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Hargun Das Vs. Rewa Chand - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil R. Appeal No. 162 of 1981
Judge
Reported in1984RLR60
ActsDelhi Rent Control Act - Sections 14(1)
AppellantHargun Das
RespondentRewa Chand
Advocates: S.T. Tahilianney and; G.C.Lalwani, Advs
Cases ReferredMohan Lal v. Tirath Ram Chopra (supra). Hence
Excerpt:
.....longer needs it. it is well settled that a bare denial of an averment made in the eviction petition does not amount to disclosure of fact which would entitle the tenant to leave to contest......for decision after a protracted trial he no longer needs it. hence, while granting or refusing leave the rent controller has to be very circumspect and discreet in the exercise of the power vesting in him u/s 25-b(5) and he can ill-afford to act mechanically. in my view, thereforee, the affidavit filed by the tenant's attorney, in the instant case, does not disclose facts which would prima facie entitle him to leave to defend. (11) yet another ground on which the leave to contest is sought is that the respondent is not the owner-landlord of the premises in dispute. unfortunately for the petitioner, the affidavit filed by his attorney contains a bare denial of the respondent's title to the property in question as owner. it does not disclose who the real owner of the property is. it is.....
Judgment:

J.D. Jain, J.

(1) RESPDT. sued petitioner for eviction u/s 14(1)(e) on the plea that with passage of time his children (sons-23 & 20, daughter 17 & 13) have become old enough so as to need separate rooms and his married daughter keeps on visiting and his present accommodation had become inadequate. Petitioner's brother and attorney who is living in the premises filed affidavit for leave to contest alleging that respdt. does not bona fide needs more space. Respdt. replied this by filing counter-affidavit. The Controller refused to give leave and petitioner moved High Court.] After giving above, judgment proceeds :

(2) Section 25B(5) enjoins a duty on the Rent Controller to grant leave to contest the petition if facts disclosed in the affidavit of the tenant are such as would disentitle the landlord to obtain an order of eviction. thereforee, while examining the application for leave to contest the Rent Controller has ordinarily to confine to the facts disclosed in the affidavit and it is not permissible to him to look to other documents which are on the record but which are not admitted and which are still to be proved for coming to any prima facie decision as if it be a stage for a full-fledged trial of the issues arising from the facts stated in the affidavit. The Supreme Court has enunciated the legal position in Precision Steel & Engg. v. Prem Deva Niranjan Deva Tayal, : [1983]1SCR498 , as below :

'It would be open to landlord to contest application of the tenant seeking leave to contest and for that purpose he can file an affidavit in reply but production and admission and evaluation of documents at that stage has no place. The Controller has to confine himself to the affidavit filed the tenant under sub-section (4) and the reply, if any. On perusing the affidavit filed by the tenant and the reply if any filed by landlord the Controller has to pose to himself the only question, 'Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in clause (e) of the proviso to Section 14(1)?' The Controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against the other set of affidavits.'

(3) The only document relevant for consideration at this stage is the affidavit filed by the tenant and the only precondition for grant of leave is that the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground mentioned in section 14(1)(e). Such being the legal position it is now to be seen whether the affidavit of the petitioner in the instant case discloses such facts as would dies- entitle the respondent landlord to have an order of eviction against him.

(4) It bears repetition that the, wife and three grown up children, viz., one son and two daughters who are studying in college/school are residing with him on the ground floor of this house. The learned counsel for the respondent has canvassed with considerable fervour that each member of the landlord's family is entitled to a separate room for himself/herself and as such the accommodation in possession of the respondent is grossly inadequate and insufficient for his and members of his family. Reliance in this connection has been placed on a couple of decision of this Court, viz., Krishan Kumar v. Vimla Sehgal 1976 R.C.R. 249 and Sarla Mittla v. K.C. Jain : 21(1982)DLT334 . In the former case, Avadh Behari Rohatgi, J., observed that :

'...NOone can say that when the landlord requires one separate room for each member of his family including himself and his wife, his requirement is unreasonable. The law does not expect the landlord to sacrifice his comforts and live a crowded life in his own house when he can have better comfort. The view that son and daughter can be huddled together in one room is unreasonable. The landlord cannot be asked that he must some how put up with the limited accommodation in his possession.'

