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S.K. Dey Vs. D.C. Gagerna - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 187 of 1982
Judge
Reported inAIR1985Delhi169; 26(1984)DLT438
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantS.K. Dey
RespondentD.C. Gagerna
Advocates: Madan Bhatia,; K.K. Gupta,; B.K. Pal,;
Cases ReferredDevi Dayal v. T. R. Malhotra
Excerpt:
tenancy - eviction - section 14 (1) of delhi rent control act, 1958 - petition for eviction against respondent-tenant on ground of bona fide personal requirement - contended that his father and mother are old persons living on first floor of suit property suffering from chronic disease and unable to walk and climb stairs - health of parents did not deteriorate with passage of time - severity of disease not grown - conduct of petitioner leave an impression that they are actuated more by extraneous considerations than by disease in seeking eviction - suggestion of exchange of first floor accommodation with ground floor accommodation not accepted by petitioner - petitioner's version is a make-believe story - petition dismissed. - - he asserted that the father of the petitioner was not a.....j.d. jain, j. (1) this revision petition is directed against order dated 12th of november 1981 of the rent controller whereby she dismissed the eviction petition filed by petitioner/landlord against the respondent/tenant as being without merit. (2) the undisputed facts of the case are that the petitioner is the owner/ landlord of premises bearing no. b-7/84, safdarjang enclave, new delhi. it is a two storeyed building. the father of the petitioner shri a. k. dey has been residing on the first floor since 1969 when the property in question was constructed. however, the ground floor has been let to different tenants from time to time. it was last let to the respondent on 1st january 1979 under an oral agreement of tenancy at rs. 700.00 per mensem exclusive of water and electricity charges......
Judgment:

J.D. Jain, J.

(1) This revision petition is directed against order dated 12th of November 1981 of the Rent Controller whereby she dismissed the eviction petition filed by petitioner/landlord against the respondent/tenant as being without merit.

(2) The undisputed facts of the case are that the petitioner is the owner/ landlord of premises bearing No. B-7/84, Safdarjang Enclave, New Delhi. It is a two storeyed building. The father of the petitioner Shri A. K. Dey has been residing on the first floor since 1969 when the Property in question was constructed. However, the ground floor has been let to different tenants from time to time. It was last let to the respondent on 1st January 1979 under an oral agreement of tenancy at Rs. 700.00 per mensem exclusive of water and electricity charges. On 24th July 1980 the petitioner filed an eviction petition against the respondent on the ground of bona fide personal requirement falling under clause (e) of the proviso to Section 14(1) of the Delhi Rent Control Act (in short 'the Act') read with section 25B of the Act.

(3) The petitioner averred that he formed a Joint Hindu Family with his father who is a retired Senior Specialist, Planning Commission and is about 80 years old. However he had been suffering from severe lumbar OsteoarthrIT is with spondee lolistless and osteoarthrIT is of both knees and ankles and so he is unable to walk and climb the stairs and has, thereforee, been advised by a panel of doctors of Safdarjang Hospital to live on the ground floor. Even the mother of petitioner, who is about 66 years old, is a patient or arthrIT is of a serious nature and is unable to walk steadily and ascend the stairs. It was, thereforee, contended that the first floor of the premises in question in which the parents of the petitioner had been residing was not suitable for their residence, Further, according to the petitioner, both his parents were dependent on him for residential accommodation, being members of his family and in order to ensure that they were looked after properly he wanted to send his wife over here from Calcutta, where he is presently employed, so that his parents get proper care and comfort in their old age.

(4) An application was made by the respondent-tenant under Section 25B(4) of the Act for leave to contest. He asserted that the father of the petitioner was not a member of his family, much less he was dependent upon the petitioner for his residence He pointed out that the parents of the petitioner bad been living separately and independently from the very beginning i. e. ever since the father of the petitioner retired from service. Both of them have independent source of income inasmuch as the father of the petitioner apart from being a Government pensioner is getting royalty in respect of a number of books written by him. He is even maintaining a car. He refuted the assertion of the petitioner that his wife would be living at Delhi to look after the care and comforts of the petitioner's parents. It was pointed out that the petitioner had been all along living in Calcutta where he was handsomely employed as a Senior Executive of a private company. Further, according to the respondent the eviction petition had been filed with the oblique motive to re-let the premises at an enormously higher rent because admittedly the chronic ailments from which the parents of the petitioner are said to be suffering existed even at the time when the premises in question were let to him i.e. the respondent and there was no supervening change in the circumstances of the petitioner's family which necessitated requirement of the ground floor premises.

