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ishar Das Sawhney Vs. S.C. Mahindru - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 38 of 1979
Judge
Reported in18(1980)DLT231; 1980(1)DRJ174; 1980RLR662
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
Appellantishar Das Sawhney
RespondentS.C. Mahindru
Advocates: N.R. Suri and; K.N. Kaura, Advs
Cases Referred and Kewal Singh v. Lajwanti
Excerpt:
.....because the revising authority is inclined to draw different conclusion when the conclusion of the rent controller is a possible conclusion. a decision of the rent controller can be revised if there is a miscarriage of justice due to a mistake of law and not by picking up a mistake or error here or there. - - (vi) the bonafide need arising out of compelling considerations of health like the need of ground-floor accommodation for cardiac patients advised to live in ground-floor accommodation or of ageing persons who find it if not impossible, certainly very uncomfortable to keep climbing on first or second floor accommodation is a valid need to be given due weight. (11) i have carefully gone through the record of the case and do not find that any of the aforesaid challenges to the..........facts of each case. (ii) the assessment of need is an objective appraisal to be made by the rent controller and the landlord is not the sole arbiter of his need. (iii) in such objective assessment to be made by the rent controller, whereas the landlord's whim and fancies have to be ignored, his desire to live reasonably comfortably has to be given due weight and the need, thereforee, has not to be weighed in a fine scale. (iv) the assessment of need is not confined to the physical need but must include needs arising from the standard of living the landlord is used to. the assessment of need is not the calculation of space a man needs or the area in which the members of the family can exist but the accommodation where such members can reasonably live. (v) the need to be taken into.....
Judgment:

Harish Chandra, J.

(1) The revision arise from the order of 5th Add. Rent Controller, Delhi, dt. 7.12.78 whereby he dismissed eviction petition as he did not find any element of need in the claim of the landlord to suit premises.

(2) The only point at issue is whether landlord 'required' the premises within the meaning of that word in S. 14(1)(e) of Delhi Rent Control Act, 1958.

(3) Petitioner set up a case that the premises are required for

(A)himself and his wife. (b) his son, daughter-in-law and 2 grand children, (c) his 2 other sons who were living out side India and visit off and on, along with their families, (d) his married daughter who has 3 children and who visits off and on; And his present accommodation consisted of, (i) 4 rooms on the ground floor, & (ii) one barsati on the 2nd floor.

(4) Petitioner said that he was using one room as a drawing room, another room as a dining room leaving only 2 bed rooms of small size. Tenant urged that the accommodation now with the petitioner is suitable and sufficient, inter alia, because; The 2 sons living abroad are permanantly settled abroad and have not visited India since 1972 and need for accomodation for them cannot with any justification be taken into account.

(5) After taking into consideration the evidence on record controller came to the following conclusions;

(I)The petitioner has 4 large bed rooms & a large barsati room. (ii) The aforesaid accommodation is spacious and sufficient for the landlord and the members of his family.

(6) In the impugned order Controller happened to observe that the petitioner can use a room for drawing-cum-dining instead of two rooms for the same and that the Barsati-room can be used as a Guest Room for visiting persons.

(7) The learned Controller noted that when the premises were let out to the tenant in 1970 the members of the family of the petitioner needing accommodation was larger because the two sons and their families had not gone abroad and yet the petitioner did not require the premises and had let it out.

(8) It is not necessary to recall and set out all the decisions on the subject of how the phrases 'bonafide required' and 'does not have reasonable suitable residential accommodation occurring in Section 14(1)(e) have to be understood and what is the scope of judicial review under Section 25B(8) of the Act because the same have been repeated very often and are, thereforee, popularly known. However, it may be useful to set out some and not all, the guiding principles on the two subjects, as follows :

(I)No arithmatical or doctrinaire approach can be set down and applied to the assessment of the need of the landlord and such assessment must depend upon the peculiar facts of each case. (ii) The assessment of need is an objective appraisal to be made by the Rent Controller and the landlord is not the sole arbiter of his need. (iii) In such objective assessment to be made by the Rent Controller, whereas the landlord's whim and fancies have to be ignored, his desire to live reasonably comfortably has to be given due weight and the need, thereforee, has not to be weighed in a fine scale. (iv) The assessment of need is not confined to the physical need but must include needs arising from the standard of living the landlord is used to. The assessment of need is not the calculation of space a man needs or the area in which the members of the family can exist but the accommodation where such members can reasonably live. (v) The need to be taken into account is basically of those members of the landlord's family who stay together normally but it is permisible to have some regard to the need arising from occassional visits of married daughters or sons posted elsewhere. (vi) The bonafide need arising out of compelling considerations of health like the need of ground-floor accommodation for cardiac patients advised to live in ground-floor accommodation or of ageing persons who find it if not impossible, certainly very uncomfortable to keep climbing on first or second floor accommodation is a valid need to be given due weight. (vii) The need of accommodation arising out of having to shift from a city outside Delhi to Delhi is a valid need to be given due weight.

(9) The other proposition to consider is the scope of judicial review under Section 25B(8) are again, so much has been said and what has been said has so often been quoted that it does not appear necessary to go through the exercise all over again. I will, however, atleast to recall some and not all the broad guidlelines flowing from these judgments, particularly those of the Supreme Court, reported is Hari Shankar v. Rao Girdhari Lal A.I.R. 1953 S.C.698. Puran Chand v. Motilal, : AIR1964SC461 and Kewal Singh v. Lajwanti (1980) 1 S.C.C. 390=1980. Raj L.R. 70.=DRJ 1980 1.

(I)The scope of Judicial review under Section 25B(8) is wider than u/s 39(2) of the Delhi Rent Control Act on 115, Code of Civil Procedure. (ii) An error of law which can be corrected by revision u/s 25B(8) is not restricted to an error based on exercise of jurisdiction where not existed. (iii) A revision u/s 25B(8) not being an unrestricted appeal is not a proceeding in the nature of rehearing and a finding of fact arrived at by the Rent Controller is not liable to be disturbed. (iv) If a finding of fact arrived at by the Controller as based on an inference from primary facts, such an inferential finding can be revised if it is shown that such an inference could not be derived at all or in law. A decision of the Controller is not liable to be revised merely because the revising authority is inclined to draw different conclusion even though the conclusion of the Rent Controller is a possible conclusion. (v) Only such a decision can and should be revised which is not in accordance with law as a whole. A decision of the Rent Controller is not liable to be revised merely because a mistake or an error has crept in or a hole can be picked here or there unless such an error goes to the root of the matter and if such an error was not committed or made, it would result in a different decision. (vi) A decision of the Rent 'Controller is liable to be revised if there is a miscarriage of justice due to a mistake of law.

(10) Shri Naubat Ram Suri, learned counsel for the petitioner has stressed the following infirmities in the impugned order :

(A)The observation of the Rent Controller that in 1970, all three sons of the petitioner with their families resided with him is not based on the evidence of either party. (b) The Rent Controller has not taken into consideration the need arising from the visits of sons and the Rent Controller has given no weight to the evidence that a room of a neighbour had to be used for accommodating a visiting son. (c) In letters addressed by the respondent to the petitioner the need of the petitioner has been acknowledged but the Rent Controller did not proceed on the basis of such admission.

(11) I have carefully gone through the record of the case and do not find that any of the aforesaid challenges to the impugned order makes it one based on a legally unsound approach to the assessment of the need of the landlord and I am satisfied that the order as a whole is in accordance with law. The petition is, thereforee, dismissed but with no order as to costs.


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