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Gurbux Singh Vs. Kishan Chand and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberC.R. No. 822 of 1979
Judge
Reported in18(1980)DLT36
ActsDelhi Rent Control Act, 1958 - Sections 14(1) and 25B
AppellantGurbux Singh
RespondentKishan Chand and anr.
Appellant Advocate S.K. Tewari, Adv
Respondent Advocate L.N. Batra, Adv.
DispositionPetition allowed
Cases ReferredDavid Brown v. Dr. Surjeet Singh and
Excerpt:
.....covered by section 14 (1) (e) - need based on forthcoming retirement of petitioner on 31.08.1980 - rent controller vide order dated 13.09.1979 dismissed petition as premature and granted respondent-tenant leave to contest - landlord cannot correctly estimate time during which petition for eviction likely to be decided - open to landlord to institute petition for eviction on ground of bona fide need likely to arise in foreseeable future - not many months left for retirement of petitioner - order dated 13.09.1979 set aside - held, rent controller to conclude trial and pass order expeditiously - petition allowed. - - , on a grievance in present must be applied wordingly and mechanically to the provisions in section 14(1)(e). a petition for eviction under this provision does not have to..........filing of the petition.3. after the grant of leave to contest, on this among grounds, the learned rent controller proceeded to consider the ground of prematurely of the eviction application, there and then and by an order of the same day, i.e. 13th september, 1979 found the eviction petition premature and dismissed the same. in the circumstances, no other ground came to be considered. it is against this order that the present petition has been preferred.4. the learned rent controller referred to the judgment of deshpande j., in david brown v. dr. surjit singh (1971) r. l. r. 52, as laying down the proposition that a petition which was likely to be decided long before the date of actual retirement of the landlord was premature and liable to be dismissed. he applied this ratio to the.....
Judgment:

Harish Chandra, J.

1. The petitioner is a landlord who filed an eviction petition against the respondents on 7th April, 1979 on the ground covered by clause (e) of Section 14(1) of the Delhi Rent Control Act. The need was based on the forthcoming retirement of the petitioner on 31st August, 1980. The respondents applied for leave and by an order dated 13th September, 1979 were granted leave to contest, on all grounds except those set out in paras 5 and 13 of the application for leave to contest.

2. One of the grounds on which the leave to contest was granted was the plea that the eviction petition was premature having been filed without a present cause of action as the date of retirement giving rise to the need of the premises was 31st August, 1980, more than one year after the filing of the petition.

3. After the grant of leave to contest, on this among grounds, the learned Rent Controller proceeded to consider the ground of prematurely of the eviction application, there and then and by an order of the same day, i.e. 13th September, 1979 found the eviction petition premature and dismissed the same. In the circumstances, no other ground came to be considered. It is against this order that the present petition has been preferred.

4. The learned Rent Controller referred to the judgment of Deshpande J., in David Brown v. Dr. Surjit Singh (1971) R. L. R. 52, as laying down the proposition that a petition which was likely to be decided long before the date of actual retirement of the landlord was premature and liable to be dismissed. He applied this ratio to the facts of the present case and held that the petition was premature as it was likely to be decided before 1st November, 1980, when the premises would be required by the landlord

5. There is no doubt that the words of Section 14(1)(e) leave no manner of doubt that the requirement of the landlord under the aforesaid provision must be a present and not a future requirement but this does not mean that this general rule of approaching the court when a cause of action has accrued, i.e., on a grievance in present must be applied wordingly and mechanically to the provisions in Section 14(1)(e). A petition for eviction under this provision does not have to be kept back from filing till the landlord has been driven to 'no accommodation' if not 'on the road'. Under this provision there cannot be an undue discount on prudence in moving the court well in time nor can there be an unmerited premium on approaching the court only after the event. All that needs to be ensured is that the contemplated need of the landlord is not based on his mere ipsi dixit but on a reasonably definite and provable even though future event and that the landlord is not enabled to obtain possession before such event comes to pass. No hard and fast line can be laid down as to when must be a petition be dismissed as premature and when can it be entertained and decided in accordance with the aforesaid principles but it cannot be emphasised enough that the Rent Controller is not bound to dismiss an eviction petition merely because the event on which the need is based has not yet come to pass.