(5) Leave to defend was granted to the respondent by the Rent Controller vide his order dated 13th November 1980 on grounds other than that the parents of the petitioner were not members of his family and were not dependent upon him for the purpose of residential accommodation. However, in the written statement filed by the respondent he reiterated this ground too. It was naturally refuted by the petitioner in his replication. Eventually, the eviction petition has been dismissed by the Controller, inter alia, on the ground that the need of the parents of the petitioner is not covered under clause (e) of the Proviso to Section 14(1) of the Act. Hence, this revision petition.

(6) The learned counsel for the petitioner has, at the very outset, invited my attention to the fact that only restricted leave to defend was allowed to the respondent and as such it was not open to the Rent Controller to go into the question whether the parents of the petitioner were members of his family and were dependent upon him for the purpose of residential accommodation. In other words, the respondent was not entitled to raise an issue on this point in view of the restricted nature of the leave granted to him to defend the eviction petition.

(7) On a perusal of the order dated 13th November 1980 the contention raised by the learned counsel for the petitioner seems to be well founded in so far as it relates to leave to defend on the ground of the parents of the petitioner being members of his family and being dependent upon him for residence. Para 5 of the said order specifically refers to this ground. It is extracted below for ready reference :

'THUS on the basis of the above pleas, the respondent is entitled to leave to contest. As regards the plea of petitioner's father having independent source of income, the leave cannot be granted and this plea cannot be accepted........ The dependence for the accommodation purposes also comes within the purview of the dependence of a member upon the landlord. The respondent has not taken the plea that parents of the petitioner also own a house of their own. Thus, parents of the petitioner are dependent upon him for accommodation purposes if not financially. The leave is granted in terms of the above order.'

(8) It is thus manifest that while granting leave the learned Rent Controller restricted the same to pleas sought to be raised by the respondent other than that relating to the parents of the petitioner being members of the family of the petitioner and being dependent upon him for residential accommodation. Strictly speaking, thereforee, no issue could be raised by the respondent on this point. However, as stated above, he did urge this ground in his written statement and even the petitioner, taking note of it, refuted the same. While reiterating the averments made by him in the eviction petition, he asserted that he and his father constituted Joint Hindu Family and unless there was a petition is must be deemed to continue as such.

(9) In its recent decision in Precision Steel &Engg.; Works and another v. Prem Deva Niranjan Deva Tayal, : [1983]1SCR498 while dealing with the relative scope of granting leave to defend under Order xxxvII Rule 3(5) of the Code of Civil Procedure and sub-section (5) of Section 25B of the Act, the Supreme Court observed that :

'MEREdisclosure offacts, not a substitute defense is the sine qua non. Further the Court can grant conditioned leave or leave limited to the issue under order xxxvII Rule 3(5). There is no such power conferred on the Controller under sub-section (5) of Section 25B.'

(10) On a bare reading of this observation it is manifestly clear that the controller is not competent to grant restricted leave i.e. leave limited to any particular issue. In other words, whenever the Controller is satisfied that the respondent/tenant is entitled to leave to contest on one or more of the grounds disclosed in his application for leave to defend, such leave would be deemed to be unrestricted and untrammelled by any kind of fetters and it would be open to the respondent/tenant to take up whatever pleas are available to him under law in his written statement. The submission made by the learned counsel for the respondent however, is that the aforesaid observation of the Supreme Court being in the nature of obiter dictum cannot be looked upon as a precedent to be binding on this Court or for that matter the Controller. According to him, the question whether restricted leave or leave limited to any particular ground can or cannot be granted by the Controller was not before the Supreme Court and it was only incidentally that while comparing the relative scope of the provisions contained in Order xxxvII Rule 3(5) of the Code of Civil Procedure and sub-section (5) of Section 25B of the Act that the Supreme Court expressed the aforesaid opinion. Reliance in this context has been placed on H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur and Others v .Union of India, : [1971]3SCR9 , wherein it was observed by the Supreme Court that:

'THE Court was not called upon to decide and did not decide that Article 366 (22) was a provision relating to covenant within the meaning of Article 363. It is difficult to regard a word, a clause or a sentence occurring in a judgment of this Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment'.

