Skip to content


Banmali Raut Vs. Pushpa Sakasena - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Review Appeal No. 222 of 1983
Judge
Reported in24(1983)DLT383
ActsDelhi Rent Control Act, 1958 - Sections 14(1) and 25B
AppellantBanmali Raut
RespondentPushpa Sakasena
Advocates: V.K. Jain and; Devinder Singh, Advs
Excerpt:
tenancy - bonafide requirement - section 14 (1) of delhi rent control act, 1958 - no study room in premises - no bedroom for unmarried daughter - no guest room - married daughter frequently visit parental house as her husband is often abroad due to his service condition - held, bonafide requirement of landlord established. - - (3) that the husband of the petitioner's daughter is a marine engineer in a foreign shipping concern and as such the married daughter of the petitioner for want of proper shelter and protection as well, come frequently to live with her parents i. (6) that the petitioner and the members of her family have a good status in society and the present accommodation with them is hardly sufficient to meet their day requirements. on merits the contention of the learned..........that he was instrumental in getting the petitioner inducted in as a tenant for residential-cum-commercial purpose. in cross-examination, he had to admit that he had not seen the house of the respondent. in this situation, he obviously could not be believed. we are left with the evidence of the respondent and her husband on the one side and the petitioner on the other. on consideration of the entire oral evidence. the addl. rent controller came to the conclusion that the purpose was residential and no error can be found with this finding. there is yet another aspect and i.e. that admittedly the petitioner is not carrying one any commercial activity in the premises in dispute. all that he does, at the most, is to receive certain person who come to call him. this by itself cannot be.....
Judgment:

N.N. Goswamy, J.

(1) This revision petition by the tenant is directed against the judgment dated 10.12.1982 whereby the eviction petition of the respondent owner was allowed and the eviction order was passed. The respondent filed a petition under Section 14(1)(e) read with section 25B of the Delhi Rent Control Act for eviction of the petitioner from the premises in dispute. In paragraph 18 (a) of the petition, it was alleged :

'That the tendency premises are bona fide required by the petitioner for herself and for the members of her family, dependent upon her for accommodation and otherwise also. The petitioner has no other suitable residential accommodation for herself and the members of her family. The petitioner is the owner/landlord of the disputed tenancy premises. The tenancy premises had been let out to the respondent for residential purpose'.

(2) That the petitioner's family comprised of herself, her husband, one married daughter, one unmarried daughter, one unmarried son and a one domestic servant.

(3) That the husband of the petitioner's daughter is a Marine Engineer in a foreign shipping concern and as such the married daughter of the petitioner for want of proper shelter and protection as well, come frequently to live with her parents i.e. the petitioner and her husband.

(4) That there is no store rooms for keeping goods, no bed rooms for unmarried daughter and son, no dressing room, no study room and no guest room. The father-in-law of the petitioner who is an aged man of 71 years also frequently comes to reside along with the petitioner and her husband and is unable to stay permanently for want of suitable accommodation.

(5) That the petitioner wants to marry her only son and is putting of the plan for want of suitable residential accommodation.

