Skip to content


D.N. Gupta Vs. Jaswant Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 29 of 81
Judge
Reported inAIR1982Delhi250; 21(1982)DLT8; 1982(3)DRJ1; ILR1982Delhi309; 1982RLR185
ActsDelhi Rent Control Act, 1958 - Sections 14(1); Code of Civil Procedure (CPC), 1908 - Order 19, Rule 3
AppellantD.N. Gupta
RespondentJaswant Singh
Advocates: C.L. Nasimhan,; R.K. Makhija,; H.L. Sabarwal,;
Cases ReferredDelhi Cloth & General Mills v. T. S. Bhatia
Excerpt:
.....and leave to contest should be granted,; code of civil procedure - order 19 rule 3 ; if the affidavit for leave to defend is not properly verified, the deponent must be allowed an opportunity to file another affidavit in accordance with law. - - similarly, the accommodation at the second floor consists of one large room, one small room kitchen, bath and latrine, big open terrace a portion of which is now covered by temporary structure'.the petitioner has further alleged that the alleged need of (he respondent is not genuine, that his statement that he has a big family consisting of 18 members is not true, that he wants to rent out the premises occupied by him after getting the same vacated at a higher rent, that the premises were let on 1st, july, 1978 and since then there has..........consists of 18 members, that they have been in occupation of the ground floor and the second floor which accommodation according to them is insufficient. it may be but the question is: what is the change in the circumstances and why the house at new friends colony owned by the son cannot be taken to be an accommodation available to the respondent or his son? there are as such disputed questions of fact and leave to defend can not be refused. it has been held by this court that if disputed questions of facts are raised and their decision is necessary to grant relief to the landlord, then those questions should not be decided on affidavits and leave to contest should be granted (see -.mool chand v. ganda ram, 1977 rlr 240, kalyan singh v. j.p. gupta, 1977 rlr 242, fateh singh v......
Judgment:

Saltan Singh, J.

(1) This revision petition under Section 25B(8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') is directed against the judgment and order of the Rent Controller dated 30th September, 1980 dismissing the petitioner's application for leave to defend and passing an order of eviction against him. Briefly the facts are that Jaswant Singh is the owner of the property No. 8-10, Nizamuddin (West), New Delhi. First floor of this property was let out in 1974 to Bharat Heavy Electricals Ltd. of which the petitioner, D. N. Gupta was Deputy Personal Manager and he was in occupation of the premises on behalf of the company. He retired in 1978. The respondent accepted the petitioner as a tenant in his own right on the first floor of the said property with effect from 1st July, 1978 in terms of a rent note for a fixed period of 11 months on a monthly rent of Rs. 600.00 . The petitioner renewed the tenancy for further period of Ii months by executing another rent note dated 1st June, 1979. The petitioner alleges that there were negotiations for renewal of tenancy in May, 1980, but they did not materialise. On 15th May, 1980 the respondent served a notice of eviction requiring the petitioner to vacate. The petitioner on 25th June, 1980 filed an application for fixation of standard rent. On 8th July, 1980 the respondent filed the eviction application under Section 14(l)(e) read with Section 25B of the Act, alleging that he was the owner of the premises, that the first floor of the said property was let for residence, that he was in occupation of the ground floor comprising two bed rooms, a prayer room, ore drawing cum-dining room, kitchen, latrine, bath and verandah with his two married sons and that his third married son was residing in Barsati floor comprising one room only, that the premises were less and insufficient for him and for members of his family consisting of himself, his wife, his married son lqbal Singh with three children, his married son Ravinder Pal Singh with two children residing on the ground floor and his son Amrik Singh with five children residing in the Barsati floor. He also alleges that the sons were dependent upon him so far as the residential accommodation was concerned, that he has no other reasonably suitable residential accommodation in Delhi or anywhere else, that he has a married daughter with two sons, who often visit him. The petitioner filed an application for leave to defend supported by a detailed affidavit. The Rent Controller dismissed the application for leave to defend and passed an order of eviction. Hence this revision petition under Section 25B(8) of the Act.

