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Jagan Nath Chawla Vs. R.K. Vij - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 1086 of 1980
Judge
Reported in20(1981)DLT503
ActsDelhi Rent Control Act, 1958 - Sections 25B
AppellantJagan Nath Chawla
RespondentR.K. Vij
Advocates: S.P. Chug and; D.B. Marwaha, Advs
Cases Referred(Shyam Bihari Singh v. Smt. Sushila Devi Mittal). In
Excerpt:
.....by shri chugh as well as a decision of prithvi raj) j. in the present case, however, it has been clearly stated that the children of the landlord are dependent upon him. the present need of the landlord for more accommodation is clearly bona..........two years i.e. on or before 10th february, 1978. while soni continued to live in the premises the room marked x, in which the landlord was previously residing, was converted to commercial use and was added to room y and in both the rooms, namely x and y, the business of jayen electronics was conducted. shri soni vacated the premises in 1977. thereafter in 1978 the use of the room marked z, which was being occupied by the landlord for residence, was changed and one of the sons of the landlord started an enterprise called r.k. screen printers in the said room. at the present moment, thereforee, the position which emerges is that rooms marked x, y and z are being used for commercial purposes but rooms marked a and b, kitchen marked c and box room marked d are being used for residential.....
Judgment:

B.N. Kirpal, J.

(1) The petitioner-landlord has filed the petition against the order of the 1st Additional Rent Controller, Delhi who had dismissed the landlord's application under section 14(1)(e) of the Delhi Rent Control Act.

(2) The respondent is the tenant of the first floor of the house owned by the landlord. The accommodation with the tenant consists of two rooms, kitchen, bath room and latrine. On 6th January, 1979 the landlord filed a petition under section 14(1)(e) read with section 25B of the Act. It was alleged by the landlord that the premises, which are in the occupation of the tenant were bona fide required by him for himself and members of his family dependent upon him. In the application it was stated that the landlord was residing on the ground floor of the property and that the residential accommodation with him consisted of two rooms, kitchen and a box room. The family of the landlord was stated to be consisting of himself, his wife, three sons aged 24 years, 22 years and 18 years respectively and two daughters. At the time of the filing of the application one of the sons was engaged but since the filing of the eviction petition he has got married. One daughter was also married but it was stated that she visits the landlord but due to paucity of accommodation does not stay overnight. It was also stated that two rooms on the ground floor were in the occupation of M/s Jayen Electro.nics and one room was in the occupation of M/s R.K. Screen Printers. It is admitted that Jayen Electronics is owned by the landlord and R.K. Screen Printers is owned by one of the sons of the landlord.

(3) After notice of the petition was served the tenant obtained leave to contest the petition. In the written statement it was contended by the tenant that the landlord was not the owner of the premises. It was also contended that the requirement of the landlord was not bona fida. According to the tenant the landlord had got a portion of the house vacated from an old tenant one, Shri Soni, and thereafter the said portion which was vacated - by Soni was used by the landlord for commercial purposes.

(4) Before the Rent Controller the tenant did not dispute the purpose of the letting. With regard to the ownership, it was held by the trial court that the landlord had proved on record the sale deed in his favor which showed that he was the owner of the premises in question. The trial court further held that the landlord had changed the user of the premises in his occupation from residential to commercial after getting the same vacated from the previous tenant and, thereforee, he cannot make a grievance that the accommodation with him was not sufficient, as the paucity of accommodation had been brought about by the petitioncer by his own act. The trial court observed that it was immaterial that the present accommodation was not sufficient for the petitioner and his family members, since the paucity of accommodation was self-induced. The application of the landlord was accordingly rejected.

(5) The landlord has filed the present petition under section 25B(8) of the Act challenging the aforesaid decision of the Addl. Rent Controller. The two main contentions on behalf of the petitioner are that the Addl. Rent Controller erred in coming to the conclusion that the need of the landlord for the accommodation was not bona fide and, further, in any event, even if the rooms which have been converted for commercial purposes are taken into consideration the accommodation with the landlord is still insufficient.