This dictum was followed in latter case by Kirpal, J., who went to the extent of saying that:

'It is now settled law that a landlord is entitled to live comfortably in his own house and it is bona fide for him to ask for a room for each of his children.'

(5) There can be no two opinions that a landlord is entitled to live comfortably in his own house and as in the instant case his grown up children are not expected to be huddled together in one room. No doubt, as urged by the learned counsel for the petitioner, there is no rule of thumb which entitles the landlord to claim a separate room for each member of his family in each and every case and the requirement of the landlord has to be judged in each case objectively having regard to his special status, financial position, family background and the composition of his family etc. However, even if the landlord is a person of modest means it would be highly unjust and improper to expect him to huddle together his grown up sons and daughters in one room and he legitimately claims additional accommodation which is in the possession of a tenant for making his own life and that of his family members comfortable. Thus, there is no escape from the conclusion that a minimum of three rooms is the dire need of the respondent-landlord in the instant case, one room for himself and his wife, one room for his second son and the third room for his grown up daughters.

(6) The question which still remain to be answered is whether he genuinely and bonafide needs more accommodation for the study of his college/school going children and for the stay of his married daughter, her husband and children and his eldest son, who is at present employed at Bombay. It is common knowledge that in Hindu society married daughters keep on visiting their father's home off and on. It is not only customary for the married daughters to be invited on certain social functions but even otherwise parents would like them to come and stay with them for some time. The cords of affection in the family are not suddenly snapped on a daughter getting married or a son living away from his parents to eke out his livelihood. The parents very much wish and desire that their married daughters, her husband and children as also their sons who happen to live elsewhere for earning livelihood etc. keep on visiting them. It is for satiating their own love and affection for children that parents want them to come to their home and stay with them. There is a long catena of decisions of this Court in which it has been repeatedly held that a landlord can legitimately say that he wants more accommodation for his married daughters also. However, a discordant note has been recently struck by a learned Judge of this Court and he has expressed the view that it would be wrong to give too much importance or weight to this factor. Says the learned Judge that :

'SURELY,it would be a total distortion of the law to make an order for recovery of possession against a tenant so that the married daughters and friends of the landlord may be more comfortable during their fleeting visits. And, the tenant is evicted not for the short spell while the visit lasts, but for ever. That is no way of holding the balance (See Sat Pal v. Nand Kishore 23 Dlt 6 : 1983. R.LR.

(7) With great respect, I may say that while considering this factor what is to be taken into account is not only the requirement of the married daughter or the son who visits his paternal home but also the requirement of the landlord himself stemming from his insatiable love and affection for his children that his married daughters and sons living away from him should come and slay with him off and on. Hence, need for additional accommodation on that account can by no means be said to be unreal or malafide. Moreover resultant hard- ship to the tenant who faces imminent eviction is not a factor to reckon with under the relevant provision of the Act. The additional accommodation sought by the landlord in the instant case can well serve both the purpose of a study room and a guest room, as the need be. Looked at from this angle, there is no escape from the conclusion that the respondent-landlord is in dire need of additional accommodation as the existing accommodation with him is absolutely insufficient and inadequate for his and his family's requirement. By no stretch of reasoning it can be dubbed as malafide or dishonest.

