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B.B. Gandhi Vs. Dharam Inder Madan and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 948 of 1981
Judge
Reported in26(1984)DLT233
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantB.B. Gandhi
RespondentDharam Inder Madan and ors.
Advocates: S.M. Grover and; P.N. Talwar, Advs
Cases ReferredSee Bipen Behari Twakley vs. Kishorilal Mehra and
Excerpt:
.....with whom he was employed as sub-divisional officer (irrigation department). so, he needed the premises in question for him self and members of his family which consisted of himself, his wife, two sons and one daughter as he wanted to settle in delhi after his retirement and bad no other accommodation in delhi. (3) he inter alias explained that the plot of land upon which the property in question was built bad been allotted to him and his father sh. (5) learned counsel for the petitioner has assailed the impugned order vehemently urging that the learned additional rent controller has failed to consider the true impact of the defenses sought to be raised by him in his application for leave to defend. the petitioner has simply denied the title of the respondent as owners of property..........need of respondent no. 1 arose in view of his impending retirement. the mere fact that standard rent of a premises has been fixed by the controller would not debar the landlord from seeking eviction of his tenant for ever and it is for the controller in each case to see whether the requirement of the landlord to occupy the premises in genuine and honest or not, and it is only when the tenant is able to disclose facts which would throughout on the bona fide of the landlord that leave can be granted. having regard to the fact that the landlord has even retired by now it can't be said by any stretch of reasoning that the eviction petition had been filed as a counter-blast. the assertion of the petitioner that the respondents would relent the premises at enhanced rent after getting the.....
Judgment:

J.D. Jain, J.

(1) This Revision Petition is directed against an order dated 29th August, 1981 of an Additional Rent Controller whereby he rejected the application of the petitioner or leave to defend and passed an order of eviction against the petitioner under clause (e) of the proviso to Section 14(1) of Delhi Rent Control Act (hereinafter referred to as the Act.).

(2) The facts giving rise to this Revision Petition briefly are that Sh. Dharam Inder Madan and Krishan Lal Madan, respondents 1 and 2 are real brothers and Smt. Indrawati, respondent No. 3 is their real sister. On 2nd December, 1980, the respondents made an application for eviction of the petitioner from the demised premises viz. a portion of first floor as detailed in para8 of the eviction petition of House No. 18/15, West Patel Nagar, New Delhi on the ground of bona fide personal requirement of respondent No. 1 as residence for himself and members of his family. It was an averred that respondent No. 1 was due to retire on 31st December, 1980 from the service of Haryana State Government with whom he was employed as Sub-Divisional Officer (Irrigation Department). So, he needed the premises in question for him self and members of his family which consisted of himself, his wife, two sons and one daughter as he wanted to settle in Delhi after his retirement and bad no other accommodation in Delhi.

(3) He inter alias explained that the plot of land upon which the property in question was built bad been allotted to him and his father Sh. Het Ram Madan by the Ministry of Rehabilitation on permanent basis and the building in question had been contracted with the funds of himself, his father and his brother Krishan Lal Madan respondent No. 2. Het Ram Madan died in the year 1966 leaving behind the respondents as his only legal heirs. However, by mutual arrangements between them respondent No. I was allotted the first floor, respondent No. 2 was allotted the ground floor and respondent No. 3 was allotted Barsati floor of the property in question. Accordingly respondents, 2 and 3 were receiving rent from the tenants occupying the ground floor and the barista while respondent No. 1 was owner/landlord of the premises in question. However, respondent 2 and 3 had been joined as parties to the eviction petition to avoid any possible objection of non-joinder of necessary parties, although no relief was claimed by the respondents 2 and 3 against the petitioner and they do not claim any right or interest in the first floor.

(4) Since the application was made under Section 14(1)(e) read with Section 25B of the Act notice was issued in the prescribed proforma and an application was made by the petitioner under Section 25B(4) for leave to Contest. It was duly supported by an affidavit staling the grounds on which he sought to contest the application for eviction. A rejoinder affidavit was filed by respondent No. 1. On a consideration of the affidavit filed in support of this application for leave to contest, additional Rent Controller came to the conclusion that it did not disclose any facts which would disentitle respondent No. I to an order of eviction on the ground of bona fide personal requirement. Hence, he passed the impugned order.

(5) Learned counsel for the petitioner has assailed the impugned order vehemently urging that the learned Additional Rent Controller has failed to consider the true impact of the defenses sought to be raised by him in his application for leave to defend. I have, thereforee, perused the said application myself but unfortunately for the petitioner I am unable to find any ground which would entitle him to leave to defend the eviction petition.

(6) The first ground on which leave was sought is that the respondents are not owners/landlords of the premises in dispute and as such they are not competent to maintain eviction petition under clause (e) of the proviso to Section 14(1). He denied that respondents were 'the joint owners of the premises in dispute and contended that the allegations made in the eviction petition in this respect were quite vague and confused.

