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Shahastrapal Sharma Vs. Horam and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 14 of 1972
Judge
Reported inILR1974Delhi35; 1973RLR266
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantShahastrapal Sharma
RespondentHoram and anr.
Advocates: S.S. Chadha,; V.D. Gaur and; O.P. Sharma, Advs
Cases ReferredRam Narain v. Lakshmi Dass Kundra
Excerpt:
.....accommodation for their own residence has been satisfied by the rooms obtained by them from nanak chand and shanti. on facts, thereforee, the landlords do not need any additional accommodation under clause (c) and the petition for eviction by them against the tenant appellant (not to speak of the petition for eviction against ram saran) must fail on this ground alone. lakshmi dass kundra, relied upon by the rent control tribunal does not say that even if the need of the landlord is satisfied during the pendency of the proceedings against the tenant but the landlord still persists in his claim against the tenant, them the claim of the landlord would still be bona fide. either 'they must use the rooms obtained from by nanak chand and shanti for their use and thus admit that their..........ram. the last two rooms which are the southernmost and open on the main road were occupied by nanak chand and shanti. the landlords filed petitions for eviction against all the tenants. their petition for eviction against ghasi ram has been finally dismissed. the petition for eviction against ram saran is pending. the petitions for eviction against nanak chand and shanti were also based on the ground that those rooms were required by the landlord respondent no. 1 for the occupation of himself and his family and that he had no other reasonably suitable accommodation to live in. these petitions were, thereforee, also obviously filed under clause (e) of the proviso to section 14(1). while the petition against the tenant appellant was pending nanak chand and shanti gave up the.....
Judgment:

V.S. Deshpande, J.

(1) Certam aspects of clause (e) of the proviso to section 14(1) of the Delhi Rent Control Act, 1958 arise for consideration in this appeal. Clause (e) of the proviso to section 14(1) is as follows:-

'14. (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favor of the landlord against a tenant:

'PROVIDED that the controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:- that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation.'

(2) The respondents (landlords) are the owners of a north-south longish building consisting of 6 rooms and 4 verandahs as shown in the plan Exhibit A.W. 4/1. Respondent No. 1 Horam himself occupies the northernmost room of 9' 4'x18', a verandah, kitchen and a shed all facing a open courtyard. The tenant appellant occupies the adjoining room to the South with a verandah. The room and the verandah further south is occupied by one Ram Saran while the room beyond to the south is occupied by one Ghasi Ram. The last two rooms which are the southernmost and open on the main road were occupied by Nanak Chand and Shanti. The landlords filed petitions for eviction against all the tenants. Their petition for eviction against Ghasi Ram has been finally dismissed. The petition for eviction against Ram Saran is pending. The petitions for eviction against Nanak Chand and Shanti were also based on the ground that those rooms were required by the landlord Respondent No. 1 for the occupation of himself and his family and that he had no other reasonably suitable accommodation to live in. These petitions were, thereforee, also obviously filed under clause (e) of the proviso to section 14(1). While the petition against the tenant appellant was pending Nanak Chand and Shanti gave up the possession of their rooms to the landlords by way of compromise and the landlords obtained orders for eviction against them. Instead of occupying the rooms vacated by Nanak Chand and Shanti for the residence of himself and his family, however, the landlord Respondent No. 1 converted those rooms into a shop for the use of his son. The londlord Respondent No. 1's case is that he wants the room occupied by the tenant appellant for the residence of himself, his wife, three sons, a daughter-in- law, three children of the married son and his brother who is the colandlord, namely, ten persons in all.

(3) The Controller dismissed the petition for eviction on the ground that the claim of the landlords was not bona fide for the following reasons, namely:-

(1)The status of the Respondent No. 1 was only that of a peon getting Rs. 200.00 per month as salary; (2) During the pendency of the proceedings. Respondent No. 1 got possession of two rooms from Nanak Chand and Shanti. He was bound to occupy them as his residence under section 19 of the Act. But he converted them into a shop. (3) In the notice given by the landlords to the tenant appellant on 26-8-1967 the landlords alleged that the tenant had promised to pay them rent of Rs. 24.00 per month though the contractual rent was actually Rs. 15.00per month which shows that the ulterior motive of the landlords was to try to get a higher rent from the tenant. To these reasons may be added the followings:- (4) The rent sent by money order for the period from 1-8-1967 to 31-12-1967 was refused by the landlords and the tenant had to deposit the same with the Rent Controller. (5) From 7-8-1968 the landlord withheld the water and electricity supplies of the tenant. On an application by the tenant under section 45 of the Act, the said supplies had to be restored by the landlords. (6) There were also criminal proceedings between the parties under section 107 Criminal Procedure Code.

(4) In the first appeal, however, the Rent Control Tribunal was of the view that the claim of the landlords for the eviction of the tenant appellant was not shown to be nwla fide. The reasoning of the Tribunal was as follows:-

(1)The landlord respondent No. 1 had a right to convert any portion of his property for the commercial use of his son. The decision of this Court in Ram Narain v. Lakshmi Dass Kundra 1971 R.C.R. 227 (^), was relied upon for this proposition. (2) The landlord Respondent No. 1 with a large family had only one room to live in. thereforee, the application for the eviction of the tenant appellant could not be said to be mala fide

(5) The Tribunal did not consider the other grounds mentioned above militating against the bona fides of the landlord. The Tribunal reversed the decision of the Controller and passed an order for eviction in favor of the landlords against the tenant appellant.

(6) In this second appeal by the tenant it was not disputed that if the landlords had only one room for the residence of themselves and their family then that room could not be considered to be sufficient for their residential accommodation. As the need of the landlord Respondent No. I includes the need of his family, not only the income of the landlord Respondent No. 1 which is to be Rs. 200.00 per month, but also the income of the co-landlord Respondent No. 2 and also the income of the son should also be taken into account. In all the income of Horam's family comes to Rs. 700.00 per month. It cannot be said that the family is of such a low status that they should be content with only one room to live in.

(7) The main round urged in this appeal by Shri S. S. Chadha is that the conduct of the landlord Respondent No. 1 in converting the two rooms obtained from Nanak Chand and Shanti into a shop during the very pendency of these proceedings shows that the landlord's claim against the tenant appellant was not bona fide. The only question for decision, thereforee, is-What is the effect of this conduct of the landlord Respondent No. 1 during the pendency of these proceedings on his claim for eviction against the tenant under clause (e)?

(8) One way to look at it is this : Under clause (e) the case of the landlords against Nanak Chand and Shanti was that those rooms were required by them for the use of themselves and their family as a residence. The fact that Respondent No. 1 used those very rooms after obtaining their possession for the purpose of a shop for his son instead of using them as residence of the family may show that the claim of the landlords against Nanak Chand and Shanti was not bona fide. They made a pretext before the Controller that they wanted those rooms for their residence but in fact they did not want them for their residence but preferred to use them as a shop. Shri 0. P. Sharma, learned counsel for the landlords, argues that it is only Nanak Chand and Shanti who could be aggrieved by this conduct of the landlords. But the present tenant cannot make a grievance of it. Shri Sharma says that under section 19(1), the landlords were prohibited from re-letting those rooms within three years from the date of obtaining their possession. They have not contravened section 19(1). Under section 19(2) it is only if the landlords did not occupy those rooms within two months from the date of obtaining their possession or if they re-let them to some other person then Nanak Chand and Shanti could have moved the Controller for getting back the possession of those rooms. He argues that the words in section 19(2) are only as follows:-

'WHEREa landlord recovers possession of any promises......... and the premises are not occupied by the landlord'

and points out that the premises are in fact occupied by the landlords. He argued that under section 19(2) it is not necessary that the landlords should occupy the premises for the purpose of residence only. It is sufficient if the landlords occupy the premises and do not let them out to anyone else. He further argued that the landlord Respondent No. I is the sole judge as to how he should use the premises obtained by him from the tenant Nanak Chand and Shanti.

