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Prem Sheel Malhan Vs. R.P. Chawla Etc. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal Nos. 223 and 226 of 1972
Judge
Reported in1974RLR522
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantPrem Sheel Malhan
RespondentR.P. Chawla Etc.
Advocates: Som Nath Katyal,; Chand Kumart,; D.N. Abbi,;
Cases ReferredViscount. Dunedin v. Mt. Saran and
Excerpt:
.....had been looked into it clearly shows a plea of premises being owned by joint hindu family. the fact that the evidence may have been given to show that the property was purchased by the funds supplied partly by the father as well as by the other brother would not necessarily exclude the ownership of the appellant in his personal capacity it may be that the family is joint but under hindu law there is no presumption that a joint hindu family necessarily owns any joint hindu family property. the next contention urged was that even if it is held that the appellant is the owner of the premises and also that he does not intend occupying it personally, yet as it is required for the occupation of father, brothers and sisters, it has to be held that clause (e) of the proviso is satisfied......his evidence application was moved for leading additional evidence to show that the house was the joint family property but the same was disallowed by the order of additional rent controller on 24th october, 1968. before the tribunal also an effort was made to lend evidence on this point and the landlord moved an application dated 20th sept., 1971 for this purpose. mr. mehra makes a grievance that the tribunal has passed no order on this but has been influenced merely by the dismissal of writ petition by this court against the order of mr. bahri dated 24th october,, 1968, and protests that dismissal was only a refusal to interfere in writ jurisdiction and not on merits. i do not think that is a correct reading of the order of the tribunal. the tribunal has really rejected the.....
Judgment:

Rajinder Sachar, J.

(1) [PETITIONER bought suit property on 22.12.61. It was in the occupation of 4 respondents and one Gurdas Ram as tenants. He sued the tenants U/S 14(1)(e) claiming requirement for his family members of 11. Shri P.K. Bahri, Arc, allowed petition against Gurdas but dismissed same against Abbi and Chawla holding that need for father, brother and sister was not bona fide. Similarly Sh. K.B. Andley. Arc, dismissed petitions against Katyal and Chand Kaur. 5 appeals were taken to Tribunal which were dismissed. Landlord alone filed appeals in High Court. Katyal gave possession during pendency of appeal.] Sao 223/72, 225/72 & 226/72 were adjudged thus :- Sao 223 of 1972. The respondents to this appeal are the legal representatives of the original tenant Om Parkash Chawla. Even before the Tribunal, Om Parkash Chawla had died, so his legal representatives had been brought on record by the order of Tribunal dated 23rd of July, 1970. It was so urged by Shri Bhatia, the counsel for the respondent that the appeal against Om Parkash Chawla was barred by time before the Rent Control Tribunal and, thereforee, the present appeal by the appellant automatically is not maintainable It appears that the attorney of the appellant filed one application for obtaining certified copies in all the three cases, namely, Abbi, Om Parkash Chawla and Gurdas Ram. However, on 19th September, 1970 he was told that only one copy can be supplied on one application and he immediately filed two other applications for obtaining the certified copies of the order relating to the case of Om Parkash as well as of Gurdas Ram. The applications for copy were, however, returned to him on 13th February, 1970 on the ground that the file has been sent to the Rent Control Tribunal. He on 16th February, 1970 (14th and 15th being holidays) filed an application for obtaining a certified copy before the Rent Control Tribunal and filed them on 11th March, 1970 i.e. the day the certified copies were made available to him. On these facts the Tribunal has taken the view, and in my view rightly, that the delay in filing the certified copy was due to the fact that the appellant-landlord under a bonafide mistake filed one application for obtaining a certified copy. There is thus sufficient cause for condoning the delay. The Tribunal has exercised its discretion in condoning the delay in filing the appeal against Chawla and I see nothing illegal or capricious in the exercise of that discretion. I would, thereforee, bold that the appeal before the Tribunal was filed in time.