(7) Evidently, this averment does not disclose any fact which would disentitle the respondents or for that matter respondent No. I to claim an order of eviction. The petitioner has simply denied the title of the respondent as owners of property but has not stated who the owners of the premises in question are It is now well settled that bare denial or vague and general allegations do not raise any triable issue as held by the Supreme Court in Precision Steel & Engineering Works vs . Prem Deva Niranjan Deva Tayal : [1983]1SCR498 it is obligatory upon the controller to grant leave if the averments in the affidavit disclose such facts which, if ultimately proved to the satisfaction of the court, would disentitle the landlord from recovering possession. Obviously, the facts disclosed by the tenant in his affidavit supporting the application for leave to defend, must be, positive and definite. Mere vague allegations or bare denial of the assertions made by the landlord would not be enough to justify grant of leave to defend. Reference in this context be made to Charan Dass Duggal vs. Brahmanand 21 1982 Dlt (SC) 378 and Mohan Lal vs . Tirath Ram Chopra and another Vol. : AIR1982Delhi405 . In the former case the Supreme Court observed that wholly frivolous defense may not entitle a person leave to defend. However, the Court sounded a note of caution that it must be borne in mind that when leave to defend is refused the party seeking leave is denied an opportunity to test the truth of the averments of the opposite party be cross-examination and rival affidavits may not furnish reliable evidence for concluding the point one way or the other. In the latter case a full Bench of this court. Observed that 'the defense sought to be raised must be clear and not vague, positive and not negative, specific and not a shot in the dark. Merely disputing the averments made by the landlord, in his petition under section 14(1)(e), or merely contending that none of the ingredients as mentioned in Section 14(1)(e) exists would not be sufficient to enable the tenant to the grant of leave. Such averments would be regarded as vague or bald allegations and they cannot be regarded as disclosure of facts as would disentitle the landlord from obtaining an order of recovery of possession.'

(8) That being the legal position the learned Additional Rent Controller was justified in taking the view that this ground was quite vague and indefinite. As regards respondent No. I being the landlord of the premises it would, no doubt, appear from the affidavit filed by the petitioner in support of this application for leave to defend that respondent No. 2 and not respondent No. 1 was his landlord because according to him he had earlier made an application for fixation of standard rent impleading only respondent No. 2 as a respondent. It would, however, appear that the petitioner paid rent to respondent No. 1 on some occasions and this fact has been specifically admitted by the petitioner in the counter affidavit filed by him in this court. Anyhow, the fact remains that even Bal Kishan, respondent No. 2, who is one of the petitioners has supported the averments made in the eviction petition and as such the plea raised by the petitioner that respondent No. 2 is his landlord would not cut any ice. Once it is found of course on the basis of averments made in the eviction petition and there being nothing in the affidavit of the petitioner to point out to the contrary, it can't be said that respondent No. 1 is not the landlord/owner so as to claim eviction of the petitioner on the ground of bona fide personal requirement.

(9) The second ground taken by the petitioner in his affidavit is that he had earlier filed an application for fixation of standard rent against respondent No. 2 and there upon the standard rent of the premises was fixed at Rs. 250.00 per month as against the contractual rent at Rs. 275 per month. So, according to him this petition for eviction is a more counter blast and has been filed with the mala fide intention of re-letting the premises at enhanced rent after getting the same vacated from him. This contention, too, does not raise any triable issue inasmuch as the application for standard rent had been made much before the present need of respondent No. 1 arose in view of his impending retirement. The mere fact that standard rent of a premises has been fixed by the Controller would not debar the landlord from seeking eviction of his tenant for ever and it is for the Controller in each case to see whether the requirement of the landlord to occupy the premises in genuine and honest or not, and it is only when the tenant is able to disclose facts which would throughout on the bona fide of the landlord that leave can be granted. Having regard to the fact that the landlord has even retired by now it can't be said by any stretch of reasoning that the eviction petition had been filed as a counter-blast. The assertion of the petitioner that the respondents would relent the premises at enhanced rent after getting the same vacated from him is a mere surmise, and a conjecture. There is neither any basis nor any justification for such apprehension because the only facts given by the petitioner in his affidavit are that earlier respondent No. 2 after getting vacated one portion on the ground floor of property in question had let out the same to one Sh. B. D. Talwar in the year 1977 at an enhanced rent of Rs. 150.00 per month. Similarly Barsati floor was let out to one Sh. J. K.. Chawla at Rs. 150.00 per month. Further according to him respondent No. 2 filed an eviction petition on the ground of bona fide requirement against Shri A. C. Kapur, tenant on the ground floor but the same was dismissed in or about 1975-76 on the ground that there was no such bona fide requirement and the eviction petition was motivated by a desire to open a Typewriting college in the premises. Thus, according to him after having failed in his evil designs respondent No. 2 has set up the requirement of respondent No. 1 on the plea of alleged an oral family arrangement between the respondents under which the first floor of the property in question fell to the share of respondent No. 1. In his reply affidavit respondent No. 1 admitted that the premises now in occupation of Sh. J.K. Chawla and Sh. B.D. Talwar had been let out at the rate of Rs. 150.00 per month but he controverter the plea of mala fide saying that his requirement has arisen subsequently and as such these facts have no bearing. As already observed, the present requirement of the respondent No. 1 for the premises in question is clearly attributable to his retirement from service the respondents could be justifiably expected to keep the ground floor premises of the property in question vacant from 1977 onwards just in anticipation of his retirement. As for eviction petition filed by the respondent No. 2 against Sh. A. C Kapoor the contention of the respondent is that the same was dismissed on a technical ground, i.e. non service of a valid notice to quit. Even otherwise he asserts that it had no bearing on his present requirement because as explained by him the ground floor has fallen to the share of respondent No. 2 under an oral family arrangement and he has nothing to do with the same. It is well settled law that the family arrangement may be oral in which case no registration is required. See Kale and others vs . Deputy Director of Consolidation and others : [1976]3SCR202 . That apart the family arrangement between the various owners being their internal affair the petitioner/tenant has no locus standi to challenge the same. See Bipen Behari Twakley vs. Kishorilal Mehra and others1981 (1) Rcr 386. Of course, he can contend if the circumstances so warrant that the alleged family arrangements is a mere subterfuge and a colourable device to seek his eviction. The circumstances of the case, as disclosed by the petitioner, even if taken at their face value, do not warrant such an inference and the respondents cannot be non-suited on these facts. Even assuming for the sake of argument that there has been no oral family settlement arrangement the retirement of respondent No. 1 as a co-owner landlord will still be quite legal and valid for eviction of the petitioner.