6. In A. P. Madhavan v. M. P. Ram Chandran, (1970) All India Rent Control Journal 479, V. R. Krishna Iyer J., Judge of the Kerala High Court as he then was, had occasion to consider a case in which a school teacher posted at Perinthalmanna filed an eviction application on the ground of bonafide need for own occupation for a house owned by him in Pathiripala. The ground was based on the allegation that the owner teacher was expecting a transfer to Pathiripala and that he would be in real difficulty for suitable accommodation in that event unless he got back his own house. The learned Judge considered the opposition based on the ground that since on the date of the institution of the petition the landlord was a teacher in Perinthalmana and not at Pathiripala, he had set up only a future and not a present need in his eviction petition and that this was fatal. It was held :

'I must point out that the concept of need cannot be narrowly understood or pedantically interpreted but applied in a pragmatic way. The petitioner has really been transferred to Pathiripala, even as he had alleged in his petition. He must have reasonably expected a transfer and it might well be said that a need had arisen then. It is not necessary that there should be a current, urgent need. It is enough if it is reasonably likely to arise in the near future. Knowing that , between the institution of the petition and the ultimate order from the apex court years pass, it will be as good as repealing the provision for eviction on the ground of bonafide need, if courts insist on landlords proving a present need as against a prospective but certain need'.

7. In David Brown v. Dr. Surjit Singh, V. S. Deshpande, J. considered a case in which petition for eviction by the landlord was filed in November, 1968 basing the need on the forthcoming retirement of the landlord but the actual date of retirement was 17th August, 1971.

8. The learned Judge noted the words 'are required' occurring in Section 14(1)(e) and observed that by the use of the present tense it was intended that the need of the landlord for the premises must have arisen before he can apply for the eviction of the tenant on the ground that the premises are required by the landlord for his own residence. He further observed that no suit or petition can be filed unless and until the cause of action for the same has arisen and that it is liable to be dismissed as premature if it has not so arisen.

9. The learned Judge proceeded to consider ratio in A. P. Madhavan v. M. P. Ram Chandran (supra) and held :

'Proviso (e) of Section 14(1), has, thereforee, to be reasonably construed. On the one hand, the landlord may file the petition for eviction a short time ahead of the actual date of his retirement if the retirement would definitely take place before the decision of the petition in the trial court itself. For, in such a case the trial Court can be certain on the date of the decision that the landlord has retired and the petition is not premature. If the trial court takes such a view of the case and does not dismiss the petition on the ground that it is premature it would be difficult for the appellant Court to reverse such a decision on the ground that the petition should have been dismissed as premature particularly when the retirement would have taken place before the appeal is decided. On the other hand, the trial Court would be equally acting according to law if it were to construe Proviso (e) to mean that the requirement of the landlord must be a present one and not a future one. Of course, what is a present requirement would also have to be decided on the facts of each case. Generally speaking, the requirement would not be regarded as a present one if the landlord were not to retire very soon after the presentation of the petition and any rate before the decision of the trial Court was expected.'

10. P. S. Devgun v. S.P. Walia, (1975) All India Rent Control Journal 564, B. C. MisraJ. considered the aforesaid judgment in David Brown v. Dr. Surjeet Singh and observed that it does not lay down that the petition for eviction must in all cases be dismissed as premature if the landlord established to the satisfaction of the Controller that his need is not immediate but is likely to arise in future. Misra J. further observed :

'It is certainly not a rule of law that a landlord must find himself on the street before he moves the Controller for eviction. The landlord cannot correctly estimate the time during which his petition is likely to be decided and so it is open to the landlord to institute the petition for eviction on the ground that his need is bonafide and is likely to arise in the foreseeable future.'

The learned Judge went on to observe that :

'On the other hand, if the Controller finds that the need of the landlord has been established to be bona fide, but the need to physically occupy the premises is not likely to arise before the happening of some particular event or a particular date, e. g. the date of retirement, then, I am of the view, that it would be open to the Controller to specify the date before which the order for eviction passed by him would not be executable and he need not dismiss the petition as premature. It may be noted that Sub-section (7) of Section 14 requires the Controller to give six months time to the tenant to vacate, where he orders eviction on the ground of bona fide personal necessity and so, in my opinion, there is nothing in the law to prevent the Controller from fixing the date for delivery of possession longer than six months in appropriate case, where the justice of the case so requires.'

11. In my opinion, the learned Rent Controller erred in understanding the decision in David Brown's case as laying down any proposition contrary to the aforesaid view and in considering it his duty to dismiss the eviction petition only because it was likely to conclude before 1st November, 1980.

12. At any rate, it is now not many months to the date of the event on which the need has hinged. I, thereforee, set aside the order dated 13th September, 1979 by which the petition was dismissed as premature and direct that he may proceed with the matter from the stage after the grant of leave to contest on such grounds on which it was granted. The parties are directed to appear before the Additional Rent Controller on 19th May, 1980. The learned Rent Controller may conclude the trial and pass an order expeditiously.

13. The petition is allowed in the aforesaid terms with no order as to costs.


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