(11) On a consideration of the matter, however, I do not feel persuaded to subscribe to the view taken by the learned counsel for the respondent. It is for the simple reason that the Supreme Court was specifically dealing with and expounding the true ambit and scope of the provisions of sub-section (5) of Section 25B of the Act and while interpreting the same it was natural for the Court to lay down the necessary guidelines to be followed by the Controllers and for that matter even this Court at the stage of revision etc. while dealing with the question of leave to contest. Hence, the aforesaid observation can by ao stretch of reasoning be said to be in the nature of Obiter dictum.

(12) If that be so, it would follow as a necessary corollary that order of the controller granting restricted leave was bad in law. Anyhow as the order stood, the ground that the parents of the petitioner were not members of his family and were not dependent on him for the purpose of residential accommodation, could not be taken up by the respondent in his written statement. But, the fact remains that he did raise this plea as a ground of defense and it was suitably replied by the petitioner. It is, however, contended by the learned counsel for the petitioner that this ground being a non-issue he did not lead evidence thereon and as such he has been seriously prejudiced by the findings of the Controller that the parents of the petitioner, for whom the accommodation comprised in the premises in question is required, are not dependent members of his family. In particular, he has urged that had he been aware that the Controller would be inclined to consider this plea of the respondent he would have surely adduced ample evidence to establish that this parents were members of his family, theirs being still a Joint Hindu Family and that they were legitimately dependent upon him for residential accommodation. Technically speaking it is difficult to brush aside this argument lightly. However, while browsing through the entire evidence on record, I find that the petitioner was well aware of the defenses sought to be raised by the respondent in his written statement including this particular defense and both of them led evidence upon all the grounds taken up by the respondent. For instance, the petitioner as well as his father has deposed that they constitute Joint Hindu Family and that the father of the petitioner has been looking after and managing the property in question as an attorney of the petitioner. Indeed, the father of the petitioner went to the extent of saying that the property in question is Joint Hindu Family property. Even otherwise all relevant facts which could be pressed into service by any of the parties have come on record and I am not convinced that any prejudice has been caused to the petitioner resulting in miscarriage of justice because in view of the order of the Rent Controller granting restricted leave he was labouring under the impression/belief that no controversy subsisted regarding this plea and it was not open to the Controller to return any verdict on the question 'whether the parents of the petitioner were members of his family and as such were dependent upon him for the purpose of residential accommodation'. It is well settled that where both the parties are fully conscious of the points in issue and they adduce evidence at the trial relating to all the points in controversy they cannot turn round and make a grievance of the fact that no issue existed on a particular point in controversy, The instant cannot be said to be a case of miss-trial or miscarriage of justice resulting from the restricted leave given by the Controller to the respondent to defend. As shall be presently seen, ample evidence relevant to the decision of the points in issue has come on record. Hence, no useful purpose will be served by remand of the case on this rather hyper-technical ground.

(13) As stated above, there is absolutely no controversy with regard to (i) the petitioner being owner and landlord of the premises in question; and (ii) the letting purpose, viz, residential, However, there is serious controversy regarding the other ingredients of clause (e) viz., the premises are required bona fide by the petitioner and that he has no other reasonably suitable residential accommodation. Under clause (e) of the proviso to sub-section (i) of Section 14 the landlord may require the premises for occupation as a residence (a) for himself; or (b) for any member of his family dependent upon him; or (b) for any person for whose benefit the premises are held. The expression 'himself' has been construed liberally having regard to the social set up so as to include the family of the landlord also. It is for the simple reason that the requirement of the landlord that the members of his family, who were at a given time living with him, should continue to live as before is his own requirement. In other words, the necessity of the landlord includes the necessity of the persons living with him as family members. This is settled by a long catena of reported decisions and I need not advert to the same. As for the second eventuality the premises can be got vacated by the land lord even for members of his family who are not normally accustomed to live with him or for any pressing reason are unable to live with him but who are dependent on him for residence. In Bhagwan Dass v. Smt. Shakuntala Devi, C.R. 411-D of 1961, it was observed by G.D. Khosia C. J. of Punjab High Court that :