(10) Lastly, the contention sought to be raised by the petitioner was that the eviction petition is not for the whole of the demised premises and it being for partial eviction, was .not maintainable. However, be has not disclosed what additional accommodation formed part of his tenancy and this alleged too is woefully vague.

(11) To sum up, thereforee, I find that the learned Additional Rent Controller was perfectly justified in coming to the conclusion that the affidavit filed by the petitioner in support of his application for leave to contest did not disclose any facts would disentitle the respondents to an order of eviction.

(12) Faced with this predicament learned counsel for the petitioner has made a bold attempt to rely on subsequent events. His contention is that respondent No. 1 has since constructed a spacious house on a plot of land measuring about 300 sq. yds. at Faridabad and he is living there comfortably with this wife and his daughter who are the only members of his family. At present, both the sons, being employed are living else-where. It is, thus, urged, that the need of respondent No. 1 if any, for residential accommodation has been fully satisfied and he no longer requires the premises in question.

(13) In order to verify the correct position, I examined respondent No. 1 at some length. He explained that he had purchased plot No. 270/15, Faridabad on Installment basis way back in 1968 when he was posted as S. D. C. at Faridabad. However, a house has been built on the said plot by his sons under his supervision in the year 1983. The language of the brother of his deceased wife who has gone to Nigeria, is lying in a part of his house and his own luggage is also lying in a part thereof. He has, however, denied that he himself lives there. According to him, his wife is at present living with her parents at Delhi and his only daughter is living at Rohtak with her brother. He admits that he has been in the employment of M/s Jitendra Steel and Tubes Ltd., which has its registered office at B-231, Okhla phase-I New Delhi and factories at Faridabad as well as at Ballabhgarh. So, being a civil engineer he has to visit the factories of the said concern at both the places quite often in connection with the upkeep and maintenance of the factories but it is not possible for him to live alone at Faridabad as he is diabetic and an old person.

(14) It would no-doubt appear that the respondent No. 1 has since built a house at Faridabad where he can live comfortably, if he so wishes. However, he still insists that he wants to live at Delhi in the premises in question. His desire to live in the premises in question on his retirement from Government service can by no stretch of reasoning be called mala fide or fanciful, rather it was quite natural and genuine. He had no other premises either at Delhi or elsewhere when he filed this eviction petition. Certainly, his desire which was transformed into a legitimate requirement on his retirement cannot be said to have been satisfied merely because he bad to construct a house at Faridabad under compelling circumstances. The law does not require that a Government servant on superannuation must be on the road or at the mercy of someone else. He may justifiably seek eviction of his tenant through court. He decided to live at Delhi and merely because he has by now built another house at Faridabad would not mean that he can be forced to live there. He can certainly adhere to his previous decision, if I were to hold otherwise it may mean that in several cases a retired Government servant will never be able to live in his own house at Delhi, despite his genuine desire to live there afterall court proceedings more often than not, tend to protract over years and a landlord has to willy nilly make some provision for his residence till he is able to evict his tenant. In these circumstances he is not expected to explain why he would not like to live at Faridabad but even then he has done so. The facts speak quite eloquently for his genuine desire to live in the premises in question. At this stage, I am not called upon to give a positive finding one way or the other but I entertain no doubt in my mind that under the circumstances it would be highly unjust and unfair to force a retired Government servant to live at a place and in a house although belonging to him, against his desire. Certainly, his bonafide desire to settle at Delhi on retirement is not satisfied by availability of another house elsewhere.

(15) The up shot of the whole matter, thereforee, is that there is no merit in this revision petition. It is accordingly dismissed. However, the petitioner is allowed three months to surrender peaceful and vacant possession of the premises in question failing which the respondents can evict him through Court. Keeping in view all the facts of the case the parties are left to bear their own costs, through-out.


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