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Man Mohan Mehra Vs. J.S. Butalia - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 268 of 1983
Judge
Reported inAIR1984Delhi32; 24(1983)DLT165; 1983(5)DRJ317; 1983RLR711
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantMan Mohan Mehra
RespondentJ.S. Butalia
Advocates: R.K. Makhija,; Alok Kumar,; S. Pappu and;
Cases ReferredJag Dutta v. Smt. Savitri Devi
Excerpt:
.....of his family dependent upon him for residence. it was urged on behalf of the petitioner that the eviction application was liable to rejection because out of the necessary ingredients required to be alleged and proved, the landlord failed to allege that (1) letting purpose was residence only and (2) that he had no other reasonably suitable residential accommodation. i observed that it clearly meant that the premises were let out for residential purpose and further that the very fact that the present premises were not sufficient for all the members of the family implied that other accommodation was really not available. i held that there was thus sufficient compliance of the requirements of section 14(1)(e). the tenant had sufficient notice of the case set up by the landlady and both the..........obtained loans and had to let out the premises to repay the loan. his landlord however, filed an eviction application in 1976 in which eviction order was passed in 1978 and an undertaking to vacate was given by sh.butalia in the appeal. he vacated the jangpura house in 197) in compliance with the undertaking to the court and occupied the first floor of his owa house which has two bed rooms and a living room etc. the ground floor of the house consisted of one dining cum drawing room and three bed rooms, one kitchen, etc. the ground floor had been let out to the present tenant sh. m.m. mehra with effect from 1/8/1977 at the monthly rent of rs. 1,400.00 without any written agreement or rent note. on 12/5/1981 sh. butalia filed this eviction application under section 25b read with clause.....
Judgment:

M.L. Jain, J.

(1) Sh. J.S. Butalia constructed a house in 1975 in Gulmohar Park, while residing in a rented premises in Jangpura He and his wife both had obtained loans and had to let out the premises to repay the loan. His landlord however, filed an eviction application in 1976 in which eviction order was passed in 1978 and an undertaking to vacate was given by Sh.Butalia in the appeal. He vacated the Jangpura house in 197) in compliance with the undertaking to the court and occupied the first floor of his owa house which has two bed rooms and a living room etc. The ground floor of the house consisted of one dining cum drawing room and three bed rooms, one kitchen, etc. The ground floor had been let out to the present tenant Sh. M.M. Mehra with effect from 1/8/1977 at the monthly rent of Rs. 1,400.00 without any written agreement or rent note. On 12/5/1981 Sh. Butalia filed this eviction application under Section 25B read with clause (e) of the proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act 1958, (the Act) against Sh. Mehra. The tenant filed an affidavit for leave to defend on 29/6/1981. Leave was refused by the Additional Controller on 22/9/1981. The High Court dismissed his revision on 1 1/2/1982. The Supreme Court on 24/3/1982 allowed his Special Leave Petition and granted him leave to defend the suit. He then filed his written statement on 5/4/1982, replication was filed by the landlord on 20/4/1982. The Additional Controller by his order dated 16/12/1982 allowed the application and passed an order for recovery of possession in favor of the landlord. Hence, this revision petition by the tenant.

(2) The ground on which the eviction was sought were stated at rather too great a length. But the main features are that the premises in question were purely residential, were built as such. were located in residential area, were in use for residential purposes alone and eviction was sought for residential purposes alone. The family of the landlord comprised of himself, his wife, and four adult children and an old mother who is since then dead. By occupation, the landlord is the Chief Sub-Editor of the Times of India. He suffered an attack of angina in March, 1976 and heart attack in September, 1978 and has been advised not to climb stairs. His wife Smt. Subhadra Butalia is a lecturer in English in a Delhi University College and works as a free-lance journalist. She is a well known social worker and runs a counselling service for women. She has been suffering from chronic asthma for the last so many years and climbing stairs makes here breathless and triggers off an attack of asthma. Daughter Bela who was then researching in Rome and was likely to return and prepare her thesis has now returned in March, 1982. The second daughter Urvashi is also employed in the University of Delhi and is the Head of the Department of Book Publishing in College of Vocational Studies. The first son Pankaj Butalia is employed in the Department of Economics in Shri Ram College of Commerce, as a lecturer and is required to do Ph. D. He is also a free lance journalist. The second son Rahul Butalia is a Management Officer in the State Bank of India. He has to clear certain examinations for future promotions. In view of their occupations each one of the members needs a separate study-cum-bed room. That apart, the family needs space for about 4000 books and three typewriters. They also require a dining-cum-living room The family members shown above are dependent on the landlord for their accommodation. The present accommodation on the first floor is not suitable to the health of the petitioner and it is inadequate to the needs of the landlord and his family. The premises on the ground floor are, thereforee, required bona fide for his own and family's residential accommodation.