'THE contention of the learned counsel for the petitioner is that the plaintiff's husband is not dependent upon her and that he is the earning member of the family, and it also follows from this that none of five children are dependent upon the plaintiff, because in reality they are dependent upon her husband. A correct reading of clause (e), however, means that where the landlord (or the landlady as in this case) requires the premises for his own use, then 'his own use' means the use of himself and the members of his family. The second part of the clause only comes into operation when the landlord does not intend to reside in the house himself but places it at- the disposal of the member of his family. In that case it is essential that that member must be dependent upon him, otherwise the decree of ejectment will not be made.'

(14) This observation of Khosia, C. J., was quoted with approval by I.D. Dua, C.J. in T.C. Rekhi, Proprietor, Central Court Hotal, New Delhi v. Smt. Usha Gujral 1970 RCR 292. The same view was expressed by P. N. Khanna, J. in Shri Sain Dass Berry v. Shri Madan Lal Puri 1971 RCR 887. Said he in an oft quoted passage:

'THE phrase 'or for any member of his family dependent on him' occurring in the clause is designed to meet an altogether different objective. If the landlord himself is not to reside in the premises, as for instance, when he lives outside Delhi, he still is entitled to claim ejectment of his tenant, if the premises are required 'f'or any member of his family dependent on him' or 'for whose benefit the premises are held'. Ejectment in such a case may not be claimed, if the requirement is for a family member, who is not dependent on the landlord; or the premises are not being held for his benefit.'

(15) Reference in this context be also made to Prem Sheel Malhan v. R. P. Chawlaetc.(LRs.).Som Nath Katyal,, Chand Kumari, D.N. Abbi 1974 RLR 522. in which Sachar, J. observed that :

'IN the eventuality of (b) above, the premises could be got vacated if they were required for occupation for any member of the family dependent on landlord, even if landlord did not intend occupying it.'

(16) This being the settled law it is obvious that the landlord has to satisfy two conditions precedent before he can take recourse to the second part of the above clause, viz. that the person for whose occupation he requires the premises bonafide, (i) is a member of his family; and (ii) is dependent on him. It is only when he satisfies both these postulates that he would be entitled to an order of eviction against the tenant.

(17) The word 'family' has not been defined in the Act. However, there is almost judicial concensus that the expression 'family' is elastic and its ambit has to be determined taking into account all the circumstances of the case having regard to the habits, ideas & socio-confine milieu of the parties. lo Prece v. Gould &, Others 46 Tlr 411, Wright, J., observed :

'IT has been said in a number of Equity cases, relating principally to wills or to settlements under powers of appointment, that the word 'family' was a popular, loose, and flexible expression, and not a technical term. It has been laid down that the primary meaning of the word 'family' is children; but that primary meaning is clearly susceptible of wider interpretation, because the cases decided that the exact scope of the word must depend on the context and the other provisions of the will or deed in view of the surrounding circumstances'.

(18) The learned Judge was considering the meaning of 'family' as appearing in Section 12 of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. He went on to say that 'the word 'family' includes brothers and sisters of the deceased living with her (i.e. the tenant) at the time of her death. I think that meaning is required by the ordinary acceptation of the word 'in this connection' and the legislature has used the word 'family' to introduce a flexible and wide term.'