(6) That the petitioner and the members of her family have a good status in society and the present accommodation with them is hardly sufficient to meet their day requirements. The husband of the petitioner is Deputy Insurance Commissioner in E.S.I. Corporation.' Notice of the petition was issued to the petitioner tenant. He filed an application for leave to defend on various grounds. It was alleged that the letting purpose of the premises in dispute was residential-cum-commercial. There was sufficient accommodation available with the owner landlady. The ownership of the landlady was at disputed and it was further stated that the petition was malafide in as such as the only purpose for which the petition was filed was to relating the premises at higher rent. The leave to defend was granted on the first two grounds i. e. the letting purpose and the bona fide requirement of the premises. As regards the ownership and the plea of relating the premises on enhanced rent, the leave was refused. In accordance with the order granting leave the petitioner filed his written statement wherein the same pleas as were taken in the application for leave to defend were repeated. In order to prove her case, the landlady examined herself as AW1 and her husband as AW2. She deposed that the premises were let by her father to the petitioner for residential purpose only. She further deposed that her family consisted of herself, her husband, one son and two married daughters. She further stated that her father-in-law also was residing with them. She also stated that since one of her son-in-laws was usually put on duty, her married daughter was spending most .of her time with them. She also proved the accommodation in her possession which according to her was three rooms. One being a drawing room, the other dining room and the third being a bed room. She admitted that there was a glazed verandah in addition to these three rooms, where her son used to sleep. She also stated that her son was of marriageable age and she was postponing the marriage of her son for want of accommodation. In rebuttal, the petitioner-tenant examined himself as RW2. He deposed that the premises were let for residence-cum-contract business and he was using one room for his residence and the other for his contract business. He admitted that he had been paying rent to the respondent-landlady. According to him, in addition to the accommodation described by the respondent-lady, she had also a bar sati which was about 15' X 12'. He further deposed that the accommodation was Sufficient for the family consisting of the landlady, her husband and one son. RW1 is a L.D.C. from the office of the Chief Engineer (Water). He deposed that the petitioner had taken out a license for the sanitary work and the address for correspondence, as given there is of the premises in dispute. In cross-examination, he expressed his ignorance as to whether the petitioner was carrying on any commercial activity in the premises in dispute. RW. 3 is one L.R. Sharma who deposed that he was living in the colony since 1965 and he knew the parties. According to him, he was instrumental in getting the tenancy to the petitioner for residence-cum-sanitary contract. In cross-examination, he admitted he had not seen to the house of the respondent. The last witness R.W. 4 is one Birpa Charan. He stated that he belongs to the same profession as the petitioner. He further stated that the petitioner carrying on his business in the premises in dispute. In cross-examination, he stated that he knew the petitioner, for the last about 20 years and his family consists of his wife, himself, his son and his daughters, who were also residing there. It is also stated that the petitioner was keeping his tools in the premises in question. On consideration of the entire evidence on record, the learned Additional Rent Controller came to the conclusion that the premises were let for residential purpose only and the accommodation with the respondent was insufficient for her requirements and as such the claim was bona fide. Accordingly he allowed the petition and passed an order of eviction. The first contention of the learned counsel for the petitioner before me was that limited leave should be granted in view of the decision of their lordships of the Supreme Court in the case of Precision Steels and Engineering Work Ltd. The contention is correct in as much as there is a passing reference in the judgment that the leave should be granted as a whole. The defense on which the leave was refused relates to the ownership of the respondent. In view of the fact that the leave was refused on this ground, I have heard the learned counsel for the parties at length, and have also been taken through the documents on record. There is an important document on record, which is a letter from the petitioner, addressed to the respondent. The document was been proved and is Ex. A.6. This letter was written in 1973 and it starts with the admission of the petitioner to the effect that the respondent is the owner of the premises. He has also stated that be had paid rent up to the particular period and the balance of the amount is being sent to the respondent. Besides this clear admission in the documents a legal notice was also sent to the petitioner by the respondent where in she had claimed to be the owner of the premises. The legal notice was replied and the reply is Ex. A. 5. In the said reply, the ownership of the respondent was not questioned. In view of these documents, there is hardly any need to send back the case after granting leave on this defense. On merits the contention of the learned counsel for the petitioner is that the onus to prove the letting purpose, was on the respondent and she has miserably failed to discharge the onus. The respondent has pleaded in the petition that the letting purpose was residential. She has also deposed in her statement and in the statement of AW. 2 also, that the letting purpose was residential. Regarding the letting purpose, the evidence is oral on both sides. AW. 3, who happens to be a resident of the same locality, has come in the witness box to state that he was instrumental in getting the petitioner inducted in as a tenant for residential-cum-commercial purpose. In cross-examination, he had to admit that he had not seen the house of the respondent. In this situation, he obviously could not be believed. We are left with the evidence of the respondent and her husband on the one side and the petitioner on the other. On consideration of the entire oral evidence. The Addl. Rent Controller came to the conclusion that the purpose was residential and no error can be found with this finding. There is yet another aspect and i.e. that admittedly the petitioner is not carrying one any commercial activity in the premises in dispute. All that he does, at the most, is to receive certain person who come to call him. This by itself cannot be considered to be a commercial activity. Mr. Jain wanted me to take into consideration the nature of the property and according to him, the nature is commercial and not residential. Admittedly a large family of the petitioner has been residing in these premises and it is not open to him to argue that the nature is commercial and no residential. In his own statement also he does not say that he is carrying on any commercial activity in these premises. It is admittedly above the shop and below the first floor. The first floor is residential and the shop is commercial. So it can be used for either of the two purposes and it cannot necessarily be said that it can only be used for commercial purpose or residential purpose. Considering the fact that the petitioner has been residing in these two rooms with large family, leads me to an irresistible conclusion that the premises are residential and not commercial. The user has been for the last about 20 years. The next contention of Mr. Jain, the learned counsel for the petition is that the accommodation available with the respondent is sufficient for her requirement. I have seen the plan of the premises in dispute which is Ex. A.1. According to the plan, the accommodation available with the respondent is one drawing room measuring 14' X 11', one bed from of the same size and one dinning room measuring 14' X 11.6' and on one side the width is only 7', one closed verandah measuring 13' X 5' X 6' and one passage besides the kitchen and bath. Admittedly the family of respondent consists of herself, her husband and one son of marriageable age. There is no dispute about the fact that the respondent has two married daughters and an aged father-in-law who may also visit the respondent occasionally. This has, in fact been admitted by the witness of the petitioner that the daughters do visit the respondent and stay with her. There being only one regular bed room, it cannot be said that the accommodation is sufficient for all these members of the family. The status of the family is that the husband of the respondent was at the time of filling of the petition Deputy Insurance Commissioner in E.S.I. Corporation and at present he is Director (Vigillence) in the said Corporation. With this status he is expected to keep a drawing room, a dining room and at least one bed room for himself and his wife besides a regular bed room for his son who is of marriageable age and accommodation for the guests including his married daughters and father-in-law when they visit. According to Mr. Jain, the respondent can use the barsati floor for this purpose. The barsati is not ordinary a residential accommodation because it is attached to the terrace and the passage to the terrace is through to the bed room. Mr. Jain also volunteered to shift from mezzanine to the bar sati on the same terms and conditions but this suggestion was not acceptable to the learned cousel for the respondent on the grounds that the respondent will lose the terrace used during the summer month. I agree with the learned counsel for the respondent that in case the room on the bar sati floor is given to the petitioner, there is no approach to the terrace and the terrace will also become useless for the respondent. On considerations of the entire circumstances of this case, I do not find any ground to interfere with the impugned order passed by the learned Addl. Rent Controller and accordingly dismiss this revision petition. In the circumstances the parties are left to bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //