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SaIn Dassberry Vs. Madan Lal Puri - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 110D of 1966
Judge
Reported in7(1971)DLT392
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantSaIn Dassberry
RespondentMadan Lal Puri
Advocates: A.N. Monga and; K.P. Kapur, Advs
Cases ReferredSubhadran Devi v. Sunder Dass.
Excerpt:
.....motive or collateral purpose and not inspired by mere fanciful whim - demand of landlord becomes bonafide - appeal allowed. - - knowing full well the needs of these two children, the appellant had let out the premises to the respondent. in plain language 'bona fide' means good faith sincerity of purpose or the absence of any desire to deceive or derive an undue advantage. 'to impose on the landlord an obligation to decide fina1ly three months prior to his date of retirement whether or not he would be shifting and living in his own house three months later, and if he was so desirous then of declining to lease the vacant portion of his house is to read in the statutory provisions more than what is clearly disenable therein. ' it is, thereforee, not possible to hold that the landlord..........the letting of the premises to the respondent and the filing of the ejectment application. the learned tribunal also noticed that the son was studying in the college and the daughter was about to complete her m b. b.s. course as a lady doctor. knowing full well the needs of these two children, the appellant had let out the premises to the respondent. the learned tribunal felt reluctant, thereforee, to force on the landlord more comfortable and liberal standards of living, which he himself was not prepared to adopt. the requirements of the appellant's other married son, who was living with him were ignored, as he was considered to be in a position to set up an independent home it was under these circumstances that the appeal was dismissed with costs. the appellant-landlord has come up.....
Judgment:

P.N. Khana, J.

(1) This second appeal is directed against the judgment dated January 25, 1966 of the learned Rent Control Tribunal, who dismissing the landlord's appeal, affirmed the judgment of the' Controller whereby he had dismissed the eviction application of the landlord against the respondent-tenant

(2) The appellant-landlord is the owner of a house situated in New Rajinder Nagar. Naw Delhi, and is in occupation of three living rooms, besides, kitchen, store, bath and latrine on its ground floor with two courtyards on both sides. The respondent-tenant has been in occupation of the first floor consisting of three rooms, two verandahs, kitchen, latrine and bath and the barsati of the said house, at Rs. 260.00 per month as rent, with effect from January 22, 1964. On November 26. 1964, the appellant-landlord filed a petition for the respondent's eviction under clause (b) and (c) of the proviso to section 14 of the Delhi Rent Control Act on the allegations that the required bona fide the premises in suit for occupation as a residence for himself and his family members; and that the respondent-tenant had sublet a part of the premises without his consent. The tenant denied the appellant's allegations and contended the petition. The learned Controller found that the land-lord-appellant was it possession of the whole house on January 22, 1S64. when he let out the portion in dispute to the respondent. He must have at that time anticipated his requirements for a further period of six months. The finding of the eviction petitioner after about eleven months on November 26, 1964 itself was a clear indication that he did not, in fact require the premises and his allegations lacked bona fides. The appellant's son was earning Rs. 325.00 per month; and the son's wife was earning Rs. 225.00, per month. The learned Controller, thereforee, refused to believe that the son was dependent on the landlord, as with that much of income he could easily set up a small home of his own. The second son was employed in Calcutta, while the third son was working in Nahan. The fourth son, who was studying in some College, lived with him, while his daughter was in some boarding bouse. He, thereforee, held that the appellant's claim was not genuine and bona fide Subletting by the respondent-tenant was also held not substantiated. It was under these circumstances that the petition was dismissed

(3) In appeal, the learned Rent Control Tribunal concurred with the reasons given in the judgment of the Controller, and observed that there had been three letting by the appellant during the last few years. With each letting the appellant had secured an increase in rent. The respondent's counsel had stated at the Bar that there had been a further increase in the prevailing rents during the period that elapsed between the letting of the premises to the respondent and the filing of the ejectment application. The learned Tribunal also noticed that the son was studying in the College and the daughter was about to complete her M B. B.S. course as a lady doctor. Knowing full well the needs of these two children, the appellant had let out the premises to the respondent. The learned Tribunal felt reluctant, thereforee, to force on the landlord more comfortable and liberal standards of living, which he himself was not prepared to adopt. The requirements of the appellant's other married son, who was living with him were ignored, as he was considered to be in a position to set up an independent home It was under these circumstances that the appeal was dismissed with costs. The appellant-landlord has come up in second appeal to this court.