(2) The next question is whether a valid notice terminating the tenancy of Om Parkash Chawla was issued to him. Aw 3/1 dated 1st December, 1967 is the notice sent to Om Parkash whereby his tenancy was terminated by the end of December 1967. Actually a reply to the above Aw 3/5 dated 28th December, 1967 was sent by Chawla's counsel. Notice is thus valid and proper. I would, thereforee, agree with the Rent Control Tribunal that the tenancy of Om Parkash Chawla was duly terminated. It was on the basis of this finding of the Rent Control Tribunal that the tenancy of Chawla had been validly terminated that Shri Mehra made his further argument that in the present case it was not necessary even to consider whether the landlord required these premises bonafide, or not because the legal representative of Om Parkash Chawla could not in any case resist the eviction application on the ground that O. P. Chawla was a statutory tenant and had only personal right to remain in possession and no rights accrue to his legal representatives as they were incapable of inheriting any estate and relied on Jagdish Chander Chatterjee and ors. V. Sh. Sri Kishan of 1972 RCR 675. In that case the ejectment application brought by the landlord on the ground that he required the house bonafide was allowed by the Munsif who decreed the suit for ejectment. The tenants' appeal was, however, allowed by the District Judge who held that the landlord did not require the premises reasonably and bonafide and dismissed the suit for eviction. The landlord filed appeal before the High Court. The tenant having died in the mean while, his legal representative was brought on record. The High Court came to the conclusion that it was not necessary to go into the question of bonafide reasonable necessity of the landlord as that was only protection provided to the statutory tenant personally under the Act and as the tenancy was duly terminated by notice and there was no other bar to the passing of decree in favor of the landlord, the order of the District Judge was set aside and the decree of the Munsif was restored.

(3) Agreeing with the High Court it was observed by the Supreme Court :-

'THEREFORE,the heirs and legal representatives of deceased B.N. Chatterji could not in their own right claim to be 'tenant' within the meaning of the Act. thereforee, the only contentions that they could put forward in the appeal were the contentions appropriate to their representative character and not one which was personal to the deceased. The contention based on the ground of bonafide requirement by the landlord was personal to the statutory tenant and on his death the same is not open to his legal representatives unless there is anything in the provision of the Act which makes the legal representatives statutory tenants to the same extent as the deceased. It is not the case that there is any other provision of the Act which gives protection to the legal representatives of the deceased statutory tenant.'

(4) The only distinction which Shri Bhatia attempted to spell out was that in the Supreme Court's case the eviction application had been allowed in the first instance by the Munsif while in the present case eviction petition has not been allowed at any stage by either of the courts below. I do not find any substance in this distinction. The law laid down by the Supreme Court is that as no rights devolve to the legal heir of statutory tenants he can only put forward the contention appropriate to his representative character and contention based on the ground of bonafide requirement by the landlord was not open to the legal representative of statutory tenant. Just as in the case before the Supreme Court, the eviction application stood dismissed when the High Court was seized of the matter and it was held that on the death of statutory tenant, the application deserved to succeed without going into the merits of the plea of bonafide requirement by the landlord.

(5) The result will be that S.A.O. 223/72 will be allowed and the orders of the court below dismissing the eviction application are set aside and instead the eviction application filed by the appellant is allowed and an order of eviction is passed against the respondent directing them to deliver the possession to the appellant. The respondents, however, will be given six months' time to vacate the premises. Re : SAOs 225 and 226 of 1972.