(2) The short question for determination is : Whether the petitioner in his affidavit has disclosed facts which would disentitle the landlord from obtaining an order for the recovery of possession of the premises. The petitioner-tenant in his affidavit has deposed that the respondent-landlord has been in occupation of the ground floor with the families of his two married sons lqbal Singh and Ravinder Pal Singh, that the second floor has been in occupation of his eldest son Amrik Singh independently along with his wife and children, that on the expiry of the fixed period of Ii months in terms of the rent note, negotiations for renewal took place in the first week of May, 1980 when the respondent sent a draft of a rent note which was not acceptable to him. The two conditions which were not acceptable were that he had realised the bona fide requirement of the respondent-landlord and that he would vacate the premises positively by 31st March, 1981. The parties could not arrive at an amicable settlement and thereforee the respondent sent the lawyer's notice dated 15th May, 1980 requiring him to vacate the premises, that he filed an eviction application for fixation of standard rent on 25th June, 1980 that his tenancy started from 1st July, 1978 which was renewed by another rent agreement dated 1st June, 1979. As regards existing accommodation with the respondent- landlord he stated, 'The ground floor comprises of 2 bed rooms, one drawing- cum-dining room, one kitchen converted into a prayer room, one big kitchen additionally built in the courtyard, one front verandah fully covered and used as third bedroom, one big back verandah fully closed and used as a full-fledged room, bath, lavatory and front and back courtyards. The description given by the petitioner in his application is not complete. Similarly, the accommodation at the second floor consists of one large room, one small room kitchen, bath and latrine, big open terrace a portion of which is now covered by temporary structure'. The petitioner has further alleged that the alleged need of (he respondent is not genuine, that his statement that he has a big family consisting of 18 members is not true, that he wants to rent out the premises occupied by him after getting the same vacated at a higher rent, that the premises were let on 1st, July, 1978 and since then there has been no change in the circumstances and as such the alleged requirement is not bona fide, that Amrik Singh, eldest son of the respondent is employed in Auto-Pins Factory at Faridabad on a good salary whose employer has provided him with a scooter, that his wife has been an insurance agent and makes a good addition to the family income, that he is said to be owning a plot of land for building a house, that he is the head of the family of seven persons holding ration card No. 94878, that he has been maintaining a separate establishment and that in these circumstances he is an independent and self-supporting family and that he is not dependent upon the respondent needing accommodation. As regards his second married son lqbal Singh, he has alleged that he is living on the ground floor as an independent head of separate family with his own ration card No. 94877, that he has been doing agency business from which there is lucrative return, that he constructed a Bungalow No. A-125, New Friends Colony, New Delhi and let out the same at Rs. 4000.00 per month in March, 1980, that in the face of these facts lqbal Singh cannot be treated as dependent upon the respondent requiring living accommodation. As regards Ravinder Pal Singh third son of the respondent the petitioner has alleged that he has been working with the respondent running a shop of tailoring materials at Western Extension Area, that he and the respondent are having ration card No 94876, that the accommodation with them is sufficient at the ground floor. As regards married daughter the petitioner has deposed that her need is not of a new occurrence, that it was so even when the premises were let, that the daughter is married in Delhi itself. The petitioner has further alleged that the respondent has other reasonably suitable accommodation. His plea is that the individuals from whom the alleged need is claimed, are not dependent upon him, that Bunglow No. A-125, New Friends Colony, New Delhi was being constructed in 1979, which was meant for their self- occupation, that the ground floor of the suit property i.e. B-10, Nizamuddin (West) was to be vacated and let out but when the bunglow at New Friends Colony was completed the same was let out.