(19) The aforesaid observation of Wright J. has been quoted subsequently with approval by both English and Indian Courts. (See, for instance, Ram Pershad Singh v. Mukand Lal, ), Mrs. G.V. Shukla v. Shri Parbhu Ram Sukhram Dass Ojha 1963 PLR 256 and Shri Gobind Das and Others v. Shri Kuldip Singh 1970 RCJ 742, in which a Division Bench of this Court dwelt on the subject at considerable length. Prakash Narain, J. (as his Lordship then was) speaking for the Bench said:

'THE concept of what constitutes a family when a number of persons are related or are living together is not something static or capable of concise definition. What constitutes a family in a given set of circumstances or in a particular society depends upon the habits and ideas of persons constituting that society and the religions and socio-religious customs of the community of which such persons may belong.'

(20) In the context of the facts before their Lordships, the learned Judge observed

'IN the socio-religious structure of Hindu society it is common for all the members of a family of brothers to live together while some men folk in the family may go out of town to earn a livelihood and even remit their earnings to the family. One cannot shut one's eyes to this structure of our society and so to give a restricted meaning to the work 'dependent' would be to provide a definition of this word where the legislature has advisedly chosen not to do so.'

(21) It is thus well settled the term 'family' must always be liberally and broadly construed so as to include near relations of the head of the family. Of course, there cannot be a set formula as to what width or narrowness should be applied in ascertaining the contents of any particular family and the extent of the boundaries of the family would depend on particular facts of each case. The contention of the learned counsel for the petitioner is that the petitioner and his parents constitute a Joint Hindu family and the presumption is, until the contrary is proved, that the family continues to the Joint. There is considerable merit in this contention. The petitioner belongs to the Hindu community where the normal concept is that of a Joint Hindu Family and there is a strong presumption in favor of Hindu father and son constituting a joint family. So, it is for the persons alleging severance of the Joint Hindu Family to establish it. Needless to say that the provisions of the Act do not effect any change in the personal law of the landlord. So even if the father and son are living separately at a given time on account of some compelling reasons, say exigencies of service or business, disruption of the Joint Hindu Family cannot be readily assumed. The mere fact that the father or the son leaves his household and goes out for earning a livelihood the family bond or for that matter jointness of the members of the family is not snapped. In other words, the family tie still remains intact. It is true that in most of the cases under the Act, emphasis was laid on the expression 'normally accustomed to live with the landlord' but obviously the said consideration weighs heavily where eviction of the tenant is sought on the ground that the landlord requires the premises for himself because in that event the requirement of the landlord is supposed to include that of his family members also who normally live with him. However, as stated above, joint living is not a must when eviction is sought on the basis of bona fide requirement of any member of his family dependent on him. Indeed, such a situation is inherent in the eventuality of (b) above. Hence, I entertain no doubt in my mind that notwithstanding the fact that the petitioner and his father have been living separately for over a decade they still constitute a joint family. This conclusion is further borne out by that the fact the parents of the petitioner have been living on the first floor of the property in question ever since its construction in 1969 and the petitioner himself has been living on the second floor of the premises bearing No. 17, Lake Temple Road, P.S. Tollygunge, District 24 Parganas in West Bengal which belongs to the mother of the petitioner. This is quite evident from copy of the judgment dated 22nd February J 9?3 of a Subordinate Judge, Alipore, in title suit No. 31/78, Smt.Gouri Dey v. Shri Krishan Kumar Mehta which has been placed on record of the appellate court by counsel for the petitioner at the instance of the counsel for the respondent. It clearly shows that the bond of joint family has not yet evaporated and very much subsists till today. Hence, I find that the parents of the petitioner are member of his 'family' as envisaged in the Act.

(22) However, the most crucial question which falls for determination in this case is whether the parents of the petitioner can be said to be dependent on him for residential accommodation. The word 'dependent' again has not been defined in the Act and, thereforee, it will have to be construed on a commonsense view of the matter having regard to the socio-religious structure of the Hindu society. Its interpretation must have relation to existing facts and circumstances proved on record of the case. Generally speaking the word 'dependent' may connote economic dependence. However, as observed by Falshaw, C.J' in C.L. Davar v. Shri Amar Nath Kapur 1962 Plr 521 :

'THE word 'dependent' cannot be construed as meaning nothing but wholly dependent in the sense of not earning anything at all and being entirely dependent on the father for board, lodging and food. The term must be construed as meaning somebody not wholly independent or self-supporting and in a position to set up separate residence. Dependence may not in all circumstances be entirely a matter of finance.........'

