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Krishana Kumar and anr. Vs. Vimla Saigal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 137 of 1967
Judge
Reported in5(1969)DLT671
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantKrishana Kumar and anr.
RespondentVimla Saigal and ors.
Advocates: S. Pappu,; Vineet Kumar,; Bindra Thakur and;
Cases ReferredPanju Mal v. Smt. S. L. Keshwani
Excerpt:
.....the doctors to live on the ground-floor. 5, a vaid examined by the landlord and it was felt by the learned tribunal that certificates like exhibit a. his doctors, however, fail him on the point and the evidence of these witnesses, uninitiated in the medical line, cannto be attached any greater importance. the word 'bona fide' in this context has been construed to mean in good faith or genuinely, conveying absence of intent to deceive. according to the learned judge, if the needs of the landlord in fact exist, and are commensurate with his circumstances, such as the size of his family, his social status and social habits and style of living and it is found that the landlord has sought eviction of the tenant on good faith, then it is a case in which he requires the building for his own..........to india, but the fact of his return to india was nto considered in detail. (4) on appeal, the learned tribunal, before dealing with merits. observed in the impugned order that since apart from the ejectment proceedings, there had been both civil and criminal litigation between the parties, the evidence led by the landlords in support of their second attempt to eject the tenant deserved to be examined with a certain amount of care and caution. the learned tribunal then dealt with the allegation of the serious heart attack said to have taken place in july, 1964, just before the decision of the high court dated 31-7-1964, in s.a.o. 161-d of 1963 in the previous ejectment proceedings. according to the learned tribunal, the judgment of the high court exhibit r.w. 6/3 suggested that the.....
Judgment:

I.D. Dua, J.

(1) The controversy raised in this second appeal from order under section 39 of the Delhi Rent Control Act 59 of 1958 has a very long and chequered history. It really highlights the frequent clashes between the landlords and tenants due to shortage of accommodation in Delhi and the consequential steep rise in rents. That educated and respectable landlords and tenants residing in different portions of the same building and expected as good citizens to possess a realistic sense of civil behavior, should, instead of being close friends and helpful neighbours, be parties to criminal and civil litigation, arrayed on opposite sides, can hardly be a ground for paying a tribute either to their practical and balanced sense of social behavior or to the conditions in our welfare set-up which breeds such situations This indeed is nto the first case of its kind which this Court has had to deal with in recent times. Parties in such situations can scarcely have the requisite peace of mind, leave alone the mental worry, expenses, physical both ration and wastage of time to which they must find themselves to be subjected. In a welfare State like ours, where the fundamental right to property is guaranteed by the Constitution, and where, inter alia, making provision for adequate means of livelihood and decent standard of living are the fundamental principles laid by the Constitution in the governance of the country, one can legitimately look up to the authorities concerned to see that reasonably adequate provisions for decent residential accommodation for the citizens is provided, whether in the public or in the private sectors. The authorities have to be responsive to the human needs of the people. Neglect or undue indifference in this respect may only tend to foster bitterness between landlords and tenants and such hostile attitude between them is likely to have serious adverse impact on their good citizenship.

(2) Turning to the facts of this case, the present application for eviction on the ground of bona fide personal requirement for residence of the landlord-owner and of his family members dependent on him was filed in November, 1964. Petitioner No. 1 is Krishana Kumar and petitioner No. 2 is his wife Radha Rani, it being stated in the application that petitioner No. 1 is the owner- landlord of the house, but the same was let out by his wife petitioner No. 2. In the previous litigation between the parties, according to the averments of the application for ejectment, it had been held that petitioner No. 1 was the owner-landlord. Petitioner No. 1, is, according to the application, a heart patient and needs the ground-floor very urgently. Previously, he had filed a petition for eviction of the tenant on the ground of bona fide personal necessity, but the condition of his health was held nto to be such as demanded immediate shift to the ground-floor. The ground of ill-health thus did nto exist at the time of the previous application, but from July, 1964 onwards, according to him, he had serious attacks of heart trouble and this change in the situation necessitated initiation of the present eviction proceedings.