(4) When the appeal came up for hearing for the first time, the learned counsel for the parties made a statement that the Tribunal had not given a finding on the question whether the premises with the landlord were reasonably suitable for his residence within the meaning of section 14(1)(e) of the Delhi Rent Control Act, 1958. They, thereforee, made a joint request that the case be remanded to the Tribunal for a finding on this question alone on the evidence already on record. It was under these circumstances that the learned Judge remanded the case back to the Tribunal. According to the Tribunal's report after remand the landlord was in possession of three rooms two measuring 10X12 each and the third measuring 10'.3'X6' 9' besides a pantry, store, bath, latrine and open courtyards on both side'. The third room on the back side was small and was considered just sufficient for being used as a dining room. Out of the remaining two rooms, one was required by the landlord for being used as a drawing room. The landlord was thus left with only onr room which was considered insufficient for the entire family. The learned Tribunal considered that the married son with his family needed a separate room for himself. It was under these circumstances that the existing accommodation with the landlord was considered not reasonably sufficient for him.

(5) The learned counsel for the respondent contended at the outset, that the appeal did not involve any substantial question of law and, thereforee did not lie The question of the bona fides of the landlord when he stated that he required the premises for occupation as a residence for himself and for the members of bids family, was, according to him, a question of fact, the finding on which by the Tribunal, was conclusive. In Smt. Ram Kali v. Vijay Gopal Srivastava a similar argument was addressed on behalf of the respondent-tenant. Adopting the observations of the Supreme Court in Smt. Kamla Soni v. Roop Lal Mehra it was held that the determination of the requirements of the landlord as bona fide within the meaning of section 14(1)(e) of Act, on the facts proved, was not a finding purely of fact. It was a mixed question of law and fact. The Supreme Court had held that an inference that the requirement of the landlord in a given case was bona fide could not be regarded as conclusive. In other words, the High Court could interfere in a finding based on such inference It was observed in Smt. Ram Kali's case (supra):-'It has, thereforee, to be seen whether the finding that the petition of the appellant is male fide, is based on any proved facts and if the finding is based on irrelevant or no evidence, (hen certainly it is case, where the tribunal has grossly erred in its conclusion. And then ; the question would be whether the conclusion drawn from the evidence is justified, especially in the light of numerous decisions on the subject If the conclusion is not so justified, it would amount to a substantial error of law.' The inference drawn from proved facts by the learned Tribunal in the present case that the requirement of the appellant was not bona tide, thereforee, could not be regarded as conclusive. More so. when the facts of the case are examined in the light of the findings of the learned Tribunal in its report after remand referred to above.

(6) The learned counsel for the respondent then raised the same three contentions on the basis of which the learned Rent Control Tribunal had declined to grant the appellant's prayer, viz. that the landlord-appellant could have easily anticipated his requirements ten or eleven months before the filing of his eviction petition, that on previous occasions after every vacation of the premises by a tenant the same had been let out at an increased rent; and that the needs of the married son of the appellant, who was having an independent income could not be taken into consideration, while considering the bona fide requirements of the appellant-landlord. The ground of subletting was not agitated.

(7) The bona fides of the landlord in regard to his requirements for the disputed premises, have, thereforee, to be determined. The word 'bona file' has come up for consideration in number of cases and the courts have repeatedly expressed their views in the nutter. No hard and fast rules can be laid end every case has to be adjudged on its own merits. Broad principles car, however, be gathered from the numerous decided cases. In plain language 'bona fide' means good faith sincerity of purpose or the absence of any desire to deceive or derive an undue advantage. If the demand of the landlord conveys an impression of sincerity and ab?ence of any oblique motive or collateral purpose, and cannot be said to be inspired by a mere fanciful whim, it has to be regarded as bona fide. The facts of the present case, thereforee, have to be examined in the light of these general principles.