(3) In the written statement, the tenant said that the application is liable to be rejected as the premises were not let for purposes of residence alone, nor was it pleaded in the application that these were so let. The landlord has also not pleaded that he had no other suitable residential accommodation available. He also disputed that the petitioner was the owner of the disputed premises. He contended that the landlord was only a lessee of the Co-Operative House Building Society. The purposes for which the premises are required are (1) opening of a study room, (2) opening of a counselling cell and (3) establishing a study-cum library of 4000 books. None of these purposes and the purpose of practicing the profession of journalism is a residential purpose. These are all non-residential purposes. He also stated that the alleged illness of the landlord and his wife was a hoax. The members of the family are independent of each other and they are all not residing with the landlord. The petitioner has been demanding increase of rent under the threat of eviction. The landlord was under the threat of eviction and vet he rented out the premises in dispute on 1/8/1977 and has thereafter been living happily from 979 with his family in the first floor. The tenant was using the premises both for residential and commercial purposes. One room was specially fitted and exclusively used for office purposes. He is carrying on his activities as sales agent and representative of several national multinational companies for the sale of their goods to the Government of India, the Stc and other government organisations. The landlord has assured the tenant not to disturb him even if he had to vacate the Jangpura house and is, thereforee, estopped from filing the application for eviction. The application is fanciful and made mala fide. The landlord has been demanding increase of rent. The purpose of eviction is to have an increased rent.

(4) In his replication, the landlord traversed all the allegations in the written statement and stated that the objection as to pleadings cannot be raised in the application for leave to defend. He denied that the premises were not let for the purpose of residence. The premises were let out as such. He also denied that the other members of the family are independent of him. He also alleged that he had no other suitable residential accommodation available for them. He is the owner as he holds a perpetual sub-lease in his name. The terms of the perpetual sub-lease specifically bars the user of the premises other than the residential. He denied that the tenant was using the premises for commercial office. He denied the allegations of mala fides. He denied that he has been demanding increase of rent. He denied that the tenant was ever assured that he would not be disturbed. The house was let out for a short duration and at the time of letting, it was specifically made clear to the tenant that the landlord was in heavy financial debts and had no option but to let out the premises for a short period. The tenant had earlier taken a stand in the High Court that the premises were let out for five years. Now the stand taken by him is that the landlord had assured him that he will not be disturbed. Both the stands were false. He also added that the financial position, of the landlord has improved, while his health and the health of the wife had further deteriorated.

(5) The learned Additional Controller held that no doubt the landlord did not do so in specific words, but has by implication pleaded that the premises were let out for residential purposes. The parties have led evidence on this issue, but the tenant has failed to prove that the purpose of letting was residential-cum-commercial or that he had set up an office room in the premises or that there were commercial offices in the locality. Rather, he got a non-business telephone. The application cannot be dismissed, thereforee, on the ground that there is no pleading of letting purpose. The learned Additional Controller found that the landlord had shown the strength of his family and had clearly said that the accommodation available to them at present falls extremely short of their requirement, and the petition can, thereforee, also not fail on the ground that there is no specific averment that the landlord or his other family members did not have any suitable residential accommodation. As to ownership, he held that it had been proved that the landlord along with his wife is the owner of the disputed property.

(6) As regards bona fides, the learned Additional Controller held that the tenant failed to produce any evidence to support the allegation that one of his sons was residing in defense Colony and one of his daughters was residing in Anand Lok. The strength of the family is indisputably of six members and the present accommodation was not sufficient. It has been proved that the petitioner was a heart patient and that climbing up would subject him to strain. The tenant failed to show that the landlord had any other reasonably suitable residential accommodation available to him. The Additional Controller held that the landlord required the premises in question bona fide for his residence as well as residence of the members of his family dependent upon him for residence.

