, there are lot of visiting guests coming from out of Delhi. The petitioner's wife is from Agra and apart from her parents, has one married brother and four married sisters. Similarly, the petitioner himself has large number of visitors visiting and staying with them from time to time. At times, the guest rooms are also used by the petitioner for accommodating his friends and business associates."

13. In the extensive cross-examination done of PW-1, the above explanation has not been in any manner dented. Based on this evidence and the other evidence led by the petitioner the impugned order has recorded a finding of fact that the respondent bonafidely requires the tenanted premises.

RC.REV.150/2016 Page 8 His two grown up daughters need independent rooms as he does not have any other available accommodation on the first floor itself.

14. In Prativa Devi (Smt.) v. T.V. Krishnan, (1996) 5 SCC 353, it was held that the landlord is the best Judge of his requirement and Courts have no concern to dictate the landlord as to how and in what manner he should live. The bona fide personal need is a question of fact and should not be normally interfered with.

15. In G.C. Kapoor Vs. Nand Kumar Bhasin, AIR 2002 SC 200, the Supreme Court noted as follows:

"It is settled position of law that bonafide requirement means that requirement must be honest and not tainted with any oblique motive and is not a mere desire or wish. In Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde and Anr.: [1999] 2 SCR 912, this Court while considering the bonafide need of the landlord was of the view that when a landlord says that he needs the building for his own occupation, he has to prove it but there is no warrant for 'presuming that his need is not bonafide'. It was also held that while deciding this question. Court would look into the broad aspects and if the Courts feels any doubt about bonafide requirement, it is for the landlord to clear such doubt."

16. The Supreme Court in Sarla Ahuja vs. United India Insurance Company Ltd., (1998) 8 SCC 119 held as follows :-

"14. The crux of the ground envisaged in Clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the

RC.REV.150/2016 Page 9 Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."

17. Similarly, the Supreme Court in Shiv Sarup Gupta vs. Dr.Mahesh Chand Gupta, (1999) 6 SCC 222 noted the legal position as follows:-

"18. In M. M. Quasim v. Manohar Lal Sharma, AIR 1981 SC 1113, this Court has held (vide para 18) that the landlord does not have an unfettered right to choose the premises but merely showing that the landlord has some other vacant premises in his possession may not be sufficient to negative the landlord's claim if the vacant premises were not suitable for the purpose for which he required the premises. This Court cautioned that the Court must understand and appreciate the relationship between the legal rules and necessities of life.

19. In Ram Pass v. Ishwar Chander and Ors., AIR1988SC1422 this Court has held that:

the need of the landlord should be genuine and honest, conceived in good faith; and that, further, the court must also consider it reasonable to gratify that need. Landlord's desire for possession, however honest it might otherwise be, has inevitably a subjective element in it and that, that desire to become a "requirement" in law must have the objective element of a "need". It must also be such that the court considers it reasonable and, therefore, eligible to be gratified. In doing so,

RC.REV.150/2016 Page 10 the court must take all relevant circumstances into consideration so that the protection afforded by law to the tenant is not rendered merely illusory or whittled down.

20. In Sarla Ahuja v. United India Insurance Co. Ltd. AIR1999 SC 100 this Court has held that the Rent Controller should not proceed on the assumption that the landlord's requirement is not bonafide. When the landlord shows a prima facie case a presumption that the requirement of the landlord is bonafide is available to be drawn. It is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without giving possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.

21. In Prativa Devi (Smt) v. T.V. Krishnan, (1996)5 SCC 353 , this Court has held that in considering the availability of alternative accommodation, not availability merely but also whether the landlord has the legal right to such accommodation has to be considered."

18. In my opinion, the findings of facts recorded by the ARC in the impugned order are plausible and reasonable findings. The respondent has shortage of accommodation on the first floor and seeks to stay on the said floor alongwith his full family. The respondent has only two rooms, one kitchen and WC on the said floor. The kitchen has been converted into a bed room and the respondent is using the same kitchen as that of his parents. His mother is also residing on the said floor in the portion that belongs to her. The desire to live on the same floor is certainly bona fide.

RC.REV.150/2016 Page 11 This is also so given the nature of the construction of the property. The property is built in an old fashioned manner. There is a big courtyard and the toilets are away from the rooms. There is a narrow stair case in the middle of the court yard going to the second floor. The first floor where the respondent and petitioner reside has a common entry and exit through the said open courtyard. It is also a matter of fact that the respondent himself has suffered from colon cancer and hence also, the need and the desire for the family to stay on the same floor. It is not for the tenant to dictate terms to the landlord as to how he can adjust himself. Even otherwise, the respondent has explained in detail how the accommodation on the second floor is being utilized. His wife is running her own business from half of the second floor which she is entitled to do. The wife has been carrying on the business for a long time cannot be asked to shut down her business for additional accommodation requirement of the respondent. Other rooms are being used as guest rooms. Hence even otherwise, given the nature of construction, it would not be suitable for the family to live in two different floors. There are no reasons to interfere in the well reasoned order of the ARC. The present petition is accordingly dismissed.

                                                     (JAYANT NATH)
                                                         JUDGE
DECEMBER 15, 2016/n
Corrected and signed on 6.6.2017




RC.REV.150/2016                                                           Page 12