(23) The construction placed by Falshaw, C.J. on the word 'dependent' has been quoted with approval time and again in various subsequent decisions under the Act. I have already culled out above the observation made by the Division Bench in Gobind Das & others v. Kuldip Singh (supra) in this context. It would thus clearly emerge that a member of the family of a landlord need not be financially dependent and his dependence may be for various other reasons, for instance, of health, moral responsibility to look after aged parents and the like. So, we have to look at the facts of the instant case taking in view this broad interpretation of the word 'dependent'.

(24) Indisputably the petitioner and his parents have been living separately for over a score of years. During his cross-examination the petitioner admitted having been posted at Calcutta since 1958. His wife and his children have also been living with him there all along except, of course, for brief visits which they might have paid to the parents of the petitioner sometime or the other. The father of the petitioner is said to be an eminent and renowned Geologist. He retired from Govt. Service in 1957. He was then holding the post of a Director in Oil and Natural Gas Commission, a Govt. of India Undertaking. He then got an assignment as Head of the Department of Geology, University of Utkal (Cuttack). Still later, he joined the Planning Commission sometime in 1963 as a Senior Specialist. Thereafter he joined Aligarh Muslim University in August 1967 as a Scientist to carry on geological research. Even now his services are frequently requisitioned by the Union Public Service Commission and other private and Govt. bodies in advisory capacity. He is author of many a book and is earning royalty there from. He is a Chairman of the Mineral Clubs of India. He is also a fellow of the National Academy of Sciences of India. He is maintaining a car. It is thus abundantly clear that he is a man of social standing and status. Admittedly he has been living in the premises in question since 1969 when the house in question was constructed. He is thus financially very well off. Even his wife is having rental income of about Rs. l,000.00 1,100.00 per month from her afore- said property i.e. 17, Lake Temple Road. Thus, both husband and wife are self supporting and are having an independent establishment of their own since long. It is nobody's case that the petitioner has contributed even a single penny towards their household or other expenses. Under the circumstances, he cannot be said to be dependent upon the petitioner for residence. The mere fact that he has been residing in a portion of the house belonging to his son for over a decade would not warrant an inference that he is dependent on the petitioner for residential accommodation and all that may be said is that his son is nice and good to him in providing residential accommodation at Delhi. In this view of the matter, I am fortified by the decision of this Court in Prem Sheel Malhan v. R. P. Chawla (supra) in which Rajinder Sachar, J. was confronted with almost similar situation. In that case, the landlord Shri Malhan was a Govt. Servant. At the relevant time he was posted at Bombay and was living there with his wife. His other family members consisted of his father, mother, four brothers and three sisters. Those persons were living in a rented house in Delhi, The demised premises were required for occupation by the landlord not for himself but for the of his father, mother, brothers and sisters, It was not disputed that if the requirement of the family was to be considered as a whole the existing accommodation with him was insufficient. However it was quite sufficient so far as the landlord and his wife were concerned. Under these circumstances ; Sachar, J. observed :

'IN the present case the appellant and other members of the family are living at separate places and no such dependency arises. Dependency cannot be stretched to include the need of any other member of the family simply because he needs accommodation, when he is not dependent on the owner of the house. To stretch the interpretation of the meaning to be given to the word 'dependent' in such a manner would make the second part of the clause otiose because this would mean that if any relation of the owner, even if totally independent financia.lly would be covered within the meaning dependent on the facile reasoning that as he is in need of accommodation he should be deemed to be dependent for that purpose on the landlord. The interpretation is against the plain meaning of the clause and against the very purpose, is and would run counter to the meaning of dependent accepted by this Court, and cannot be accepted.'