(7) I have heard the counsel and examined the record. It was urged on behalf of the petitioner that the eviction application was liable to rejection because out of the necessary ingredients required to be alleged and proved, the landlord failed to allege that (1) letting purpose was residence only and (2) that he had no other reasonably suitable residential accommodation. The petitioner relied upon Abdul Hamid and another v. Nur Mohammad, : AIR1976Delhi328 . It was held in that decision that without making necessary allegations such as are laid down in Section 14(1)(e) of the Act there will be no jurisdiction for the Controller to order eviction. In Battoo Mal v Rameshwar Nath, 2nd (1970) Delhi 748 at 766, it was observed that the scheme of the various provisions of Section 14(1) is to set out the different causes of action which arose in favor of a landlord for filing an eviction application against the tenant. InDr (Mrs.) N.D- Khannav. M/s. Hindustai Industrial Corporatin, New Delhi, : AIR1981Delhi305 , and Mr. Edwin Barve v. Hari Chand 1982 (1) Rcr 172 it was further held that (1) though replication may be a part of the pleadings the facts constituting the cause of action must be pleaded only in the application (2) where the application omits to state any one of the ingredients of Section 14(1)(e) of the Act, the application shall be rejected in view of the mandatory nature of the provisions of Order 7 Rule I and Ii of the Civil Procedure Code ; and (3) omission to do so cannot be allowed to be supplied by way of amendment under Order 6 Rule 17 Civil Procedure Code. In N.D. Khanna (supra) an objection was taken in the written statement that eviction application omitted to plead that the landlord had no other reasonably suitable residential accommodation. The Addl. Controller upheld the objection and dismissed the application. The High Court maintained the dismissal In Mr Edwin Brave (supra) it was not pleaded that the premises were let for residential purposes. What was pleaded was that the premises were residential and that the tenant was residing in the premises. An objection was raised in the affidavit filed for leave to contest that there was no allegation that the premises were let for residential purposes. The objection was upheld in the High Court and the eviction application was rejected. The pleadings in this case before me were exactly similar to those in N.D. Khanna and Edwin Brave (supra). But these are cases which have adopted a hard line while there are other cases too which have taken a liberal line ln Gllrdial Nagdev v. Devi Bai 1979 (1) RCR 119, the landlady mentioned that the premises let out to the respondent were residential and were being used by the respondent for residential purposes. I observed that it clearly meant that the premises were let out for residential purpose and further that the very fact that the present premises were not sufficient for all the members of the family implied that other accommodation was really not available. I held that there was thus sufficient compliance of the requirements of Section 14(1)(e). The tenant had sufficient notice of the case set up by the landlady and both the parties knew well the points of controversy between them and no one was taken by surprise. I stuck to this view in Shri Ram Gopal v. Shri Washeshwar Nath 1979 Dlt 215. There the petitioner had failed to allege that he had no other reasonably suitable residential accommodation. I held that this averment was implied under Clause (e) under which the application was moved. I got my light from Rattan La! v. Vardesh Chander 1976 Rcr 355 wherein the Supreme Court had observed that having regard to comparative informality of these proceedings and the quasi-judicial nature of the whole process, such an omission cannot be exaggerated into a lethal informity. In Dr.Hans Raj Dawar and another v. Shyam Kishore 1977 (2) Rlr 253, it was rightly said by B.C. Misra J. that authority of Abdul Hamid (supra) had been shaken by Rattan Lal (supra) and I agreed with him but Avadh Behari J. in Hari Mohan Nehru v. Rameshwar Dayal : AIR1980Delhi291 , disagreed and thought that all rules of the game have not been thrown to the winds. Rules of pleadings have not been relaxed, if not tightended. Out of the two divergent views I am still inclined to agree with Mishra J. as I did in Gurdial (supra) and Ram Gopal (supra). How I wish the counsel appearing before Avadh Behari J. had cited these two cases. In Raj Bahadur and others v. smt. Sushila Devi Nigam and others 1981 (2) Rcj 20, the landlady did not plead the requirement of her family and the existing accommodation available to her. It was urged that the application did not disclose any cause of action and the application ought to be rejected under Order 7 Rule 11 Civil Procedure Code. The learned Judge observed that the objection cannot be allowed at the stage of the second appeal. If the objection had been taken in the written statement the landlady would have cured the defect. He further noticed that from the written statement and the rejoinder the available accommodation and the family members were made known to the appellants. Both the parties were in the know of the real facts sought to be proved in the case. Although the landlady did not plead the existing accommodation available to her, yet the tenants in their written statement pleaded the accommodation available with her which fact was not denied by the landlady. In view of these facts, it was not held that the eviction application was liable to be rejected under Order 7 Rule Ii Civil Procedure Code. In V.B. Raju v. R.L. Mahindroo 1982 Rlr 650, an objection taken in the application for leave to defend that one of the essential ingredients for obtaining the orders of eviction has not been pleaded. The landlord was allowed to amend the application. Yogeshwar Dayal, J. held that the amendment was rightly allowed. He.also observed that Dr. (Mrs.) N.D. Khanna (supra is no precedent for saying that the Controllers have no power to permit amendment of the pleadings if they are bona fide applied for. The reason is that considerations of form cannot over-ride the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it, if it is satisfactorily proved by evidence : Bhagwati Prasad v. Chandramaul, : [1966]2SCR286 . In Siddik Mohammed Shah v. Mt.Saran and others , it was observed that on amount of evidence can be looked into upon a plea which was never put forward. In M.S. Trojan and Co. v. R.M.N.N. Nagappa Chettiar, : [1953]4SCR789 , it was held that the decision cannot be passed on grounds outside the pleadings and it is a case pleaded that has to be found. However, in Nagubai Ammal and others v. B. Shama Rao, : [1956]1SCR451 , Venkatarama Ayyar, J. qualified the rule approved by the Privy Council. He said that it has no application where the parties lead evidence and go to trial with knowledge of the issues involved. Yogeshwar Dayal J. in Brig. Prilam Pal Singh v. V.P. Roman 1982 (2) Rcr 227 has again said that the tests are that the parties in spite of something missing in pleadings go to trial with full knowledge of the issues involved and both the parties lead evidence in that behalf and there is no prejudice caused to either party, it would not prove fatal to the case.