(6) AW3/2 is the copy of notice dated 4th December 1967 addressed to respondent Abbi. AW5/8 is the A.D. receipt which shows that the notice was served on the respondent. It is thus, amply proved that his contractual tenancy was duly terminated. In the case of Chand Kaur the landlord sent a notice Ext. AW1/4 dated 24th May, 1965 whereby the tenancy was terminated with effect from last day of the month of June 1965, AW7/5 and AW7/6 being the postal receipts. Aw 7/7 is the reply sent by the tenant Chand Kaur. It is, thus, amply proved that the notice was duly served and the contractual tenancy was duly terminated. Nothing has been pointed out to challenge the validity of the notice. It is, thus, proved that the tenancy of Chand Kaur and Abbi was validly terminated by notice duly sent. That the premises were let for residential purposes was not disputed. It is not disputed that the immediate family of the appellant Shri Malhan consists of himself and his wife and that he is a government servant and posted at Bombay where he is living with his wife. The appellants other family members consist of his father, mother, four brothers and three sisters. Those persons are living in a rented house in Delhi and the accommodation consists of two living rooms. It is also not in dispute that the premises are required for occupation not by Prem Sheel Malhan and his wife who are living at Bombay, but for the occupation of father, brothers and sisters of Prem Sheel Malhan. It was also not disputed that if the requirement of the family is to be considered with reference to the requirement of the appellant, his wife, brothers and sisters, the present accommodation with them would be inadequate and it would have to be held that the landlord required bona fide the premises for their occupation, but that if the requirement is to be comsidered only with reference to the appellant and his wife, the accommodation which is now available to him, namely, the portion of Gurdas Ram and of Katyal as well as of Om Parkash Chawla (which I have allowed by this order) the accommodation would be sufficient to meet his requirements. Mr. Mehra urged that the Tribunal has erred in considering the requirement with reference to only appellant and his wife and not of the father, brothers and sisters. The first limb of this argument is that in fact the house is owned by the Joint Hindu Family and, thereforee, the requirement of all the members of the Joint Hindu Family would have to be considered when considering the requirement of occupation of the landlord-owner for the house. Both the courts below have held that the appellant alone, and not Joint Hindu Family, (consisting of L.R. Malhan, the father, the appellant and his sisters and brothers) is the owner of the house. Clause (e) of Proviso to Section 14(i) contemplates the requirement bona fide of not merely a landlord, but a landlord, if he is the owner, so that before a landlord can claim eviction under the clause it has to be shown that he is the owner of the premises. Apparently for this reason in para 18-A of the eviction application against Abbi it was stated that Prem Sheel Malhan was the owner of the premises in dispute. No. doubt, it was stated in the same para that the petitioner's father is Ex-Secretary of D.D.A. and that this is the only house of the petitioner and his joint Hindu Family in Delhi and that the house was purchased in 1961 with the object of providing independent residential accommodation to all the members of the family in one and the same house. The mention that the property was purchased so that the family may live in one house is merely a reason or a motive for the purchase of the house by the appellant. It is not understood why if the property was claimed to be Joint Hindu Family property a straight allegation was not made in the petition that the house is owned by the Joint Hindu Family & is required bona fide for the occupation of all the members of Joint Hindu Family. On the other hand, there is a categorical assertion that the appellant is the owner of the premises in dispute. A reference to sale-deed Ext. AW6/A will also show that the sale was executed between vendor on one side and the present appellant on the other as the vendee. There is no mention at all in the sale-deed that the appellant was purchasing this property on behalf of Joint Hindu Family and not in his own individual capacity. L.R. Malhan in his statement, dated 29th December, 1967, in S.A.O. 225 of 1972, has clearly stated that the premises in dispute is solely and exclusively owned by the appellant, which is going counter to the suggestion that the property is owned by the Joint Hindu Family. The eviction application against Chand Kaur had been moved on 29th September, 1967, where also allegations are made in identical manner as the allegations in the petition against Abbi filed on 6th February, 1968. It may be mentioned that in the eviction application against Abbi after the landlord had concluded his evidence application was moved for leading additional evidence to show that the house was the joint family property but the same was disallowed