(25) I am in respectful agreement with this observation which, in my view, would apply on all fours to the facts of the instant case. In Sultan Singh v. Jai Chand Jain 1966 Dlt 62, Mehar Singh, J., (as he then was) of Punjab High Court held that : a son who is self-supporting and in a position to set up a separate residence, cannot in the circumstances be said to be the dependent of his landlord father.'

(26) Reference may also be made in this context to Devi Dayal v. T. R. Malhotra 1970 R. C. R. 1048, in which the first son of the appellant/landlord was a Captain in the Indian Air Force and was drawing a salary of more than Rs. 1.200.00 per month. He was not residing with his parents. So, it was held by Tatachari, J., (as his Lordship then was) that : 'he was not a dependent member of the family of the appellant/landlord'. On a parity of reasoning, the second son of the landlord who was also employed in the Army and was drawing a salary of about Rs. 600.00 per mensem and was residing outside Delhi was not regarded as a dependent member of the family of the landlord. The third son of the appellant, a Divisional Superintendent at Allahabad where he was residing with his family too was not regarded as a dependent member. His fourth son Jai Dayal was living in a separate and independent fiat which belonged to the appellant/landlord. He was employed in Delhi University. So, he too was held to be not dependent on the landlord. The following observation of his Lordship in the said case are very pertinent to note :

'ON the facts and evidence in the present case, it cannot be said that the appellant-landlord and his wife need the presence or company of Jai Dayal in their own residence, and in considering the requirement of the landlord and his wife the requirement of Jai Dayal cannot be taken into consideration.'

(27) The instant case stands on a much better footing for the respondent tenant. in that the parents of the petitioner have been maintaining a separate establishment for over a score of years and they are financially well off and self-supporting. So, they cannot be said to be dependent on the petitioner for residence. The fact. that they are already in occupation of the residential accommodation provided by the petitioner, would hardly make any difference and nothing turns upon this fact while considering whether they are dependent members of the petitioner's family.

(28) It was perhaps consciousness of this inherent weakness of his case that impelled the petitioner to fortify his bona fide requirement by taking up the further plea that his wife and children would shift to Delhi and live on the first floor in order to look after his aged and ailing parents, who out of sheer necessity and compelling reason of ill-health want to shift to the ground floor. That this plea is a just concocted and make-believe story would be apparent from the fact that admittedly the petitioner has been residing with his wife and children at Calcutta since 1958. Both his sons are now studying in good schools there, the elder being a student of higher secondary classes. Neither the wife of the petitioner nor any of his sons have shifted to Delhi so far. It may be said that they could not do so due to paucity of accommodation at Delhi but one cannot be oblivious to the fact that admission to a good school or a college at Delhi is itself a big problem, it being very difficult to secure admission to a good school or college. That apart, it does not appeal to reason that the petitioner would disrupt his own family life to which he has been accustomed all these years just to look after his ailing parents. This story fails to inspire confidence and belief when one looks to the additional circumstance that the mother of the petitioner has already obtained an order of eviction against her tenant Shri Krishan Kumar Mehta, who is living in a portion of the first floor of her house at 17, Lake Temple Road. The precise ground on which the eviction order has been secured is that both she and her husband are old persons and they find it difficult to climb up by using a narrow spiral staircase which leads to the portion of the first floor in her occupation. Moreover, it was urged that the existing accommodation with them at Calcutta was not sufficient having regard to the status of her husband who is a renowned and a highly qualified Geologist and who needs sufficient accommodation for his big library. The petitioner when cross-examined with regard to the suit for eviction filed by his mother against her tenant in Lake Temple Road house feigned ignorance by saying that he did not know if the ground for eviction was that she and her husband wanted to settle down at Calcutta after the retirement of her husband However, he is totally belied in this by the judgment of the trial court in the aforesaid suit. A perusal of the judgment would show that he appeared as a witness to support the case of her mother. It is true, as stated by learned counsel for the petitioner, that the aforesaid order of eviction has not become final inasmuch as an appeal filed by the defendant-tenant therein against the said judgment is still pending. However, there can be no shadow of doubt that the testimony of the petitioner and for that matter of his father cannot be accepted at its face value and it has to be swallowed, if at all, with a grain of salt. I have, thereforee, no hesitation in saying that the petitioner has not approached the Controller, in the instant case, with clean hands. He suppressed the factum of his mother seeking eviction of her tenant from her house at Calcutta. It was by sheer diligence and watchful eye that the respondent-tenant has been able to discover the truth. It is certainly a vital circumstance which would cast grave doubt on the bonafides of the petitioner in requiring the premises in question for the residence of his parents. Needless to say that the landlord has to satisfy the Court objectively that his requirement is not only genuine but also honest. The conduct of the petitioner in suppressing this important fact certainly militates against his bonafides. So, his eviction petition is liable to be thrown overboard on this ground too.