(8) So, there are cases which will, for want of statement of all components of a ground, reject an application for eviction under Order 7 Rule 11 Cpc and will not permit and amendment while there are others which will not do so and permit remedial steps. What then should one do A precedent which is a persuasive model presents no problems. The one that usually emanates from superior courts, be it erroneous, commands complete submission. But one can depart from the one that is not of an absolute authority and is contrary to the law or reason, and has not, by sheer antiquity, gained a permanent foothold : consult Salmond, Jurisprudence Chapter IX-Precedents. Past is entitled to reverence but it is better to be right in the end than to be otherwise for ever. Judicial discipline should not be allowed to degenerate into tyranny, decorum into slavery, and certainty into rigidity. Discipline is desirable, but sometimes a certain amount of valour is demanded. The law reports reveal that a simple law of control of rents and eviction has developed a myriad of technicalities and even decision on facts have acquired a look of law. It has become ;-

'That wilderness of single instances, Through which a few, by wit or fortune led, May beat a pathway out to wealth and fame.' ... Tennyson.

The decisions which stand in stern stance are recent and thereforee, principle and not paradigm should control my course. I had in, Smt. Sheet Utpal v. Hari Chand 1979 Rlr 345, cast doubt upon the view that grounds of eviction are causes of action. The grounds of eviction do not constitute a necessary part of cause of action for eviction of a tenant. It is a mere procedural disability that is cast, not a substantive cause of action that is created : Qudrat Utpal v. Municipal Board, Bareilly, : [1974]2SCR530 . Nor do the grounds or for that matter the causes of action, confer jurisdiction on the Controller. The Controller is a forum of exclusive jurisdiction created by a special statute to regulate some of the relations between a landlord and a tenant, in relation to a building to which the Act applies. thereforee, it is the subject matter of dispute between them, to say differently, it is the nature of the action that determines the jurisdiction of the Controller. In these cases even the notice of termination is not a part of the cause of action because it is simply not necessary. The action of landlord in instituting the proceedings for eviction itself tantamounts to an expression of an intention that he does not want the tenant, to continue and the jural relationship of Lesser and lessee comes to an end only on the passing of an order of eviction : see V.D. Chettar v. Y. Ammal 1979 Rlr 472. In many similar laws, the civil courts deal with such matters But in the Act, only the Controller is empowered. His jurisdiction is fixed in the same manner as that of a labour tribunal over an industrial dispute, or of a revenue court over an agricultural matter. Examples can be multiplied to show that it is the nature of the dispute that gives the jurisdiction and not the rights and liabilities of the parties nor one or the other relief specified in the special law. To my mind, the cause of action is the right to recover possession and arises on the refusal of the tenant to deliver possession, even though the statutory protection, for one reason or the other, is no more available to him. In 0.P. Kapur v. Smt. Padma Kapur 1972 Rlr 32, V.S. Deshpande J. had observed that the language of the proviso (e) contained only a statement of law. thereforee, a mere want of repetition of words of a legal provision, as is sought to be urged, will not amount to a non disclosure of cause of action or want of cause of action. The Code does not insist upon the reproduction of the law. That means that upon a meaningful reading of the application as a whole, it should bring out the facts which if proved the petitioner will be entitled to the relief he seeks. The Controller can also ask for further and better statement of the nature of the claim or further and better particulars of any matter stated in the application on the lines of Order 6 Rule 5, Code of Civil Procedure, and can in no case throw away an application as long as it discloses a part of the cause of action : Balwant Singh v. The State Bank of India and others, Air 1976 P&H; 316. In Gaganmal Ramchand v. The Hong Kong & Shanghai Banking Corporation, : AIR1950Bom345 , it was laid down that though a court is bound to reject under Order 7 Rule 11 a plaint which does not disclose any cause of action, still it has power to allow its amendment so that it should disclose a cause of action. I think such amendments should be allowed liberally and at any stage. This is all the more reasonable to so hold in the matter of an application which is to be made not as provided in Order 7 Rule I Civil Procedure Code but as required by the proviso to Section 14 in Form A prescribed by Rule 3 of the Delhi Rent Control Rules, 1959, which is common for applications under Sections 9, 13, 14 and 190) of the Act. Its informality and adaptability is, thereforee, apparent. Indeed, the Code of Civil Procedure has not been in terms made applicable to these proceedings. What Rule 23 of the aforesaid Rules provides is that subject to the Act and the Rules, the Controller shall' be guided by (and not apply) the provisions contained in the Code of Civil Procedure, 1908 and that too as far as possible. thereforee, the strict application of Order 7, Rule 11 cannot be insisted upon. I will, thereforee, hold that the objection as to non-disclosure of cause of action should ordinarily be taken at the earliest in the written statement. Application cannot be thrown out if the cause of action can be implied or if it is partly pleaded. The omission can be rectified by supplying better particulars or in the replication or by way of amendment. In this case, the application cannot be rejected or dismissed even though it failed to allege all the ingredients of the grounds under Section 14(I)(e) of the Act and even though the objection was taken in the written statement, because (1) all the grounds are implied in the various facts stated in the application and there was no need of any amendment; and (2) at any rate the replication specifically contains all the averments and it is a part of the pleadings : Jag Dutta v. Smt. Savitri Devi, .

