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Delhi High CourtIndian Cases

Prahlad Singh Rekhi vs Smt. Bhawani Devi And Anr. on 29 July 2004

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Delhi High Court
Prahlad Singh Rekhi vs Smt. Bhawani Devi And Anr. on 29 July, 2004
Equivalent citations: 113(2004)DLT137, 2004(76)DRJ131
Author: R.S. Sodhi
Bench: R.S. Sodhi
JUDGMENT

R.S. Sodhi, J.

1. RC-Rev. 590 of 1996 is directed against the judgment dated 18.3.1996 passed by the learned Rent Controller rejecting eviction petition No. E.63/89 under Section 14B, 14(1)(e) of the Delhi Rent Control Act (for short ‘the Act’) on the ground that the petitioner has failed to prove his bona fide in respect of the demised premises.

2. Brief facts of the case, as have been noted by the learned Rent controller, are that :

“the respondents are tenant in respect of one room, common latrine-cum-bath forming part of premises No. A-389, defense Colony, New Delhi. Premises were let out of one Shri Prem Ballabh in the year 1961. It has been pleaded that the petitioner is the owner of the demised property which was let out for residential purposes. The petitioner retired from the armed forces as Naib-Subedar. He has been living on the first floor with his son Devender Pal Singh, to whom the accommodation at the first floor belongs. The petitioner wants to live in his own house on the ground floor with his wife as per orders dated 28.5.1976 passed in Suit No.75/76 by the court of Shri B.B. Chaudhary, then Sub Judge, First Class, Delhi. The petitioner is a chronic patient and has been suffering from other ailments including stone in kidney, enlargement of prostate gland and heart diseases. As per medical advice, he is not supposed to climb the stairs. Otherwise also at the age of 71 years, it is difficult for him to live on the first floor. The petitioner has no other accommodation except the ground floor and bona fide requires the same or his residence and for the residence of his family members. His family consists of himself, his wife, two married sons, two married daughters and grand children. It is claimed that an eviction order may be passed in favor of the petitioner and against the respondents.
The respondents were summoned under Schedule-IIIrd as contemplated by the provisions of Section 25-B of the Delhi Rent Control Act 1958 (in short the Act). The application under Section 25-B(4) of the Act was moved by the respondents and leave to contest the eviction petition was granted vide order dated 20.2.1991.
The respondents resist the eviction petition, inter alia, on the grounds that the premises were out to Shri Prem Ballabh, husband of respondent No.1, and father of respondent No.2, for residential-cum-commercial purposes. Shri Prem Ballabh died on 18.1.1988 leaving behind Smt. Bhawani Devi, Shri Harish Chander, Ms. Mohini, Ms. Deepa and Ms. Bachhi as his legal heirs. All of them inherited the tenancy and became tenants-in-common. The eviction petition is not maintainable, since it has been filed only against the widow of the deceased tenant and his son. In another eviction petition bearing No. E-471/82, the petitioner imp leaded all the legal heirs of the deceased tenant, thereby admitting that tenancy rights have been inherited by other legal representatives of the deceased tenants than those imp leaded in the petition. The demised premises is a shop, where the tenant was carrying on business in the front portion and using the back portion for his own residence. After his death, Harish Chander has been carrying on the business of Pan, Cigarette and vegetables etc. at the demised property. It has been denied that there is common latrine and bath room which forms part of the tenant premises. It is pleaded that there are five shops on the ground floor of the premises in dispute and there is one common latrine in the service lane of the property which is used by all the tenants of the five shops and there is no bath room on the ground floor. It has been denied that the premises was let out for residential purposes only. It has also been denied that the petitioner is the owner of the property. It has also been denied that the petitioner retired from the armed forces as Naib-Subedar. The respondents deny that the petitioner requires the premises bonafide for his residence for himself as well as for the members of his family. It is pleaded that the petitioner has more than sufficient accommodation in his possession. The five shops on the ground floor, out of which one is in occupation of the respondents. Besides the shops, there are three rooms, kitchen, bath room on the ground floor which are in occupation of a tenant and are used for residential purposes. The entire first floor consisting of six rooms, kitchen and bath room etc. is in occupation of the petitioner. The second floor consisting of four rooms, kitchen, bath room is also in occupation of the petitioner. Thus, he has sufficient accommodation in his possession. It is admitted that there are two sons and two daughters of the petitioner. His daughters are married and living with their in-laws. His son Devender Pal Singh along with his wife and daughter is living at the first floor of the property. He is a doctor by profession. He has a clinic on the ground floor of the aforesaid house, which he started in the year 1984-85. The other son of the petitioner is an engineer and is settled at Bombay permanently with his wife and son. It is pleaded that even otherwise the premises in occupation of the respondent is not habitable. It is a shop of 16×10 ft, without the amenity of kitchen, toilet and bathroom. A person of the status of the petitioner cannot live in that room. It has been denied that the petitioner is a chronic patient and has been suffering from kidney stone, enlargement of prostate gland and heart disease. It has been denied that the petitioner has been advised not to climb stairs and live at the ground floor. The petitioner retired about 14-15 years back and in case he was suffering from the alleged ailments earlier, he should have occupied the room in which he has allowed his son Devender Pal Singh to run a clinic in the year 1984-85. It is claimed that petition under reference has not been filed on the ground of bona fide necessity.”
3. The learned Rent Controller has, while dealing with the provisions of Section 14B of the Act, held that the petitioner was released or retired from the armed forces and that the premises was let out by him and also that the petition for eviction had been moved in time. But as regards the bona fide requirements, the learned Rent Controller was of the view that the bona fides are not made out. It was contended before me that the findings arrived at were not correct inasmuch the Rent Controller has taken a very hypotechnical view of the matter and the premises are required for residence of the petitioner since he is required to vacate the accommodation with him which has now fallen to the share of his son.