(8) Another ground on which leave to contest is sought is that the real intention of the landlord is to enhance the rent or sell the property at a high price. Shri Khushal Dass has averred in his affidavit that the premises were initially let at Rs. 140.00 per mensem but about three years ago the respondent cut off the water supply of the petitioner with a view to pressurise him to enhance the rent. It worked and the petitioner enhanced the rent from Rs. 140.00 per mensem to Rs. 145.00 per mensem. Thereupon, the respondent restored the water supply. Subsequently in June 1978 when the marriage of the petitioner-tenant was to take place and all the guests of the petitioner had come from far and near to attend his marriage, the respondent again cut off water supply with a view to exert on the tenant for enhancing the rent. Faced with this situation the petitioner filed a petition u/s 45 of the Act for restoration of the water supply. Thereafter the landlord approached the Sindhi Panchayat, Ramesh Nagar, for intervention. However, he conceded before it that he had cut off the water supply and expressed his readiness to restore the water- Supply provided the tenant was willing to enhance the rent. Thus, the rent was enhanced from Rs. 145.00 to Rs. 165.00 per mensem with effect from 16.8.1978. However, he has explained that in the settlement the Panchayat directed that the water meter be shifted from the ground floor to the tenant's premises on the first floor with a view to avoiding further interference by the landlord. Accordingly the tenant bore the expenses of shifting the water meter from the ground floor to the first floor and on the advice of the Panchayat withdrew his petition u/s 45 of the Act. Still later only about six or seven months prior to the filing of the affidavit the respondent approached the attorney of the petitioner i.e., the deponent to either enhance the rent to Rs. 300.00 per mensem or to purchase the demised premised from him for a consideration of Rs. 1,00,000.00. Since the petitioner could neither afford to pay the enhanced rent nor had he the necessary money to purchase the premises in dispute, he refused to be pressurised any further by the landlord.

(9) Although the landlord has denied these averments in his counter-affidavit, we are not really concerned with the stand taken by him at this stage and all that the Court has to determine is whether affidavit of the petitioner discloses such facts which if proved in a regular trial would disentitle the landlord to obtain the relief. There can be no two opinions that if the landlord discloses avarice for increase in rent by threatening eviction, the eviction petition filed by him must be thrown overboard as being actuated by an oblique motive. Such a desire obviously militates against has claim of bona fide requirement of the premises as residence for himself and members of his family. All the same there can be little doubt that the facts disclosed in the affidavit must be sufficiently detailed, clear and definite and not vague or obscure, being bare allegations. In other words, optima facie case must emerge from the affidavit of the tenant before leave to contest is granted to him. As held by a Full Bench of this Court in Mohan Lal v. Tirath : AIR1982Delhi405 . Rajdhani L.R. 'the defense has to be clear and not vague, positive and not negative, specific and not a shot in the dark'

(10) Applying this test to the facts divulged in the affidavit of the tenant it passes one's comprehension that the greed of the landlord would have been satisfied by a meagre increase of Rs. 5.00 in the monthly rent viz., from Rs. 140.00 to Rs. 145.00 per mensem. As for the second increase in rent, consideration for the same is quite obvious. It was the concession on the part of the landlord to shift the water meter from the ground floor, where he was himself living, to the first floor viz., the demised premises. Had the landlord been really greedy he would not have been content by just a small sum of Rs. 20.00 per mensem. Hence, the increase in rent, if at all, was on account of additional facility and the resultant assurance to the tenant that there would be no interruption or break in the water supply to him in future due to mischief on the part of the landlord. Even the contention about the subsequent demand of enhancement of rent by the landlord is nothing more than a bare allegation. Admittedly, the petitioner is now residing at Sibsagar where he is employed and only his mother and brother, who is also attorney of the petitioner, are living in the demised promises. It does not stand to reason that the landlord would approach the brother of a tenant for increasing the rent or purchasing the demised premises when he himself is in dire need of more accomodation. Needless to say that this is a very commonplace defense which is sought to be raised almost invariably in petitions for eviction. If such a plea, evidently collateral to the real controversy between the parties, is permitted to raise its monstrous head even when it is woefully vague and patently frivolous, it may have the disastrous effect of thwarting and delaying even the most genuine case where the landlord's immediate need for additional accommodation cannot be doubted or assailed. The crucial question is : 'Does such a bald assertion in the affidavit filed by the tenant really call for an investigation by cross-examination and evaluation of evidence which may be adduced by the parties when the genuine and honest need of the landlord for additional accommodation is writ large on the lis ?' On a commonsense view and pragmatic approach to the whole purpose of introducing Section 25B is to ensure that a landlord who genuinely needs additional residential accommodation for himself and members of his family in present and not future must not be denied the relief. Grant of leave to contest on such like flimsy and frivolous grounds which can be set up in each and every case without any qualms of conscience is bound to cause great hardship and severe heart-burning to a landlord who is denied additional accommodation when he really needs it and who may eventually fail because by the time the lis is ripe for decision after a protracted trial he no longer needs it. Hence, while granting or refusing leave the Rent Controller has to be very circumspect and discreet in the exercise of the power vesting in him u/s 25-B(5) and he can ill-afford to act mechanically. In my view, thereforee, the affidavit filed by the tenant's attorney, in the instant case, does not disclose facts which would prima facie entitle him to leave to defend.