(6) EX. Aw 1/2 is the site plan of the property in question. The ground floor of the premises consists of two rooms, marked A and B, a kitchen, marked C, three other rooms, marked X, Y and Z, and one box room, marked D. The dimension of the box room is only 5.9.'X 7.9'. It is admitted before me that prior to 1976 the landlord lived in rooms marked X and Z. In room Y business was being carried on in the name of Jayen Electronics since 1969. Rooms and kitchen marked A, B and G were in the occupation of one tenant, Shri Soni. Eviction proceedings against Shri Soni were initiated by the landlord on 14th July, 1975. On 10th February, 1976 the case was compromised. Shri Soni agreed to vacate the premises within two years i.e. on or before 10th February, 1978. While Soni continued to live in the premises the room marked X, in which the landlord was previously residing, was converted to commercial use and was added to room Y and in both the rooms, namely X and Y, the business of Jayen Electronics was conducted. Shri Soni vacated the premises in 1977. Thereafter in 1978 the use of the room marked Z, which was being occupied by the landlord for residence, was changed and one of the sons of the landlord started an enterprise called R.K. Screen Printers in the said room. At the present moment, thereforee, the position which emerges is that rooms marked X, Y and Z are being used for commercial purposes but rooms marked A and B, kitchen marked C and box room marked D are being used for residential purposes by the landlord.

(7) The learned counsel for the petitioner has contended that the trial court fell in error in coming to the conclusion that if the landlord changes the user of the premises which are with him to commercial purposes his requirement cannot be said to be bona fide. While relying upon decisions of Gurcharan Singh v. Mukand Singh, Civil Revision 229-D of 1959 decided by Falshaw C.J. on 1st February, 1962, B.K. Khanna V. M.R. Batra, 2 1966 DLT 306 and Manohar Lal v. Mool Chand Vol. 12 (1976) D.L.T. 106 it has been contended by Shri Chugh that it is wrong to state that conversion of residential premises to commercial purposes is to be ignored while judging the bona fide needs of the landlord. His submission is that the premises which are bona fide used for commercial purposes are not to be take into consideration while judging the present need of the landlord. Shri Marwaha, on the other hand, while relying upon Hari Chand v. Santokh Singh ami another, 1972 R.C.J. 29, Kishori Lal v. Sumitra Devi, Sao 164 -D of 1962 decided on 23rd April, 1970 and Aja Kumar v. Balvinder Singh and others, Sao No. 21 of 1968 decidedon 29th,July 1970 has contended that such change of user from residential to commercial shows that the need of the landlord is not bona fide.

(8) A similar question had arisen before this Court In Civil Revision No. 820 of 1980 (Shyam Bihari Singh v. Smt. Sushila Devi Mittal). In that case the landlady had converted one of the rooms, which was being used by her for residential purposes, into a shop. After referring to the aforesaid decisions cited by Shri Chugh as well as a decision of Prithvi Raj) J. in Aja Kumar's case (supra), it was observed by me as follows:- The shortage of residential accommodation with the landlady may be due to various reasons. In deciding an application under section 14(1)(e) what is relevant to see is as to whether that shortage was created with a view to oust the tenant. If the landlady alters the use of the residential premises with her, for example by using them for commercial purposes, and this has been done so as to create the shortage of residential accommodation vith her with a view to seek the eviction of a tenant, then in such a case the landlady would not be entitled to any relief. On the other hand, the change of user of the residential premises for commercial or professional purposes may be bona fide for the purposes of earning a livelihood. If the changed user is in accordance with law then, if the remaining residential accommodation with the landlady is insufficient, the landlady can justifiably move an application and seek the eviction of a tenant under section 14(1)(e). Where the bona fides of the landlady are not in doubt, the tenant will not be heard to say that the shortage of accommodation is due to the landlady's own creation and the tenant's eviction should not be ordered. A landlady is entitled to use the accommodation with her in any way she pleases. If the use of the accommodation for commercial purposes is bona fide in accordance with law then she would be entitled to plead that the remaining accommodation with her is insufficient for residential purposes.