(3) This prayer was successfully resisted by the tenant and on 28-12-1965, the learned First Additional Rent Controller disallowed the application for ejectment. The first point discussed by the learned Additional Controller was that of rest judicata and after considering the earlier order of a learned Single Judge of the Punjab High Court dated 31-7-1964, it was observed that it could nto be said that the present petition was barred by the principle of rest judicata because change in the circumstances had occurred. It was, however, added that in case the petitioner Krishana Kumar was able to prove that he had suffered from heart attacks after the termination of the previous litigation and that he had been advised by the doctors in a bona fide manner that he should nto live on the first floor, then the spent plea for ejectment could nto be considered to be barred by the principle of rest judicata. It was in the circumstances a question of fact to be proved by the petitioner as to whether Krishana Kumar had suffered the two heart attacks as alleged by him and there was an advice by the doctors against his living on the first floor. It was in the background of this observation that the learned Additional Controller proceeded to consider the evidence on the record and came to the conclusion that the petitioners had failed to prove that Krishana Kumar was suffering from any heart disease or that he had been bona fide advised by the doctors to live on the ground-floor. The plea of the petitioners nto being possessed of reasonably suitable accommodation was, however, held to be barred by the principle of rest judicata because in the previous litigation, the accommodation in his possession was held to be more than reasonably suitable for him and for his family members. In the earlier proceedings, it had also been held that one of the petitioner's sons who was studying in England, was nto dependent on him. That son had since returned to India, but the fact of his return to India was nto considered in detail.

(4) On appeal, the learned Tribunal, before dealing with merits. observed in the impugned order that since apart from the ejectment proceedings, there had been both civil and criminal litigation between the parties, the evidence led by the landlords in support of their second attempt to eject the tenant deserved to be examined with a certain amount of care and caution. The learned Tribunal then dealt with the allegation of the serious heart attack said to have taken place in July, 1964, just before the decision of the High Court dated 31-7-1964, in S.A.O. 161-D of 1963 in the previous ejectment proceedings. According to the learned Tribunal, the Judgment of the High Court Exhibit R.W. 6/3 suggested that the heart attacks said to have taken place during the months of May and June, 1964, were nto referred to therein during the arguments. The omission of the High Court to deal with these attacks, thereforee, raised a serious doubt in the mind of the learned Tribunal in regard to the statement of Shri Anand Swami A.W. 5, a Vaid examined by the landlord and it was felt by the learned Tribunal that certificates like Exhibit A.W. 5/1 could be fabricated at any time and ante-dated. Two other doctors examined by the landlord in support of his allegation that he had suffered from two serious heart attacks during the months of July and September, 1964, were also nto considered to be very impressive because during those months, some criminal cases are stated to have been filed by the landlord against the respondent for defamation, assault and there were also pending between the parties proceedings for security to keep peace, in addition to an ejectment case on ground of non-payment of rent. According to the learned Tribunal, these activities would suggest that the heart- attacks of the landlord could nto be very serious. The medical evidence was then discussed by the learned Tribunal and omission on the part of the landlord to produce Dr. P.C. Dhanda, heart specialist, was taken into account and after referring to the doctors produced by the tenant, the learned Tribunal dismissed the appeal expressing its view in the following words :-

'IT is always easy for a person who has been litigating for some time and who has consequently gained some experience to create evidence by filing frequent leave applications or by making reports and staying with a few colleagues or friends that it is necessary for him to live on the ground-floor. His doctors, however, fail him on the point and the evidence of these witnesses, uninitiated in the medical line, cannto be attached any greater importance.'

In regard to the suitability of the accommodation in the occupation of the landlord, the learned Tribunal was impressed by what he described to be a unanimous verdict of four Courts against him. The argument on the basis of the return of the landlord's son from England was disposed of with the remark that in the previous case the son had nto been treated as a dependent on the appellant-landlord.

(5) On second appeal in this Court, it has been contended that the entire approach of both the Controller and the Tribunal suffers from a grave legal infirmity inasmuch as they both feel that the landlord has affirmatively to prove a damaged heart if he has o be granted the relief of evicting his tenant and of laying on the ground-floor of his own house. Reliance in support of this contention has been placed on a Bench decision of the Punjab High Court in Jiwan Dass v. Smt. Devi in which it was observed that the bona fides of the owner have to be judged from the state of facts prevailing at the time when the owner makes a claim for eviction of the tenant and that no ulterior considerations can be taken into account. Reference has also been made to an unreported decision of the Punjab High Court in Vishnu Dass v. Shri Mange Ram (S.A.O. No. 26-D of 1962 decided on 22-5-1964) and to a recent unreported decision of this Court in Om Prakash v. Roshan Lal Khanna (S.A.O. 216-D of 1966 decided on 11-12-1968)

(6) The respondent's learned counsel Sh.ri K. L. Sethi has submitted that the landlord-owner had built the ground-floor of the premises in question in 1957 and the upper storey in 1959 and that several attempts have been made by them to increase the rent of the premises in the occupation of his client. He has drawn my attention to Exhibit R.W. 6/8, the order in the previous ejectment proceedings, and has submitted that this order operates as rest judicata and deprives the land-lord-owner of his right to claim eviction on the ground of personal requirement. The owner's son, according to the counsel, resides at Saharanpur where he has a chappal factory. The landlord who is stated to be 58 years old, is said to be residing in the premises in his occupation only with his wife and for these two persons, so submits the counsel, the accommodation in their occupation is reasonably suitable. The appellants' submission that the landlords' children, including an unmarried daughter, about 19 years old, and a son, about 26 years old, are living with them, is controverter by Shri Sethi. It is finally contended that no substantial question of law is involved in this appeal. Reliance in this connection has been placed on Jaswant Singh v. Smt. Prem Kumar and an unreported decision of this Court in Panju Mal v. Smt. S. L. Keshwani (S.A.O. 270 of 1967, decided on 20-11-1968).