(3) The respondent-landlord in reply has submitted that the verification of the affidavit was improper and thereforee the same deserves to be rejected, that the alleged grounds for leave to defend were vague and indefinite, that the second floor comprises of one room where Amrik Singh, his wife and five children had been residing, that he was not residing independently. The respondent has further alleged that the petitioner has been promising to vacate the premises by 31st March, 1981. The respondent has denied that there was any big kitchen on the ground floor. It has however been admitted that there has been small temporary corrogated sheets in the courtyard, that Barsati measures 121/2' X 101/2', that there is a small store attached to it, that the allegation of existence of kitchen, bath or latrine on the second floor is wrong, that there is an open urinal. As regards status of the sons the respondent admits that Amrik Singh is employed at Faridabad drawing a good salary, having a scooter, that his wife is an insurance agent that his younger son lqbal Singh constructed his house at A-125, New Friends Colony, New Delhi which was let out after completion in August, 1979 at Rs. 2200.00 per month, that the said house was constructed after obtaining a loan of Rs. 2 lacs from L. I.C., that the loan has to be repaid and thereforee the house was let out, that Ravinder Pal Singh, third son, has been working with him, that his married daughter with two children often visit him. The Rent Controller refused the petitioner leave to defend, observing that married sons having separate ration cards cannot be the basis for grant of leave, that if a person has an independent house which has been let out still that person is dependent upon his father, that even if the respondent's son is not dependent upon him, the entire accommodation was insufficient for him, The Controller held that the requirement of the respondent was genuine. As regards legal defect in the application he observed that on merits the petitioner had no ground.

(4) The respondent-landlord admits that his two sons are well placed and that his third son has been carrying on business with him. The income and status of his son has not been disclosed by the respondent either in his eviction application or in the reply to the application for leave to defend. The premises admittedly were let to the petitioner from 1st july, 1978 although the petitioner had been in occupation as an employee of Bharat Heavy Electricals Ltd. since 1974. Creation of a new tenancy in favor of the petitioner in July, 1978 amounts to determination of the previous tenancy in favor of Bharat Heavy Electricals Ltd. Creation of tenancy in July, 1978 means that there was no requirement of the respondent up to that time. The tenancy was renewed in June, 1979 which will also show that there was no requirement in June, 1979. The respondent's son constructed his house which was completed in August, 1979 and let out at Rs. 2200.00 per month. It is thereforee not clear what was the change in the circumstances during the period from July, 1978 to July, 1980 when the present eviction application was failed. On the contrary if a son is the owner of his own house which was completed at a time when the alleged requirement arose, it does not stand to reason that he should let out his own property and claim the eviction of the tenant under his father on the ground that he was dependent upon him. On the facts of this case it cannot be decided without going into evidence whether the two married sons of the respondents were dependent upon him for purposes of residence. Thus the first disputed question is : Whether the sons are dependent upon the respondent for residence and can their requirement be taken into consideration. In Shri Kishori Lal v. Sumitra Devi, 1979 (1) RLR 107 it has been held by this court that a son will be deemed to be dependent if he was not able to set up a separate residence.

(5) In Sultan Singh v. Jai Chand Jain and another, 1966 D.L.T. 62, it has been held that a son who is self-supporting and in a position to set up a separate residence cannot be said to be the dependent of his father. In Smt. Leela Wati v. Smt. Ganga Devi, : AIR1980Delhi209 it has been held that the question as to who were dependent members and as to whether or not the existing accommodation was sufficient for the landlady are questions that could not be decided without trial and that leave to defend could not be refused in these circumstances. The petitioner in his application for leave to defend has challenged the existing accommodation with the respondent. The petitioner has alleged that a big kitchen was built in the court-yard and that front verandah was fully covered and used as a bed room and that back verandah was also closed and used as a full-fledged room. On the second floor also according to the respondent there is one room, one store and open urinal but according to the allegations of the petitioner there is one large room, one small room, kitchen, bath and latrine besides a temporary structure, Thus there is a bona fide dispute regarding the existing accommodation available to the respondent. Besides this it has also been argued by the learned counsel for the petitioner that the house at A-125, New Friends Colony, New Delhi was available for the residence of the respondent or his sons but the same was not occupied and let out in August, 1979. It is not denied that the said house after construction in August, 1979 was let out at Rs. 2200.00 per month. The contention is that in those circumstances it cannot be said that the respondent has no other reasonably suitable residential accommodation. In other words, he says that if the accommodation at New Friends Colony is taken into consideration he has sufficient accommodation and that in any case the respondent is not entitled to an order of eviction for the alleged requirement of his son lqbal Singh, owner of the house at New Friends Colony, New Delhi. Learned counsel for the petitioner further submits that when the premises were let in 1978 and the eviction petition was filed in July, 1980 there was no change of circumstances and that to determine whether there was any change in the circumstances, it was necessary to record evidence. His argument has great force. It is not a case where leave to defend can be refused. If any allegation of the petitioner is deemed to be proved it seems the respondent would not be entitled to an order of eviction against him.