(29) Finally, the learned Controller has expressed the view that the father of the petitioner was suffering from the same ailments and diseases, which are chronic in nature, even at the time when the respondent was inducted as a tenant in the premises in question i.e. 1st January 1979. However, he chose to let out the premises not withstanding the severity and the chronic nature of his ailments. All the same, the petitioner hastened to file the eviction petition against the respondent only about a year and nine months after the inception of the tenancy. This, according to the Controller, casts grave doubt on the bona fides of the petitioner in seeking eviction of the respondent. The Controller has also adverted to a letter dated 2nd December 1979, Ex. Rx, which was written by the father of the petitioner to the Resident Director of the Company, in which the respondent is employed, in this context. A perusal of the said letter would show that he complained of the conduct of the respondent in giving himself out as a senior executive of the said Company and also creating an impression in the mind of the petitioner's father that the premises were required on lease by the said Company and not the respondent personally. However, subsequently the respondent came out with a draft agreement which appeared to the father of the petitioner as weighty in his (i.e. tenant's) favor and as such the same was not acceptable to him (i.e. petitioner's father). The latter also pointed out that the accommodation in the occupation of the respondent could conveniently fetch about Rs. 900.00 per mensem. Of course, he talked of his own chronic ailment also to urge upon the Company that the respondent be persuaded to vacate the premises in question.

(30) Dr. H.C. Goyal, who is an Assistant Director, Deptt. of Rehabilitation, Seafaring Hospital, examined the father of the petitioner in June 1980 and he issued certificate AW2/1 slating that he (i.e. father of the petitioner) was suffering from severe lumbar OsteoarthrIT is with spondee lolistless L4 over L5, with OsteoarthrIT is of both knees and ankles. These diseases, according to him, cause difficulty in walking and climbing stairs. So, he recommended that ground floor accommodation would suit him. Dr. Goyal reiterated in court that with the said disease Dr. Dey could not climb up the stairs. He went to the extent of saying that 'if he climbs the stairs the rate of progression of the disease will be more.'

(31) It is no doubt true that Dr. Dey himself admitted that he had been suffering from the said ailments for about 10 years but that would not imply that there could he no deterioration in his health and the severity of the disease could not grown with the passage of time. So, I have no reason to doubt the correctness of the medical opinion in this behalf. All the same, the whole conduct of the petitioner and his father is such as to leave an impression that they are actuated more by extraneous considerations than by disease of the petitioner's father in seeking eviction of the respondent. However, with a view to satisfy myself that the need of the petitioner is genuine and honest, I made a suggestion during the course of hearing that the petitioner exchange the first floor accommodation with the ground floor accommodation which are almost identical. The suggestion was obviously aimed at satisfying the need of the petitioner's parents for ground floor accommodation having regard to their old age and the kind of disease from which they were suffering. However, the suggestion did not commend itself to the petitioner even though the respondent tenant was agreeable to the same. The learned counsel for the petitioner stated that he wanted the entire property in question because the wife and children of the petitioner were intending to shift to Delhi to look after his aging and ailing parents. As observed earlier, this part of the petitioner's version is nothing but tomfoolery and a make-believe story. Hence, looked at all these facts cumulatively it is not possible to take exception to the view expressed by the trial Court that the petitioner does not require the premises in question bona fide.

(32) The upshot of the whole discussion, thereforee, is that this revision petition is devoid of any merit. It is accordingly dismissed with costs. Counsel fee Rs.1,000/'.


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