(7) It is undoubtedly true that normally speaking the question of bona fide requirement of a landlord-owner is one of fact and it is also indisputable that a second appeal under section 39 of the Delhi Rent Act of 1959 lies only if a substantial question of law is involved. This basic legal position is settled beyond controversy, though in some cases, appeals have been allowed without noticing the restricted scope of section 39. Let us now see if the present second appeal involves any substantial question of law.

(8) The plea of bona fide requirement by the land-owner of the premises for occupation as a residence for himself or for members of his family dependent on him has been the subject-matter of judicial consideration in a large number of decisions, both by the Punjab High Court and by this Court. The expression 'required bona fide by the landlord for occupation as a residence-has been construed in some judicial pronouncements nto to mean that the landlord has absolute necessity for the accommodation of which he seeks possession for occupation as residence. It has been observed in some decisions that if the landlord genuinely and honestly desires to live in his own house, then his case falls within this expression. The word 'bona fide' in this context has been construed to mean in good faith or genuinely, conveying absence of intent to deceive. If there is no collateral or oblique motive, then the landlord has been held in those decisions to satisfy the condition of bona fides. In the Full Bench decision of the Punjab High Court in M/s Sant Ram Des Raj. v. Karam Chand, Mehar Singh J. (as he then was) considered it to be settled that the word 'requires' as used in section 13(3)(a)(1)(a) of the E.P.U. Rent Restriction Act of 1949 involves something more than a mere wish and that it has in it an element of need to an extent at least. According to the learned Judge, if the needs of the landlord in fact exist, and are commensurate with his circumstances, such as the size of his family, his social status and social habits and style of living and it is found that the landlord has sought eviction of the tenant on good faith, then it is a case in which he requires the building for his own occupation and should be considered to have completely fulfillled the statutory conditions. In my view, the Delhi Rent Act affords protection to the tenants from unscrupulous landlords who use the plea of personal residence as a veil for extorting exorbitant rent from tenants and it protects the tenants against whimsical or arbitrary eviction, but it does nto impose on the owner-landlord any obligation to sacrifice the genuine requirement of his own comforts merely because he has at one time thought proper or considered it necessary, on account of circumstances, to let out his premises. This Act does nto completely divest him of his right to reside in his own residential premises if he requires the same bona fide for the purpose. The word 'bona fide'', according to the dictionary meaning as also according to legal terminology, as commonly understood and accepted, connotes good faith which is suggestive of honesty of purpose. If, thereforee, the landlord requires the premises for occupation as residence in or with good faith or with sincerity or genuinely, without fraud or deceit, then he would seem to me to have established that the premises are required bona fide by him. But this by itself is nto enough to entitle the landlord to claim an order of eviction. The statute has placed one more hurdle in his way which seems to be inspired by the anxiety on the part of the Parliament to protect the tenant against whimsical, arbitrary or fanciful desire on the part of the landlord to reside in his own house and on such plea to evict the tenant. This hurdle is created by the last part of proviso(e) according to which the landlord seeking eviction for his residence has in addition to his good faith to show that he has no other reasonably suitable residential accommodation. Proviso(e) has, thereforee, to be construed as a whole, with the result that merely because the premises are really and genuinely required by the landlord for his own occupation as a residence, he cannto succeed unless he further satisfies the Rent Controller that he has no other reasonably suitable residential accommodation. In other words, the irrational desire or wish of the landlord, however, strong cannto be considered conclusive as against the tenant's right as protected by the Delhi Rent Act. The request of the landlord has, however, to be viewed from a practical point of view, nto confined to considerations of extent of accommodation alone and he must be conceded reasonable liberty to select for rational and plausible reasons to live in his own house. The question of the landlord-owner having other reasonably suitable residential accommodation has similarly to be determined nto from the point of view of mere space but on a consideration of all the relevant factors in a given case, including age, general health of the owner-landlord and of the members of his family and a host of other relevant considerations which it is neither desirable nor possible to exhaustively enumerate or specify so as to serve as a straight jacket covering all cases. It may further be pointed out that the conception of dependence of the members of the landlord's own family, as envisaged in section 14(1) proviso(e) of the Act, is nto confined to financial dependence alone, nor is the word. 'dependent' in this context to be construed as meaning wholly dependent in the sense of earning anything at all and depending entirely on the landlord for board, lodging and food. It would on the other hand appear to have been used to suggest as a person nto wholly independent or self-supporting and in a position to set up separate residence, and this may be due to various reasons.

