CHHATU THAWANI v. KAPOORI DEVI — 1965 DIGILAW 29 (DEL)

S. K. Kapur, J. ( 1 ) THIS is an appeal filed by tenants Chhatumal Thanwani and Ruchi Ram against the judgment of Rent Control Tribunal, Delhi, dated the 3cth of July 1964 under section 39 of the Delhi Rent Control Act, 1958. ( 2 ). The landlady is Smt. Kapoori Devi respondent. In January 1948 the entire second floor of the three storeyed house situate at 87. Darya Ganj, Delhi, was let to the 3. ppellants as tenants. The respondent filed a suit for possession on 3rd of November 1950 infer alia on the ground that the appellant had sublet the premises. The suit was dimissed on the 30th July 1951. An appeal taken to the Court of the Senior Subordinate Judge also failed and was dismissed on the 28th of March 1952. The present petition was filed by the respondent under section 14 of Delhi Rent Control Act 1958 (Act 59 of 1958), after notice through her lawyer for recovery of possession of the premises. The eviction was sought on the grounds of (a) non-payment of rent since 1st April 1959; (b) subletting without the prior consent of the landlady and (e) bona fide requirement by the landlady for the residence of herself and her faimly members. In paragraph 16 of the written statement it was alleged by the appellants that the respondent had already filed a suit for ejectment on the ground that the respondent had sublet the premises to one Gopi Thawani and therefore the present suit was barred on the principles of res judicata. In the first suit the landlady did net ask for possession on the ground that. she required the premises for her residence or for the residence of her family members. The appellants denied subletting and also disputed the claim of the landlady that she required the premises. It was further alleged that the landlady had three rooms with court-yard, kitchen. Bath-room and latrine, and that she had let out three rooms on the ground floor adjacent to the portion in her occupation to one Mr. Tandon and his son-in-law, about 6 months earlier and had let out another portion to one Mr. Sharma about 12 months earlier. On the basis of these facts it was contended by the appellants that her plea of bona fide requirement was not valid and did not merit consideration. Tandon and his son-in-law, about 6 months earlier and had let out another portion to one Mr. Sharma about 12 months earlier. On the basis of these facts it was contended by the appellants that her plea of bona fide requirement was not valid and did not merit consideration. On the 16th of April 1960 the Rent Controller struck out the appellants defence after three witnesses had been examined on behalf of the respondent. The remaining witnesses of the respondent landlady were examined ex-parte and one of such witnesses was Babu Ram P. W. 5, the husband and the attorney of the respondent. On 27th of April 1960 the Rent Controller ordered the eviction of the appellants ex-parte on grounds of non-payment of rent and personal requirement. The order dated the 16th of April 1960 striking out the defence of the appellants was set aside in appeal by the Rent Control Tribunal on 24th of January 1961 and the Tribunal directed the retrial of the case from the stage, at which it was, immediately before the striking out of the defence. The evidence was then recorded second time and Babu Ram husband ef the landlady respondent appeared again as a witness. By order dated the 21st December 1963, the Rent Controller dismissed the application for ejectment. The Rent Controller did not accept the plea of the respondent landlady that she was suffering horn rheumatism and needed the premises in dispute because the promises in he occupation was damp and not suitable for such a patient. He also held that even otherwise the landlady did not require the premises in dispute. On appeal by the respondent to the Rent Control Tribunal, the order of the Rent Controller was reversed and six month s time was given to the appellants-tenants to vacate the premises. The Rent Control Tribunal inter alia held that the accommodation in possession of the respondent- landlady was quite insufficient for the needs of the landlady and the dependent members of her family and that her ailment necessitated a more sunny place, than the ground floor which was damp. ( 3 ) MR. R. S. Narula, the learned counsel for the appellants submits that the petition for ejectment was not maintinable because there was no notice terminating the tenancy Admittedly this point was neither raised in the written statement nor before any of the Courts below. ( 3 ) MR. R. S. Narula, the learned counsel for the appellants submits that the petition for ejectment was not maintinable because there was no notice terminating the tenancy Admittedly this point was neither raised in the written statement nor before any of the Courts below. In view of this I see no cause to permit this point to be raised at this stage particularly because the scope of appeal under section 39 is limited to substantial questions of law. Mr. Narula then draws my attention to section 14 (l) (e) and submits that for the purposes of the said provision the person seeking eviction should not only be a landlord but also an owner. According to the learned counsel it had not been challenged in the petition that the respondent was the owner of the premises. In paragraph 18 of the application it had been stated that-"* * * the premises are bona fide required by the landlady for the residence of herself and her family members. " The term "landlady", in its common acceptation means both an owner as well a person who has let out a premises to a tenant. There is no warrant for the proposition that in paragraph 18 the respondent was using the word in a restricted sense. That being so it is wrong to contend that she did not even allege that she was the owner of the premises. It is significant that the appellants never raised this question cither in the written statement or before any of the Courts below. As a matter of fact it is stated in the order of the Tribunal that the ownership of the premises was admitted. In this view l find no force in the contention of the learned counsel, ( 4 ) IT is next contended that the plea as to bona fide personal requirement could have been agitated by the respondent in her earlier suit, and not having done so she is barred from raising the same on the principles of res judicata. Mr. Narula submits that the principle envisaged in explanation 4 to section 11 of the Code of Civil Procedure would be applicable. This plea of resjudicata was never raised in the written statement. In