(8) The first contention of the respondent's learned counsel cannot be accented, as there is nothing in law, which requires the landlord to finally decide about his requirements at the time when he lets out any accommodation to a tenant. His requirements may change from time to time He may not be clever enough to anticipate things. His inability to do so cannot deprive him of his rights, which he derives under the Act. Reference may be made in this connection to Inder Sain Seengal v. J. E. Compose, where it was observed: 'to impose on the landlord an obligation to decide fina1ly three months prior to his date of retirement whether or not he would be shifting and living in his own house three months later, and if he was so desirous then of declining to lease the vacant portion of his house is to read in the statutory provisions more than what is clearly disenable therein.' It is, thereforee, not possible to hold that the landlord must anticipate his needs at the time when the lets out any accommodation to a tenant and that his failure to do so would render his subsequent demand for eviction of his tenant main fide

(9) The second contention of the respondent is equally devoid of force. Merely letting out some time in the pa at, accommodation, which fell vacant then, mae at an increased rent. can be no ground for holding that be is likely to let out the accommodation which would now fall vacant, if his demand for eviction is accepted. In this case, there is no evidence to show that there has been an increase in the rent from the date when the premises were let to the respondent-tenant, up to the date when the eviction petition was filed. The manner in which the learned Tribunal reached its conclusions of a far reaching character on a bare assertion at the Bar by the respondent's counsel, cannot be appreciated. Lettings in the past cannot always afford a ground for doubting the bona fides of the landlord when he claims eviction of a tenant.

(10) Regarding the needs of the married son, the approach of the learned Rent Control Tribunal in the judgment under appeal, is quite erroneous. It is established in this case that the married son Along with his family has been living with his father, the landlord, from the very beginning. His needs are not being stressed now in order just to provide a sort of screen of bona fide requirements to cover an oblique motive or some other collateral purposes In Jai Gopal v. Ramesh Lal. decided on February 5, 1970 while interpreting the phrase a residence for himself occurring in clause (e) of the proviso to section 14(1) of the Act, I had the occasion to observe that it 'cannot mean a residence for the landlord living in isolation. 'Himself' has to be interpreted as a reference to a person living with his family with whom he is normally accustomed to live. Merely because the wife of the landlord in a given case is, earning her independent having and, thereforee, is not dependent on him, cannot mean that while considering the needs of the landlord the needs of his wife have to be ignored. Likewise the needs of the adult independent son, who normally is accustomed to live with his father, cannot be ignored, when considering the needs of the father. The words 'for himself' have to be interpreted to mean 'for himself as living along with his family members, with whom he is normally accustomed to live.' This interpretation has to be adopted when there is nothing to 'cast any doubt on the bona fides of the landlord, when he makes such a claim. The phrase 'or for any member of his family dependent on him', occurring in the clause is designed to meet an altogether different objective. If the landlord himself is not to reside in the premises, as for instance, when he lives outside Delhi, he still is entitled to claim ejectment of his tenant, if the premises are required ''for any member of his family dependent on him or 'for whose benefit the premises are held'. Ejectment in such a case may not be claimed, if the requirement is for a family member, who is not dependent on the landlord; or the premises are not being held for fits benefit. But in this case, when the premises are required by the landlord as a residence for himself then the needs of his wife and other family members cannot be ignored, if normally he is accustomed to reside in their company even if they are not dependent on him. Another way of looking at this very problem would be to recognise that there is nothing to prevent the landlord from giving free accommodation to his near and dear ones who may normally be accustomed to live with him even though they may not be otherwise dependent on him. The right of the appellant, in the present case, to provide accommodation to members old his family, who are not dependent on him, but who normally reside with him cannot be questioned. If the accommodation, now available with the appellant is sufficient for his son, son's wife and child his two minor children and his wife, then he still needs an extra room for himself. In order to satisfy this needs of his, he can either turn out his son or seek eviction of the tenant occupying the adjoining room. His benefits cannot be challenged if he prefers to retain the company of his son and seeks the ejectment of the respondent Instead.' The above view finds further support from a number of decided cases vide. T. C. Rekki v. Usim Gajral P.D. Sharma v. Ram Lubhaya. J.L. Mehta v. Smt. Hira Devi.