(9) Respecting merits, I must first point out that the findings of bona fide requirement are findings of fact and they cannot be called in question in a revision unless it is shown that they are not in accordance with law. Sat pal v. nand Kishore 1983 Rlr 19, purports to hold that the landlord is not a final arbiter of his needs and the matter falls for decision of the Controller who must apply an objective standard, the criteria being the needs of a reasonable man, not a mere wish, whim or fancy. The needs of the owner, on the one hand, and the tenant, on the other, have to be balanced and that is what clause (e) seeks to do. Once having rented out the premises, and having closed his options, the owner cannot invoke his rights to dislodge a tenant who cannot be asked to unsettle himself without any genuine requirement. It appears to me quite obviously that with regard to the profession and the service of the landlord and members of his family, which facts are not in dispute, each one of them needs a separate room. All the children are unmarried and are living together with the parents. The parents need them around for help in age and ailment. They may be earning independently, but for residence they are dependent upon the parents. The landlord will certainly need the premises, but the question that still remains for consideration is whether the requirement is bona fide. The learned counsel for the tenant submitted that the need is not genuine and honest. The house was built in 1975. In 1976, the landlord suffered a heart attack and his wife was already suffering from asthma and yet in August, 1977 he rented the ground floor to the tenant. thereforee, it was urged that the ground of illness of the couple is nothing but a mere pretext to oust the tenant. It was also urged that the requirement for opening a counselling cell or for work of journalism is not a residential requirement. I agree. But for that purpose, the petitioner does not want an extra room. He only insists that he must have a drawing room and a separate room for each of the members of the family because they are engaged in intellectual pursuits I will also not reject the claim of the landlord that he needs room for books, nearly 4009 volumes, which are to be properly kept and arranged and not just stacked in some place. To my mind, this need in this case is one of the genuine ones; to Butalias, books seem to be a part of their lives and are not merely tools of profession of articles of business or decoration.

(10) The allegation that the respondent was in fact bringing pressure to increase rent does not seem to be correct because this has neither been proved by any independent evidence nor does it seem likely that the landlord in the circumstances stated above wanted the tenant not to vacate but merely to increase the rent. In Brig. Pritam Pal Singh (supra) the landlord was suffering from heart trouble and had recently suffered an attack in 1981. His wife was suffering from deformed pelvis and found it difficult to climb stairs. Doctors advised against climbing of stairs. The landlord was living on the first floor and wanted the ground floor on account of illness. The learned Judge observed that it must be held that the first floor accommodation in which they were living had become unsuitable for them and they cannot be said to be in occupation of 'other reasonably suitable residential accommodation.' This need has to be considered genuine. I am entirely and respectfully in agreement with the approach adopted by the learned Judge and have no hesitation in this case in agreeing with the Additional Controller that the requirement of the landlord is bona fide. No case of mala fides on the part of the landlord has been made out.

(11) I, thereforee, find no force in this revision petition. It is hereby dismissed. No costs. However, the petitioner shall get six months' time to vacate the premises.


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