Moti Lal vs Raj Kumar
2018 Latest Caselaw 2177 Del

$~10
        IN THE HIGH COURT OF DELHI AT NEW DELHI
                                          Decided on:- 9th April, 2018
+       RC.REV. 302/2015
        MOTI LAL                                   ..... Petitioner

                          Through:    Mr. Neeraj Sharma, Advocate
                          versus
        RAJ KUMAR                                  ..... Respondent
                          Through:    Mr. Vikrant Arora, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
                    ORDER (ORAL)

1. The petitioner had instituted a case (E. No.508/2014) for eviction on 27.08.2012 against the respondent seeking order of eviction on the ground of bona fide need invoking Section 14 (1) (e) of the Delhi Rent Control Act, 1958 in respect of residential house at ground floor, bearing property No.5384/12, Gali No.6, New Chandrawal, Delhi-110007 (the tenanted premises).

2. Having regard to the ground taken, the procedure under Section 25-B of the Delhi Rent Control Act, 1958 was invoked and the additional rent controller (ARC) issued summons to the respondent under Section 25-B of the Delhi Rent Control Act, 1958. The respondent, admittedly a tenant in respect of the tenanted premises, filed an application seeking leave to contest. It appears that such contest was allowed and the case was put to trial. The petitioner led evidence by examining his son Tribhovan Singh (PW-1) he deposing

on the strength of power of attorney, this in addition to Bishan Datt (PW-2), who is brother of the petitioner. The respondent, on the other hand, examined himself (as RW-1). The ARC, by judgment dated 13.03.2015, however, dismissed the case for eviction on the ground the petitioner had failed to lead cogent evidence to prove the bonafide need for vacant possession of the tenanted premises. It is the said result which is under challenge by the revision petition at hand.

3. Having heard the learned counsel on both sides and having gone through the record, this court finds the approach of the ARC in the impugned judgment to be wholly unjust, unfair and improper. The reasons are set out hereinafter.

4. It is an undisputed case even on the pleadings that on the date the petition was filed for eviction of the respondent, the petitioner was aged 92 years old, his wife then being 86 years in age. The pleadings in the petition that the petitioner had suffered paralytic stroke which had rendered half right side of his body in a paralytic state rendering it impossible for him to walk without the help of the others, was disputed. But, during his own evidence (as RW-1), the respondent conceded this to be a fact; so much as that he would go to the extent of also admitting that he had called on the petitioner after such paralytic attack, six-seven years ago (the deposition having been recorded on 25.09.2014). The pleadings in the eviction petition that the octogenarian wife of the petitioner also suffers from major chronic arthritic condition were not specifically denied and, therefore, must be taken to have been admitted. Be that as it may, the evidence of

Tribhovan Singh (PW-1), son of the petitioner, to such effect has gone unimpeached.

5. The ARC was swayed by the argument of the respondent that no medical records about the ailments of the petitioner or his wife have been proved. Given such advanced age of the petitioner, and of his wife, it was unfair to search for formal medical records as the proof, particularly after the admission of the respondent in his deposition that the petitioner had suffered paralytic stroke in or about 2007-2008.

6. The respondent had also contested the case for eviction on the ground that the petitioner is not the landlord or owner of the tenanted premises. He further contested the case about the will of the petitioner to shift to the tenanted premises in the advanced age of his life on the ground that he (the petitioner) was comfortably located in the property at Jai Prakash Nagar within the area of Moujpur, Delhi, it being the suitable alternative accommodation.

7. The rent controller has rejected the contest on the first above said ground noting that the respondent had himself deposited the rent in the name of the petitioner under Section 27 of the Delhi Rent Control Act, 1958, thereby admitting the relationship of landlord and tenant. The said conclusion is correct and only needs to be affirmed. Such conclusion, in fact, leads to the rule of estoppel under Section 116 of the Indian Evidence Act being invoked against the respondent with regard to the case of the petitioner about he being the owner of the subject property. Thus, the conclusion to this effect reached in the

impugned judgment must be endorsed.

8. This court, however, finds the reasons set out to disbelieve the case of the petitioner for bona fide need to be erroneous. The house in the area of Moujpur Delhi is in the name of the wife of the petitioner. He has pleaded that the said house is located in an unplanned colony with no proper sewerage system, open drains carrying obnoxious foul smell of human excreta making life miserable; the colony having been converted over the period of time into a commercial zone; commercial vehicles having increased adding to the air and noise pollution; the basic medical facilities available in that area also not being suitable. In contrast, the petitioner refers to the house at New Chandrawal (the tenanted premises) to be more suitable since his younger brother and two of the sons of the said brother, both married, are also living in the vicinity, and such close relatives, it is submitted, would be of great assistance and help to the petitioner and his wife, if they were to shift here, medical institutions of repute including Hindu Rao Hospital, St. Stephens Hospital, Patel Chest Institute, T.B. Hospital, being in close vicinity. These are all facts which were affirmed on oath by his attorney/son (PW-1) whose testimony is corroborated by evidence of PW-2 Bishan Datt (his brother). There is no reason why these facts, and justification, should not have been accepted.

9. It is not for the court to decide that the house in Moujpur is better located. It may be that the petitioner may have been availing medical aid and assistance from government dispensary closer to the area of Moujpur. But, that does not mean that he is obliged to restrict

himself to such medical facilities only or that he cannot hope to get better medical facilities which are available in the neighbourhood of the tenanted premises.

10. One other contention of the respondent that influenced the decision of the ARC is that the property at Moujpur has larger accommodation as compared to the tenanted premises and that the latter presently does not have facilities in the nature of WC or bathroom. The counsel for the petitioner, however, explained that the needs of the petitioner in his old age are not for large accommodation. All that he needs is the comfort of the company of his near and dear ones in the evening of his life, there being no difficulty on account of immediate absence of WC or bathroom since such facilities are available in the abutting house of his brother. The court finds substance in this explanation.

11. In the above facts and circumstances, the view taken by the ARC in the impugned judgment cannot be endorsed. The petitioner has made out a case for eviction on the ground of bona fide need for which the eviction order should have been granted.

12. Thus, the revision petition is allowed. The impugned order of the ARC is set aside. An order of eviction in favour of the petitioner and against the respondent is hereby passed under Section 14 (1) (e) of the Delhi Rent Control Act, 1958 in respect of the tenanted premises, as specifically shown in colour red in the site plan (Ex.PW-1/2).

13. Having regard, however, to the statutory provision contained in section 14 (7) of the Delhi Rent Control Act, 1958 it is directed that

the eviction order shall become executable after elapse of six months.

14. The petition stands disposed of in above terms.

R.K.GAUBA, J.

APRIL 09, 2018 vk