paragraph 16 of the reply the plea as to resjudicata was confine only to subletting. Mr. Narula submits that the principle envisaged in explanation 4 to section 11 of the Code of Civil Procedure would be applicable. This plea of resjudicata was never raised in the written statement. In paragraph 16 of the reply the plea as to resjudicata was confine only to subletting. It would in the circumstances not be proper to allow this plea to be raised in this appeal. Even otherwise there is no force in the contention. In order that a plea might be barred on the principle embodied in explanation 4 to section 11, it must be one which not only might" have been raised in the former suit but - ought" to have been raised therein. In the case of a landlord not wanting to occupy the premises for himself at the time of the institution of the former suitit cannot be said that he "ought" to have raised the plea. A landlord may have a very limited accommodation. and yet his circumstances may not permit him to shift to his own house or he may not like to shift. If cannot in those circumstances be said that the plea of bona fide requirement was one which "ought" to have been raised. Where a landlord sues for possession on the plea of personal requirement, the basis of the plea is two-fold (1) that the landlord has either insufficient accommodation or no accommodation available and (2) he wants to occupy his house. Unless both the elements are present at the time of the institution of the former suit the applicability of the principle of constructive res judicata does not. arise. Reliance he been placed on Man Mohan Lal v. B. D. Gupta, where the rule of constructive res-judicata was held applicable to proceedings for ejectment. That was a case of perversion of user. The object of explanation IV to section 11 is to compel the plaintiff or the defendant to rely upon all grounds of attack or defence which were open to them. Failure to raise the plea of perversion of user in the former suit would, no doubt attract the applicability of the principle of constructive res-judicata as the party omitting to raise such aplea would be acting in derogation of the principle that a party is bound to bring forward his whole case in respect of the matter in litigation. Failure to raise the plea of perversion of user in the former suit would, no doubt attract the applicability of the principle of constructive res-judicata as the party omitting to raise such aplea would be acting in derogation of the principle that a party is bound to bring forward his whole case in respect of the matter in litigation. That case is therefore of no assistance to appellant as the very basis of claim for ejectment on the plea of personal requirement is different. Mr. Narula then attacks the findings of the Tribunal regarding bonafide requirement. He submits that there are two flats in the ground floor, which for the sake of convenience I will call fiat a and flat b In each flat there are five living rooms. The respondent was previously living in three rooms out of five rooms in flat a and two had been let out. Flat b was in the occupation of one Siriniwasan B. W. 2 till 1958. Siriniwasan vacated the flat b in 1958 and the respondent occupied three rooms out of five rooms and let out the other two rooms to one Brij Bushan Sharma. Three rooms thus falling vacant in flat a were let out at Rs. 70. 00 p. m. in 1960. In 1960 the two rooms occupied by Brij Bhushan Sharma were vacated by him. According to Mr. Narula either these two rooms were available to the respondent after 1960 or she let them out again but in any event that was destructive of her case regarding bonafide requirement. Mr. Narula makes a grievance that the Tribunal has in arriving at its conclusion made use of an admission in the written statement that the respondent had three rooms. According to the learned counsel the Tribunal did not give any weight to the fact that during the pendency of the petition the two rooms in occupation of Brij Bhushan Sharma had fallen vacant. The Tribunal should have, according to the learned counsel, taken this subsequent event into consideration. Mr. Narula further submits that the respondent has failed to establish that she requires the premises, bonafide for her residence or for the residence of her family members and that the plea regarding her illness has not even been raised in the written statement. The Tribunal should have, according to the learned counsel, taken this subsequent event into consideration. Mr. Narula further submits that the respondent has failed to establish that she requires the premises, bonafide for her residence or for the residence of her family members and that the plea regarding her illness has not even been raised in the written statement. The finding of fact according to the learned counsel stands vitiated because the Tribunal has omitted from consideration very material evidence and has relied on inadmissible evidence. My attention has been drawn to Exhibit P. 4, a medical certificate, which was. proved, by the respondent only in her ex parte evidence in support of the argument that the Tribunal has acted on inadmissible evidence. ( 5 ) MR. S. N. Chopra the learned counsel for the respondent submits that according to the appellants the two rooms in occupation of Brij Bhushan Sharma fell vacant in August 1960 but still they took no steps to specifically raise the point. Had the matter been raised he would have been able to show that immediately after these two rooms were vacated by Brij Bhushan Sarma they were forcibly occupied by one Ram Kumar on the plea that the same had been requisitioned for him. Mr. Chopra further submits that there is ample evidence to support the finding of fact arrived at by the Tribunal and in any case there is no substantial question of law justifying interference. Regarding the plea of illness, it was not necessary according to the learned counsel, to give datails of the grounds of her personal requirement. I have carefully gene through the evidence on record and Ism net covinced that there is any ground for disturbing the finding of fact arrived at by the Tribunal. Whether or not the premises in the occupation of the respondent is sufficient to meet her requirement and whether or not her need is bona fide is not in the last resort a question of fact. In my view there is sufficient evidence to justify the finding and I see no reason to disturb the same. ( 6 ) IN the result the appeal fails and is dismissed with costs. Execution proceeding may go on, but possession will not be taken from the tenants for three months from today.