(9) In the background of the legal position just stated, it seems to me that the learned Tribunal as also the learned Additional Rent Controller have considered the case from a legally erroneous point of view on a vital matter affecting the rights of the parties. They seem to think that unless the landlord can affirmatively establish a damaged heart or unless a specialist medical expert proves that he is nto able to climb up the stairs, the landlord cannto establish bona fide of his requirement to reside on the ground-floor. It may appropriately be pointed out that after a certain age , a person may be advised, by way of precaution or as a preventive measure, nto to climb up the stairs in order to protect his heart from possible damage by reason of excessive strain. If such circumstances exist, then also it may satisfy the statutory requirement and actual damage to the heart may nto be insisted upon an essential mandatory condition precedent in order to give to the landlord possession of the ground-floor for residence. The fact that there are certain criminal proceedings pending between the parties may cut both ways and it does nto necessarily show that the landlord does nto require the premises bona fide for his residence and that he is resorting to these eviction proceedings for a collateral purpose or with an oblique motive. Genuine requirement may well induce a party to resort to various methods to secure possession of the ground-floor. All the circumstances have, thereforee, to be taken into account collectively so as to have an overall view of the situation. The learned Tribunal further seems to have ignored that the tenant had also applied to the Court for summoning Dr. P. C. Dhanda, the well-known heart specialist, but he was nto produced. The tenant's application through his counsel Shri S. N. Anand for summoning Dr. Dhanda is dated 27-3-1965 and he was required to be produced as a witness for proving and explaining E.G.G. dated 3-9-1964 which was stated to have already been filed in Court. The next date for hearing was 29-3-1965 and the summonses were asked for dusty. The landlord's evidence concluded on 1-5-1965 and after lunch on that very day, the recording of the tenant's evidence began. Dr Dhanda was, however, nto produced and nothing has been said at the Bar explaining the reasons for his non-production by the tenant. The failure of the appellant-landlord to examine Dr. Dhanda seems to have given rise to serious doubt in the mind of the learned Tribunal about the ground for eviction but the learned Tribunal did nto notice that the tenant, who had also actually applied to the Controller for summoning Dr. Dhanda to explain the E.G.G. which was on the court record, did nto pursue the application effectively for examining him. In enquiry from both sides in this Court and they both expressed their willingness to produce Dr. Dhanda. They were even agreeable to bear half and half costs of the examination if the Court were to elect to examine him as a court witness.

(10) In view of the attitude adopted by both sides before me, and for the reasons foregoing, without going further into the matter, I consider it proper and just to quash both the orders of the Rent Control Tribunal and of the Additional Rent Controller and remit the case back to the Additional Rent Controller for examining Dr. P. C. Dhanda as a Court witness, for whose examination expenses would be borne equally by both sides. Both parties would be entitled to put questions to Dr. Dhanda. If any further evidence is sought by either party to be produced, such prayer would be considered by the learned Additional Rent Controller in accordance with law. After examining the evidence duly and lawfully produced, the learned Additional Rent Controller would proceed to come to a fresh decision in accordance with law and in the light of the observations made above. This order must nto be understood to be an expression of my opinion on the merits either way and the Additional Controller would be free to come to his own independent judicial conclusion on the material on the record on a consideration of all the relevant circumstances of the case. The question of bonafide requirement for residence, it may be kept in view, falls for determination on the state of facts existing at the initiation of the proceedings. The general principles of rest judicata which are attracted in the larger cause of justice have, thereforee to be applied bearing this aspect in mind.

BEFORE finally closing, I would like to point out that proceedings founded on the plea of bona fide requirements for residence by the landlord require expeditious disposal and this is all the more so where the plea is based on grounds of health. In this case, I also happen to find on a perusal of the record pertaining to the proceedings during the months of March and April, 1965 that on a number of occasions, adjournment was sought on unsubstantial grounds and the learned Controller also felt constrained to observe on 28-4-1965 at p. 214-15 of the record that the respondent had been giving applications on every hearing for adjournment. The question of adjornment, it may be remembered requires application of judicial mind, keeping in view the interests of both the litigating parties and also of the judicial process, including working of the Court.

(11) Parties are directed to appear in the Court of the learned Additional Controller on 3-2-1969.


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