(6) Learned counsel for the respondent submits that the family of the respondent consists of 18 members, that they have been in occupation of the ground floor and the second floor which accommodation according to them is insufficient. It may be but the question is: What is the change in the circumstances and why the house at New Friends Colony owned by the son cannot be taken to be an accommodation available to the respondent or his son? There are as such disputed questions of fact and leave to defend can not be refused. It has been held by this court that if disputed questions of facts are raised and their decision is necessary to grant relief to the landlord, then those questions should not be decided on affidavits and leave to contest should be granted (See -.Mool Chand v. Ganda Ram, 1977 RLR 240, Kalyan Singh v. J.P. Gupta, 1977 RLR 242, Fateh Singh v. Hukam Chand, 1977 RLR 244, Smt. Bejoli Roy v. Amar Kumar etc. Raj. Law Reporter 464 R.C. Jain v. S.K. Gupta etc. 1979 RLR 560, Wing Comm. R.P. Jaiswal v. Hans Raj, 1979 RLR 17 and Dr. Shiv Nath v. Piarelal Sharma 1979 RLR 25. The issues raised by the petitioner in his application for leave to defend do not appear to be sham or frivolous and require consideration (See: Delhi Cloth & General Mills v. T. S. Bhatia, 1977 RLR 153.

(7) Lastly learned counsel for the respondent submits that the verification in the affidavit for leave to defend is defective and the same cannot be looked into. The verification in the petitioner's affidavit reads as follows ;-

'VERIFIEDat New Delhi, this 11th day of September 1980 that the contents of paras 1 to 8 of the aforegoing affidavit are true to the best of my knowledge and belief. sd/- D. N. Gupta, Deponent'

(8) It is true that under Order 19 Rule 3 of the Code of Civil Procedure statements of facts in affidavits must be prescisely verified as to which facts or paras are true or correct to knowledge and which true to belief upon information and if this is not done then the allegations are meaningless. The Rent Controller had taken into consideration the contents of the affidavit and I have also taken into consideration to arrive at a conclusion. It seems that there is power to allow amendment, if injustice is not caused to the opposite party and other party can be compensated with costs. The question is: whether the affidavit can be allowed to be amended subsequently. I am of the view that a party can be allowed to file additional affidavit removing the defect. The original affidavit cannot be allowed to be amended. If the affidavit for leave to detend is not properly verified the deponent must be allowed an opportunity to file another affidavit in accordance with law and it would not prejudice the right of the respondent. A similar question arise before me. In J. B. Kansal and others v. Waryam Singh 1981 (1) R.C.J. 206 where I allowed the heirs of the deceased tenant to file additional affidavit in support of the application for leave to contest. Accordingly, I hold that the verification in the affidavit of the petitioner is defective but I grant the petitioner an opportunity to file additional affidavit reproducing all his allegations contained in his affidavit dated 11th September, 1980 and verifying in accordance with law.

(9) The judgment and order of the Controller is not according to law. The revision is accepted and the order dated 30th September, 1980 of the Rent Controller in Eviction Case No. 426 of 1980 is set aside. The petitioner-tenant is granted leave to defend the eviction application. He shall file the additional affidavit as discussed above before the Additional Controller. Parties are directed to appear before the Additional Controller on 2nd December, 1981 on which date additional affidavit may be filed. No order as to costs.


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