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S.K. Chatterjee Vs. Subrata Bids Was - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 18 of 1981
Judge
Reported inAIR1984Delhi217; 25(1984)DLT124; 1984RLR257
ActsDelhi Rent Control Act, 1958 - Sections 14(1); Code of Civil Procedure (CPC), 1908 - Sections 11
AppellantS.K. Chatterjee
RespondentSubrata Biswas
Advocates: R.K. Makhija,; Amresh Mathur and R.N. Chowdhury, Advs
Cases ReferredKrishan Kumar v. Vimla Saigal
Excerpt:
.....for eviction on the ground of personal requirement on 1.8.1978. that application was dismissed on 10.12.1980 against which the present revision has been filed. the petitioner remained satisfied with the accommodation on the ground floor. one cannot make out a virtue out of the compulsions of the landlord and because he has suffered in the past he should be condemned to do so......under clause (e), the learned controller held that the petitioner was in possession of the entire ground floor which consisted of one drawing-cum-dining room and two bed rooms. his family comprised of himself, his wife, three unmarried sons, one married son, one married daughter and one aunt as well. the daughter and the aunt were not dependent on him for accommodation. the barsati floor fell vacant during the pendency of the proceedings. it comprised of two rooms. the barsati was let out by the petitioners to some other tenants after it was vacated by the previous tenant. it again fell vacant in 1974 and is available with the petitioner for occupation. the accommodation with the petitioner by no stretch of imagination can be said to be unsuitable and insufficient for the needs of the.....
Judgment:

M.L. Jain, J.

(1) The petitioner is the landlord. The respondent is the tenant. The premises in question are C-233 Greater Kailash I, New Delhi. They comprise two bed rooms and one drawing and dining room in the first floor. Monthly rent is Rs. 300.00 per month. The premises were let for residential purposes on 11.6.1968. The landlord brought eviction proceedings under section 14(1) of the Delhi Rent Control Act, 1958 (herein the Act) on 24.9.1970, on the grounds of subletting, default in payment of rent, misuse and bonafide requirement. By an order of 14.12.1970 the Rent Controller held that the claim for eviction on the ground of non-payment of rent under clause (a) of the proviso to sub-scc. (1) of scc. 14 was premature. The petition was dismissed on 4.3.1978 on the ground that the tenancy was not terminated by serving a valid notice. While doing so, the learned Controller also rejected that no subletting on parting with possession was proved within the meaning of clause (b). Similarly, the allegation of misuse under clause (e) was also rejected. With regard to bonafide requirement under clause (e), the learned Controller held that the petitioner was in possession of the entire ground floor which consisted of one drawing-cum-dining room and two bed rooms. His family comprised of himself, his wife, three unmarried sons, one married son, one married daughter and one aunt as well. The daughter and the aunt were not dependent on him for accommodation. The barsati floor fell vacant during the pendency of the proceedings. It comprised of two rooms. The barsati was let out by the petitioners to some other tenants after it was vacated by the previous tenant. It again fell vacant in 1974 and is available with the petitioner for occupation. The accommodation with the petitioner by no stretch of imagination can be said to be unsuitable and insufficient for the needs of the petitioner. The petitioner, thereforee, was held to have failed in establishing the grounds of bonafide requirement,

(2) The landlord, thereforee, after giving a fresh notice filed a fresh application for eviction on the ground of personal requirement on 1.8.1978. That application was dismissed on 10.12.1980 against which the present revision has been filed.

(3) The learned Addl. Controller held that the petition is hit by principles of rest judicata. The earlier eviction petition was not dismissed merely on a technical ground and a petition on the ground of bonafide necessity cannot be filed without a new cause of action. A new cause of action means new circumstances necessitating a requirement of more accommodation to the petitioner, such as increase in the members of the family or some other apparent need. The only change that has taken place in the family was the arrival of a granddaughter, but balanced by the departure of the second daughter after marriage. The premises in question were let out in the year 1968 and since then the members of the family has remained the same except that they were now older by ten years. The petitioner remained satisfied with the accommodation on the ground floor. The barsati floor was being let out to various tenants from 1968 onwards. The petitioner never occupied this accommodation and continued letting it out as and when it -fell vacant. The learned Addl. Controller rejected the argument that the barsati floor was not suitable for his residence. The Addl. Controller was further influenced by the fact that the petitioner lived with the entire family in a congested manner for many years when he could have easily occupied the barsati floor. Though landlord has every right to make himself comfortable and the tenant cannot arrogate to himself the right to manage the affairs of the landlord, yet it does not mean that the landlord can act in fanciful fashion. On the one hand, the landlord is crying for additional accommodation, on the other he is found letting out the second floor to new tenants. The Addl. Controller, thereforee, refused to come to the rescue of the landlord because 'god helps those who help themselves'. He also concluded that the petition for eviction was made with oblique motive and was malafide.