by the order of Additional Rent Controller on 24th October, 1968. Before the Tribunal also an effort was made to lend evidence on this point and the landlord moved an application dated 20th Sept., 1971 for this purpose. Mr. Mehra makes a grievance that the Tribunal has passed no order on this but has been influenced merely by the dismissal of writ petition by this Court against the order of Mr. Bahri dated 24th October,, 1968, and protests that dismissal was only a refusal to interfere in writ jurisdiction and not on merits. I do not think that is a correct reading of the order of the Tribunal. The Tribunal has really rejected the application for leading additional evidence on the point of the premises being owned by Joint Hindu Family on the ground that as no specific plea was taken no evidence could be looked into and in my view he was justified in taking this view because it is well settled that no amount of evidence can be looked into upon a plea which was never put forward vide Viscount. Dunedin v. Mt. Saran and others . Mr. Mehra next contended that if the substance of the pleading had been looked into it clearly shows a plea of premises being owned by Joint Hindu Family. I cannot agree. There was a definite averment by the appellant that he was the owner of the house. The sale-deed also showed him as the owner. The fact that the evidence may have been given to show that the property was purchased by the funds supplied partly by the father as well as by the other brother would not necessarily exclude the ownership of the appellant in his personal capacity it may be that the family is joint but under Hindu Law there is no presumption that a Joint Hindu Family necessarily owns any Joint Hindu Family property. There was, thus, no plea, even substance that the premises were owned by Joint Hindu Family property. Mr. Mehra then sought to refer me to that eviction application against S.N. Katyal, wherein it is stated that the property in dispute was a joint property of the family. It may be mentioned that an application against S.N. Katyal was filed on 23rd of September, 1968 by which the question of the property being joint or not had obviously become a matter of serious controversy in the previous eviction application against a present rest pondent Chand Kaur and Abbi. Mr. Mehra can not derive any assistance from the pleadings therein because that application was tried separately by Mr. Andley, Additional Rent Controller and pleadings and evidence recorded in that case can not be read in the present applications. It is also not necessary for me to deal with the aspect of Benami transaction as dealt with by the Tribunal in the case against S.N. Katyal because that appeal has already been dismissed as infructuous, as mentioned above. It is also relevant to note that even though effort was made before the Rent Controller and also before the Rent Control Tribunal to lead additional evidence as no effort was made to amend the pleadings in the eviction application taking the plea that the Joint Family and not the appellant was the owner of the property. The contention of Mr. Mehra that the premises were owned by Joint Hindu Family and not the appellant in his own name must, thereforee, be repelled. The next contention urged was that even if it is held that the appellant is the owner of the premises and also that he does not intend occupying it personally, yet as it is required for the occupation of father, brothers and sisters, it has to be held that Clause (e) of the proviso is satisfied. Now Clause (e) of proviso to sub-section (1) of Section 14 mentions two requirements, namely, when the premises are required for occupation bona fide, as a residence :- (a) for himself (b) or for any member of his family dependent on him. It is true that in the eventuality of (b) above, the premises could be got vacated if they were required for occupation for any member of the family dependent on landlord, even if landlord did not intend occupying it. It is also true that the word 'dependent' has been construed to mean a person not wholly independent or self-supporting and in a position to set up separate residence, vide case Shri C.L Davar v. Shri Amar Nath Kapur, 1962 P.L.R. 521 and case P.D. Sharma v. Shri Ram Lubhaya, 1969 R.C.R. 992. but in the present case father, brothers and sisters cannot be held to be dependent even on this construction because it is nobody's case that either because of financial reasons or health or moral reasons any of these members is dependent on appellant. It was nobody's case that appellant in any way contributed to the upkeep of the other members of the family, Mr. Mehra referred me to Anthony Kochuvariathu Vs Chokkalinga Nadar, 1971 R.C.R. 276. in that case it was found that the father and his two married sons were living in a building which did not have sufficient accommodation for the growing needs of the sons. It was for this reason that the father sought eviction of the tenant from another building on the ground that he needed it for occupation of his sons. It was in this context that the learned Judge there observed that in