(11) Apart from the married son, and the unmarried son, both of whom are living with the appellant, he has two sons, who at present work outside Delhi and a married daughter who lives with her husband. They would, however, visit the appellant off and on; and the appellant would be in need of some accommodation to provide, temporary shelter for them. This again would be a bona fide need. For looking to the needs of the landlord, he is to be taken as a social being. He cannot refuse shelter to his own sons living outside Delhi, or his daughter when they are visiting him at times. If one or two rooms already with the appellant are just sufficient for his own'needs and needs of the sons, who are presently living with him, he still may need some more accommodation for the use of any of his other children when they visit him. It was held in Subhadran Devi v. Sunder Dass. 'And then social customs, conventions, and habits, usages and practices of the society and other similar considerations also cannot be completely ignored as irrelevant while determining the question of requirement of the landlord. The learned appellate authority was. In my opinion, not justified in taking a purely legalistic view that if the married daughter or her children do frequently come to stay with her widowed mother because of her old age and illness, then this factor cannot be taken into account for considering the bona fide requirement of the owners. I respectfully agree with the above reasoning, which appears to be in consonance with the objects of the Act. The Tribunal in its report after remand had mentioned that the appellant was 61 years of age in March, 1965. He would now be 66 years old. He would, thereforee, require as an old man, somebody to look after him. Taking this view also, the requirement of his married son living with him, is almost essential and, thereforee, genuine. If, thereforee, the present accommodation with the landlord is not sufficient, his desire to have extra accommodation, which is occupied by the respondent-tenant, cannot be said to be malafide. The challenge to his town fides, thereforee, has no substance and it must be held that the requirements of the landlord for the accommodation in dispute for the purpose of his occupation and the occupation of the members of his family is genuine and bona fide.

(12) The learned counsel for the respondent then referred to his two applications, the first dated 2nd September. 1970, being C. M. 1274- J of 1970. under Order 7 Rule 11, and section 151, Code of Civil Procedure, praying that the appeal of the landlord-appellant be dismissed with costs, on the allegation that during the pendency of the appeal, the appellant filed another eviction petition against the respondent on the ground of personal bona fide requirement, after issuing notice to him under section 106, Transfer of Property Act, alleging therein that the respondent was a tenant and that his tenancy was being terminated by the said notice with effect from December 31, 1967 ; and the second, dated October 6, 1970. being Cm 1269-J of 1970. under Order 6 Rule 17, read with section 151, Code of Civil Procedure, for amending the written statement, by adding the allegation that the tenancy still subsisted and had not been terminated as no notice of termination was served on the tenant. It will be noticed that the eviction application was filed on November 26, 1964 wherein it was stated on behalf of the landlord that no notice was required to be given. In his answer, it was pleaded by the respondent-tenant, that this needed no reply. It was thereforee, the admitted case of the parties at that time that no notice was required. It was on that basis that the litigation was fought between the parties for several years. The present second appeal was filed on May 27, 1966. The notice which was sent on behalf of the appellant-landlord is dated December 7, 1967. The second eviction petition was filed somewhere in 1968 on an entirely different cause of action. The said petition has been dismissed. But the parties never took the said notice or the second eviction proceedings, as having any effect on the present appeal. On March 26, 1970, when this appeal came up for hearing for the first time, the counsel for the respondent did not raise any objection about the tenancy having not been terminated of it having been revived as a result of the notice dated December 7, 1967. On the other hand, both the counsel made a statement in court that the case be remanded to the Rent Control Tribunal for determining the question, which they said had been left undecided by the Rent Control Tribunal. This clearly shows that the parties did not think that the notice dated December 7, 1967 had in any way effected any change in the rights of the parties. The fact the landlord-appellant continued with unbitted keenness, the prosecution of the present appeal with regard to ejectment of the respondent-tenant, irrespective of the notice in question and the further fact of the respondent not having ever raised an objection, clearly establishes that the tenancy was neither revived nor was the stand of the parties that no notice was required for the termination of the tenancy, changed. It may further be noticed that even if the said notice, as a subsequent event, could be said to have revived the tenancy, which in any case, it did not do, it definitely, terminated the tenancy so revived, by its very language. The said notice, thereforee, has not brought about any change in the situation. No purpose, thereforee, would be served in allowing the amendment, which the respondent seeks to introduce. It is an accepted principle that the courts would not allow a futile amendment, which would serve no purpose what so ever. Both the applications thereforee, have no merits and are dismissed.

(13) This appeal, in the result, succeeds. The orders of the Tribunal and of the Controller cannot be maintained and the same are set aside. An order for the recovery of possession of the premises in dispute is made in favor of the appellant landlord against the respondent tenant. The appellant shall, however, not be entitled to recover possession thereof, before the expiration of a period of six months from the date of this order. The respondent shall also bear the appellant's costs.


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