4. In order to prove his bona fide requirement, the petitioner examined himself as witness and deposed that he is residing on the first floor along with his son, Devender Pal Singh, as a guest and wants to live independently on the ground floor. He has stated that he has been sick for the last ten years and has been suffering from hypertension, kidney trouble, heart problem and old age and that doctors have advised him not to climb stairs and to stay on the ground floor. In cross-examination he admitted that except for the rooms in occupation of the petitioner, the other rooms on the ground floor are being used for commercial purposes by other tenants. He has also admitted that the room in question is 10′ x 13′ which was further extended by 4 feet during the pendency of the eviction petition.

5. The learned Rent Controller has opined that when other rooms were available than the room in question which is 10′ x 13′ without water, kitchen, toilet or bathroom amenity, cannot be said to be suitable for residential purposes. This he basis on the testimony of the petitioner himself who, in his cross-examination, deposed that the room, as it exists, is not capable of being used as residential accommodation.

6. I have carefully gone through the evidence on record as also the reasoning of the learned Rent Controller. It appears to me that the petitioner has been able to get some accommodation on the ground floor which is two rooms, a kitchen, a bath room and that if this room is attached to the main house by creating an entrance, there is no reason why this room cannot be used for residence purposes. It must not be lost sight of that the house in question is primarily a residential premises and is being predominantly used for residence purposes. It is also not correct to say that the petitioner is hail and hearty and, therefore, is capable of enjoying the existing accommodation with his son. Nothing has been brought on record to show that the petitioner is not an old man suffering from old age diseases and does not need the accommodation on the ground floor. The petitioner has positively stated in his deposition that he needs ground floor for reasons stated therein.

7. The learned Rent Controller has also non-suited the petitioner on the ground that the partition is a sham document. This, with great respect, is not within the purview of the powers vested in the Rent Controller under the Act, as has been held by the Supreme Court in Kamal Tanan (deceased) by Lrs. vs. M.L. Vasishta (deceased) by Lrs. . The petitioner, according to me, having led ample evidence to prove his bona fide, cannot be non-suited only because he is purportedly in good health. As regards non-joinder of parties, it has been nobody’s case that the tenancy is not being enjoyed by Shri Harish Chander, the second respondent, by virtue of his claim through Smt. Bhawani Devi. Nor has any other so-called legal representative sought to have made any complaint to this effect during the pendency of the eviction petition. Surely, it cannot be said that they are unaware of these proceedings.

8. In this view of the matter, I am of the opinion that the petitioner has been able to establish his case under Sections 14B, 14(1)(e) of the Act. Accordingly, the petition is allowed and the judgment under challenge is set aside. An eviction decree under Sections 14B and 14(1)(e) of the Act is passed. The respondents are given six months’ time to vacate the premises in question. No order as to costs.