(9) It is true that relief under section 19 against the landlords can be obtained only by Nanak Chand and Shanti, if at all, but not by the tenant appellant in the present case. But we are bound to consider the conduct of the landlords and its effect on the claim of the landlords in the present case. In Freddy Fernandes v. P. L. Mehra 1973 R.C.R. 53 (2), the case-law on the meaning of the expression bona fide as used in clause (e) was reviewed and it was held that the bona fides of the claim could be subjective only insofar as the landlord has the right to choose between alternative accommodations according to his convenience. If one of them is more convenient to him than the other, he is entitled to choose the one which is more convenient. But the extent of his need cannot be left to his fancy. It has to be reasonable in the circumstances of the case. In that sense the need has to be objectively judged. From the objective stand-point, thereforee, the landlords certainly needed additional accommodation as one room, verandah kitchen and shop were not sufficient accommodation for ten persons who constitute the family of the landlords. The mere fact that the landlords have so long managed to live only in one room does not mean that they should be condemned to' live only in one room perpetually. For reasons of economy, they may have chosen to undergo the trouble of living in one room for a long time. But it does not mean that the minds of the landlords are constituted any way differently from the normal human beings and that they desire to live only in one room and do not wish to have additional accommodation. thereforee, the need of the landlords for the additional accommodation is proved objectively. It cannot be said that the need did not exist initially because after getting possession of the rooms from Nanak Chand and Shanti the landlords used them for the purpose of a shop.

(10) But as the landlords have filed petitions for eviction against all the tenants and as only one of those petitions, namely, against Ghasi Ram has been finally dismissed, the landlords were apparently still chershing the hope of getting the possession of the rooms of the tenant appellant and Ram Saran for residence of themselves and their tamily. This must be the reason why Respondent No. 1 could afford to convert the rooms obtained from Nanak Chand and Shanti into a shop for his son. It may be that if the Respondent No. 1 did not have such a hope of obtaining the possession of two rooms of the tenant appellant and Ram Saran, then he may not have converted the rooms of Nanak Chand and Shanti into a shop. This Is the most charitable construction which can be put on his conduct. What then is the effect of it on his claim against the tenant appellant?

(11) It seems to me that this conduct of the landlords definitely shows that the two londlords and their family require only two additional rooms for their residence. This is also in accord with facts. The Respondent No. 1 and his wife with two younger sons can occupy one room. The landlord Respondent No. Vs eldest son, his wife and children can occupy the largest room while the third room can be occupied by the co-landlord. That the landlords and their family do not need any other accommodation is established by their own conduct. At best, they are hoping to get possession of the two rooms from the tenam appellant and Ram Saran. They have disabled themselves from using the rooms obtained from Nanak Chand and Shanti as their residence by converting them into a shop. They cannot, thereforee, use those rooms for residence. It must be concluded against them that their bona fide need under clause (e) is satisfied by only two additional rooms and that they do not need any further accommodation.

(12) The position, thereforee, is this: Before the proceedings against the tenant appellant and Ram Saran came to an end, the landlords have obtained possession of two additional rooms from Nank Chand and Shanti. According to the above finding, the need of the landlords for additional accommodation for their residence has thus been satisfied. Underclause (e) of the proviso to subsection (1) of section 14 the landlords had to aver that they needed additional accommodation for residence. Had such an averment not been made by the landlords, their petition under clause (e) could not have been maintainable. The landlords who secured possession of the residential premises of their tenant for their own residence would be bound to make good the representation made by them to the Controller because the Controller passes an order for eviction of the tenant only by believing this representation. It is in this background that we have to construe the opening words of section 19(2) which are as follows:-

'WHEREa landlord recovers possession of any premises as aforcsaid and the premises are not occupied by the land- lord.'