(4) In this revision petition, some additional facts with regard to the changes in the family set-up have been brought on record. I have been of of the firm and consistent view that such subsequent facts have to be taken into consideration in order to avoid multiplication and, prolongation of litigation. There can be no objection to such,a course specially when facts are not in dispute. The position today is that the family of the petitioner comprised of (1) petitioner aged 73 years,.(2)his wife aged , years, (3) his oldest son and his wife with a child of 8 years, (4) his second son and his wife and a child. The second son has fallen sick with pleural effusion which is an infectious disease, and is required to be kept in isolation, (5) his third son aged 28 years is going to be married on 18.11.1983 and this is not denied by the tenant, (6) his fourth son is aged 24years,and (7)two married daughters. The minimum requirement of the landlord appears to be as follows :

(1)one room for himself and his wife ; (2) one room for his eldest son and his family ; (3) one room for the second son as tie is to be segregated on account illness; (4) one room for his wife; (5) one room for the third son ; (6) one room for the fourth son ; and (7) one room for the two married daughters for their visits. 7 rooms is all.

The accommodation in possession of the landlord is : Ground floor-one drawing-cum-dining room, and two bed rooms and Barsati floor-two rooms. thereforee, there is doubt that there is shortage of accommodation and the requirement of the landlord of the first floor is genuine. It is by no means whimsical or fanciful. The demand of eviction of the first floor is reasonable and justified. It is not the case of the tenant that the petitioner wants to increase the rent. The learned Addl. Controller appears to have approached the problem with certain pre-conceived notions. One was that the letting and reletting of the barsati floor showed want of bonafides. But that fact has ceased to be of any consequence because even after taking into consideration the accommodation of the barsati floor which is now fallen vacant, the requirement of the landlord is not met. The second was that the landlord is used to living in a substandard accommodation in a congested manner and cannot ask for more space. One cannot make out a virtue out of the compulsions of the landlord and because he has suffered in the past he should be condemned to do so. I, thereforee, reverse the finding that the requirement is malafide.

(5) According to Order 14 Rule 2 Cpc, where the court is of opinion that the case or any part thereof may be disposed of on any issue of law relating jurisdiction or a legal bar to the suit, it may decide that issue first. Otherwise, it is required to pronounce judgment on all issues along with the preliminary issue on which the case may be/disposed of. In Vithal Yeshwant Jathar v. Shikandar Khan Mukhtum Khan Sardesai, : [1963]2SCR285 , and Gangappa Gurupadappa Gugwad v. Rachawwa and others, : [1971]2SCR691 , it was held that it is open to a court not to decide all the issues which may arise on the pleadings before it if it finds that the plaint on the face of it is barred by any law. If, however, final decision in any matter at issue between the parties is based by a court on its decisions on more than one point-each of which by itself would be sufficient for the. ultimate decision-the decision on each of these points operates at . rest judicata. They further purport to lay down that where there is a legal bar to the suit such as a notice, it would be the duty of the court to reject the plaint recording an order to that effect without embarking upon a trial of all the issues involved and such rejection would not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. If the court decides the various issues raised on the pleadings, the adjudication of the rights of the parties apart from the question as to the applicability of the said bar, operates as rest judicata in a subsequent suit where the identical questions arise for determination between the same parties. In Gulobchand Chhotalal Parikh v. State of Gujarat : [1965]2SCR547 , and Yoginder Pal v. Competent Authority, etc. (1970) 1 Delhi 892, it was held that the principle of rest judicata is not restricted to section 11 of the Cpc, but is applicable to proceedings which may not strictly be a suit in a civil court on the ground of public policy and as observed in Krishan Kumar v. Vimla Saigal 1976 Rlr 43, a landlord who fails earlier on the ground of personal requirement can file another petition on the same ground on change of circumstances. If the landlord's claim is genuine he cannot be denied relief. In this case, the decision on each of the issues was no doubt sufficient to dispose of the earlier proceedings, and the court did decide all of these, but based its final decision only on one of them that is the one relating to service of notice to terminate the tenancy. The decision on the remaining issues will not operate as resjudicata. That apart, the change in circumstances of the landlord gave him fresh grounds for eviction. Hence, the second petition is not hit by resjudicata. I, thereforee, also reject the contention that the present petition is barred the principles of resjudicata.

(6) Accordingly, I accept this petition, set aside the impugned order and pass an order of eviction in favor of the landlord and against the tenant. I direct that the tenant shall vacate the premises within a period of six months.


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