these circumstances it must be held that the sons were dependent on the father because they could not find separate building for their residence that they are dependent on the father for the purpose, and that if father feels that to avoid congestion other accommodation is to be found he cannot be blamed for that. In the present case the appellant and other members of the family are living at separate places and no such dependancy arises. Dependancy cannot be stretched to include the need of any other member of the family simply because he needs accommodation, when he is not dependent on the owner of the house. To stretch the interpretation of the meaning to be-given to the word 'dependent' in such a manner would make the second part of the clause otiose because this would mean that if any relation of the owner, even if totally independent financially would be covered within the meaning dependent on the facile reasoning that as he is in need of accommodation he should be deemed to be dependent for that purpose on the landlord. The interpretation is against the plain meaning of the clause and against the very purpose, is and would run counter to the meaning of dependent accepted by this Court, and cannot be accepted. This authority is, thereforee, of no assistance to the appellant. Next case referred was V.S. Bogore. Regional Accounts Manager, Air India, London v. The Deputy Commissioner, Mysore District and others, 1969 R.C.R. 732. That was a writ petition where the Deputy Commissioner had refused permission to occupy the premises to the landlord even when the same had become vacant in pursuance of an application presented by the landlord for the eviction of his tenant on the ground that he bona fide required it for his own occupation. It was also found that the house was required for the occupation of the daughter of the landlord who was studying in Mysore. It was also found that landlord made periodical visits to Mysore. The reference in this authority to the desire of the landlord that his parents should occupy house was not the reason for the decision but only a fact in addition to the need of landlord himself. This authority has no applicability. As thereforee the landlord is not going to occupy it himself no decree for eviction could be passed on second part of Clause (e) unless it was shown that members of the family are dependent on him vide Civil Revision 411-D/61 decided on 20th of October, 1971. The next question is whether the present case can be covered on the ground that the premises are required by landlord as a residence for occupation for himself. It is true that the word 'himself cannot necessarily always be limited to immediate family member and has to be given extended meaning. As held by me in 1970 R.C.R. 493, J.L. Mehta v. Shrimati Hira Devi, P. 948, 'the word 'himself' obviously cannot be restricted to the landlord or the landlady alone as the case be as it would be making it completely unworkable if one was to restrict it in grammatical sense. The question that arises, thereforee, is as to how far the meaning of the word 'himself' can be stretched to include not only the requirement of the landlord but of others also. In each case, of course, it will have to, be seen whether the requirement of the landlord in asking for eviction by claiming the requirement of some other persons to live with him is justified by the circumstances so as to be covered by the requirement of the word 'himself.' ...the test in each case whether the landlord requires the premises for himself is to see whether the person for whom the premises are required is coming to live as member of the family so as to fulfill the need of the landlord 'himself.' If is apparent that a condition precedent for' the applicability of the first part of Clause (e) is that the premises are required by the landlord for occupation as a residence for himself. Before thereforee an extended meaning to the word 'himself is given it must be proved that the landlord is going to occupy the premises himself. If he is not going to occupy the premises, as in the present case, it is not understood how it can be held that occupation by father, brother and sister (who are not dependent on the appellant) can be held to be for the need of the landlord. No case has been cited where without the occupation by the landlord himself the occupation by members of family not dependent on him was held to be entitled the landlord for recovery of premises in first part of Clause (e). I cannot, thereforee, agree that appellant's case is covered by first part of Clause (e) of Proviso to Section 14(i) of the Act. I would, thereforee, hold that no grounds for eviction have been made out against the respondents Chand Kaur and D.N. Abbi. In the result I would affirm the finding of the court below and dismiss S.A.O. Nos. 225 and 226 of 1972. However, as already mentioned S A.O 224 of 1972 will be dismissed as infructuous. with no order as to costs. S.A.O. 223 of 1972 will, however, be allowed. There will be, however, no order as to costs in all these appeals.


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