(13) The occupation of the premises by the landlord under section 19(2) is connected with clause (e) of the proviso to section 14(1). The order for eviction passed under clause (e) is the cause and the occupation under section 19(2) is the effect of that cause. The legislative policy is that a tenant of a residential premises is evicted only if the landlord wishes to use the same premises for his own residence. If it could be shown that the landlord did not want it for his residence but for a commercial purpose, then the petition for eviction would have been dismissed under clause (e). The words 'are not occupied by the landlords' in section 19(2) must, thereforee, , 'are not occupied by the landlord as a residence for himself or for any member of his family dependent on him or for any person for whose benefit the premises are held'. It is true that these words are in clause (e) but are not repeated in section 19(2). The reason obviously is that the occupation under section 19(2) refers only to premises obtained under clause (e). The occupation, thereforee, has to be for the same purpose for which the premises were obtained. I would, thereforee, be inclined to construe section 19(2) to mean that the premises have to be occupied by the landlord as a residence. This question is, however, not directly in issue in this case. The discussion of that question is relevant only to understand the conduct of the landlords and its effect on the claim of the landlords against the appellant tenant. So understood, the landlords were bound to occupy the rooms of Nanak Chand and Shanti as a residence for themselves and their family. Once this is done, the claim of the landlords under clause (e) is satisfied. It is apparent that the landlords do not need any other additional accommodation. On this ground alone, thereforee, it is clear that the landlords do not need the accommodation now in the possession of the tenant appellant.

(14) The conclusion, thereforee, is two-fold. Firstly, the need of the landlords and their family for additional accommodation for their own residence has been satisfied by the rooms obtained by them from Nanak Chand and Shanti. On facts, thereforee, the landlords do not need any additional accommodation under clause (c) and the petition for eviction by them against the tenant appellant (not to speak of the petition for eviction against Ram Saran) must fail on this ground alone. Secondly, the landlords cannot be allowed to say that the rooms of Nanak Chand and Shanti were not available to them for residence inasmuch as they have themselves converted them into shop. Such a stand would not be bona fide. The need of the landlords under clause (e) has to be bona fide. The decision in Ram Narain v. Lakshmi Dass Kundra, relied upon by the Rent Control Tribunal does not say that even if the need of the landlord is satisfied during the pendency of the proceedings against the tenant but the landlord still persists in his claim against the tenant, them the claim of the landlord would still be bona fide. The facts of that case are entirely different. The landlord lived on the first floor and wanted the additional accommodation from the tenant on the first floor. The ground floor was used for commercial purposes. The landlord was not bound to convert the accommodation on ground floor into residential purpose but was justified in wanting the residential accommodation on the first floor adjoining his own accommodation for a residence. The present is not such a case. It is because the landlords have now tried to show to this Court that they still need additional accommodation for residence that their claim becomes mala fide. Their claim ceases to be bona fide only after they obtained the rooms from Nanak Chand and Shanti. Till then it was bona fide. The effect of subsequent events can be taken into account by the Court in granting the appropriate relief on the analogy of the principle embodied in Order Vii rule 7 Civil Procedure Code particularly when justice requires this to be done and the facts are not in dispute. The obtaining of the possession of the rooms from Nanak Chand and Shanti by the landlords was taken into consideration by the Controller and no dispute was raised by the landlords that this fact should not be taken into consideration.

(15) It was also taken into consideration by the Rent Control Tribunal. No surprise is, thereforee, caused to the landlords by the fact being considered in the second appeal also. The landlords cannot escape the dilemma which is this: Either 'they must use the rooms obtained from by Nanak Chand and Shanti for their use and thus admit that their need under clause (e) is fully satisfied or they must face the consequence that their claim for the room of the tenant appellant is mala fide because they have by their own action disabled themselves from using the rooms of Nanak Chand and Shanti for the purposes of their residence contrary to section 19(2) of the Act. They must accept either the one or the other alternatives. They cannot have it both ways.

(16) For the above reasons, the tenant's appeal is allowed, the order of the Rent Control Tribunal is set aside and that of the Controller is restored. The costs of the second appeal to be borne by the parties as incurred.


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