(9) The other judgments referred to by the learned counsel can be of no assistance. In Kishori Lal's case (supra) it was observed by Prithvi Raj, J. that if the landlord allowed a son to occupy a portion of the premises and had thus created paucity of accommodation by his own act then an argument cannot be raised that the remaining premises in the occupation of the landlord are insufficient for his residence. In that case it was observed by the learned Judge that in the application for eviction which had been filed it had not been stated that the son was dependent upon the landlord. In the present case, however, it has been clearly stated that the children of the landlord are dependent upon him. This averment has not been contradicted by the tenant. The full text of the judgment of the Punjab & Haryana High Court in the case of Hari Chand (supra), the short note of which has been relied upon by the learned counsel, as reproduced in the said case,has not been made available to me. In the absence of the full judgment I am not inclined to express any view on the said decision. I may, however, state that the question as to whether the change in user was bona tide or not would depend upon the facts of each case.

(10) In the present case there is nothing to suggest that the use of the rooms for commercial purposes is not in accordance with law, nor is there any evidence on the record to show that the conversion of the rooms from residential to commercial purposes was not made bona fide. The conversion of the use of the rooms from residential to commercial would be mala fide if such conversion is resorted to with a view to create shortage of accommodation with the landlord with the object of seeking the eviction of the tenant from another portion of the premises.

(11) In the present case room marked Y has been used by Jayen Electronics since 1969. The trial court has been influenced by the fact that after Soni was evicted from rooms marked A, B and C the landlord converted room marked Z, which was previously being used as residence by the landlord as long as Soni was residing in the premises, showed that the change in the user was mala fide. It is true that the use of the room marked Z was changed by the landlord voluntarily but the mere change of the user cannot ipso facto lead to the conclusion that the change was made for mala fide reasons. According to the landlord this room was converted in order to rehabilitate one of his sons and to enable him to earn a livelihood. The use of the room marked X had been changed prior to Soni leaving the premises. To my mind, there is nothing on record which would show that the said change of user of any of the rooms from residential to commercial purposes was mala fide or contrary to law.

(12) Even if it be assumed that the Addl. Rent Controller was right in coming to the conclusion that the paucity of accommodation was as a result of its creation by the landlord, the Controller fell in errer in not considering as to what can be regarded as the bona fide personal need of the landlord. If the change of the user of the premises from ressdential to commercial purposes is to be ignored it can only mean that rooms marked A, B, X and Z, besides kitchen and a box room, would be available with the landlord for his residence. The Rent Controller ought to have gone into the question as to whether these rooms could be sufficient for the residential accommodation of the landlord, this would be on the assumption that rooms marked X and Z can be made available for residential purposes and that the change of user was mala fide. It is not denied that the landlord has a large family which is dependent upon him for accommodation. Even if the need of the married daughter is not taken into consideration the family of the landlord consists of himself, his wife, married son and two other grown up sons and one daughter. This would make seven adult members of the family. The accommodation which is available with the landlord, even if rooms marked X and Z are taken into consideration, cannot be regarded as sufficient. The rooms in question are small. The dimensions of the rooms are as follows:- Room marked A 12' X 10' Room marked B 11 ' X 10' Room marked X 10' X 10' Room marked Z 10' XII' The kitchen is 6' X 10' and the box room is 7.9' X 5.9'. The total floor area which is available to the landlord and members of his family for residential accommodation, even by taking into account two rooms marked X and Z, appear to be wholly insufficient. The present need of the landlord for more accommodation is clearly bona fide.

(13) For the aforesaid reasons the Revision Petition is allowed, the order dated 16th October, 1980 of the First Additional Rent Controller, Delhi is set-aside and the eviction of the respondent-tenant from the premiles in his occupation is ordered. The respondent is. however, given six months' time with effect from today to vacate the said premises. Parties to bear their own costs.


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