(11) Yet another ground on which the leave to contest is sought is that the respondent is not the owner-landlord of the premises in dispute. Unfortunately for the petitioner, the affidavit filed by his attorney contains a bare denial of the respondent's title to the property in question as owner. It does not disclose who the real owner of the property is. It is well settled that a bare denial of an averment made in the eviction petition does not amount to disclosure of fact which would entitle the tenant to leave to contest. Reference in this context may be made with advantage to Mohan Lal v. Tirath Ram Chopra (supra). Hence, this ground too is not af all tenable. Petition dismissed. Shriram Institute for Industrial Research. D.W. 1 testified that the sampling procedure for taking a sample of ghee is that it should be taken after mixing the sample in bulk and taking a portion out of a homogeneous mixture for taking representative sample. He further deposed that it was necessary that the sample should be stored in an air-tight bottle so that it may contain no air and moisture, etc. and it should not be exposed to light radiation during storage.

(12) On an examination of the record we are of the view that it is possible that the various tests performed by the Public Analyst and the Director gave different results because of defective sampling.

(13) The learned counsel for the Corporation contended that the report of the Director obliterates the report of the Public Analyst and, thereforee, it is not legally permissible to look at the report of the Public Analyst. There is no doubt that u/s 13 the report of the Director supersedes the report of the Public Analyst but on the peculiar facts of this case we think it cannot be safely said that the sample was adulterated. The Additional S.J. has given benefit of doubt to the accused and we find no sufficient reason to interefere with the order of acquittal.

(14) We, however; do not agree with the observation of the learned Judge that since there was no complaint or a trial on the facts found by the Director the conviction was vitiated. The Prevention of Food Adulteration Act is a Self contained Code. S. 10 empowers the F.I. to take sample of articles of food for the purpose of analysis and send the same for analysis to the Public Analyst. S. 11 lays down the procedure that is to be followed by the F.I. in the taking of Sample Section 13(2) (unlamented-there have been drastic changes in S. 13 by Act 34 of 1976) gave a right to the vendor after the institution of the prosecution to have one of the counter parts of the sample sent to the Director of Central Food Laboratory for certificate and the law further made the report of the Central Food Laboratory final and conclusive evidence of the facts stated therein. A reading of S. 13 makes it clear that its object was to afford an opportunity to the accused to get the sample analysed if he so desired by the Cfl whose certificate was to be final and conclusive proof of the facts stated therein. Under unamended S. 13 of the Act vendor could not only exercise the right to have the sample tested by the Director, Central Food Laboratory after the prosecution was instituted.

(15) We are of the view that the fact that the Director found the sample to be adulterated for reasons different to the one given by the Public Analyst would not render the prosecution instituted on the basis of the report of the Public Analyst invalid.

(16) We find from the record that the report of the Director, Central Food Laboratory, Calcutta, was put to the accused and he was given full opportunity to explain it and produce evidence in defense. However, for the reasons stated earlier we dismiss the appeal.


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