SHADI LAL KAPUR v. SANTOSH KUMAR GUPTA — 1987 DIGILAW 36 (DEL)

SUNANDABHANDARE ( 1 ) THIS is a petition under S. 25-B (8) of the Delhi Rent Control Act (hereinafter referred to as the Act) by the petitioner-Shadi Lal Kapoor (landlord) seeking the revision of an order of the Additional Rent Controller, Delhi dated l2th July 1985 dismissing the eviction petition of the respondent under S. 14 (l) (e) of the Act from premises bearing No. C-4/102, Safdarjung Development Scheme, New Delhi. ( 2 ) IT was alleged by the petitioner in the eviction petition that the premises in question were let out under S. 21 of the Act to M/s. Himachal Shoddy Mills Limited for the residence of Shri Santosh Kumar Gupta who claimed to be the Director of the said Company on or about 20th April 1973 for a period of two years at a rent of Rs. 1600. 00 per month for purely residential purposes. After the expiry of the term of the lease, the respondent requested the petitioner to give him six months time to vacate the premises as he was building his own house. The petitioner acceded to his request and allowed him to stay beyond the period of lease, however the respondent did not vacate the premises even during the extended period and, therefore, the petitioner was compelled to file the petition under S. 14 (l) (e) read with S. 25-B (8) of the Act. It was averred in the petition that at the time of letting, the family of the petitioner consisted of himself, his wife, one married daughter, two unmarried daughters aged 25 years and 21 years and one son aged 17 years and the children had since grown up and the daughters were 28 years and 26 (24?) years and the son about 20 years and they needed independent rooms and the accommodation in their possession was not sufficient. It was further averred that the petitioner and his family members were residing in a portion of a property belonging to the H. U. F. /joint family bearing No. 19, Link Road, Jangpura Extension, New Delhi which consists of two bed rooms and one small drawing-cum-dining room which was inadequate for the petitioner and his family members. It was further averred that the petitioner and his family members were residing in a portion of a property belonging to the H. U. F. /joint family bearing No. 19, Link Road, Jangpura Extension, New Delhi which consists of two bed rooms and one small drawing-cum-dining room which was inadequate for the petitioner and his family members. Moreover, due to the bickering between the joint family, it was not possible to live in the said property and, therefore, he needed the premises in possession of the respondent for the bona fide need of himself and his family members. ( 3 ) THE respondent sought leave to defend which was allowed. Apart from denying the ownership of the petitioner and the letting purpose, the respondent denied the bona fide requirements of the petitioner and his family members dependant upon him. The respondent alleged in the written statement that the petitioner was in occupation of a multi-storeyed building consisting of ground. floor, first floor and second floor which had about 10 living rooms on the ground floor, two servant quarters and two office rooms at 19 Link Road, Jangpura Extension, New Delhi. That accommodation was sufficient for the need of the petitioner and his dependant family members which consisted of his wife, one unmarried daughter and one son. It was alleged that though the petitioner also had two married daughters, one was settled in a foreign country who had surrendered her Indian citizenship and the second daughter was not on visiting terms with the petitioner. The averment of the petitioner that property No. 19 Link Road. Jangpura Extension, New Delhi belongs to H. U. F. was also denied. ( 4 ) IN the replication, the petitioner reiterated that the petitioner was occupying only one drawing-cum-dining room and two bed rooms on the ground floor in property No. 19, Link Road, Jangpura Ex tension. New Delhi and the rest of the portion was in occupation of the other family members of the H. U. F. /joint family. It was denied that two daughters of the petitioner were married or that one daughter had surrendered her Indian citizenship. It was reiterated that two daughters and one son stayed with the petitioner and were totally dependent on him for the accommodation. It was denied that two daughters of the petitioner were married or that one daughter had surrendered her Indian citizenship. It was reiterated that two daughters and one son stayed with the petitioner and were totally dependent on him for the accommodation. ( 5 ) THE petitioner examined himself as A. W. 1 and also examined one Shri Ram Dhan who was the Legal Assistant of the Delhi Development Authority as AW 2 in support of his case. The respondent examined himself as RW 1 and closed the evidence. ( 6 ) THE learned Additional Rent Controller vide the impugned order held that the premises were let out to the respondent for residential purposes and also that the petitioner was the owner/landlord of the premises in question, however, dismissed the petition for eviction holding that the premises in question were not required for the bona fide personal need of the petitioner. ( 7 ) IT was contended by the learned counsel for the petitioner that property No. 19, Link Road, Jangpura Extension, New Delhi originally belonged to the father of the petitioner Shri D. C. Kapoor who put this property in the H. U. F. hotch potch Sh. D. C. Kapoor died on 17th January 1961 leaving behind his wife Smt. Chand Kaur three sons; S/shri P. C. Kapoor, S. L. Kapoor and M. L. Kapoor and daughters; Leela Khanna, Prakash Khanna, Kailash Sehgal and Raj Malhotra. Smt. Chand Kaur wife of Shri D. C. Kapoor also died on 21st January 1973 and, therefore, sons and daughters of late Shri D. C. Kapoor became the joint owners of the property. The property is designed and constructed in such a way that it could also be used as a single unit or when divided there would be two identical flats on the ground floor and two flats on the first floor apart from Barsati on the second floor. The petitioner Shadi Lal Kapoor had been occupying one flat; consisting of the drawing- cum-dining room and 2 bed rooms and one box-kitchen and this portion was marked Red in the site plan attached with the eviction petition. The second flat of the same size also consisting of one drawing-cum-dining room, two bed rooms and one box-kitchen was occupied by Shri M. L. Kapoor. The second flat of the same size also consisting of one drawing-cum-dining room, two bed rooms and one box-kitchen was occupied by Shri M. L. Kapoor. The third flat on the first floor consisting of one drawing- cum-dining room and two bed rooms were occupied by the third brother Shri P. C. Kapoor. Shri P. C. Kapoor died and, therefore, the wife of Shri P. C. Kapoor and her children are now staying in this flat. The fourth flat which was identical was occupied by Shri D. C. Kapoor and his wife. However, after the death of the parents, this flat is occupied by the daughters who come to Delhi often and who also have the right over the property. This was the family arrangement made for the occupation of property No. 19, Link Road, Jangpura Extension, New Delhi though originally the house was meant to be one single unit. The petitioner had produced income-tax assessment order dated 2-1-1967 showing assessment of D. C. Kapoor and Sons for the year 1962-63 wherein the Income-tax Officer had accepted that the petitioners could claim exemption on the basis of H. U. F. It was submitted that even assuming the court below had come to a conclusion that it was not a H. U. F. property, the only other conclusion that could have been drawn was that the property was jointly owned by the petitioner along with his brothers and sisters because the original owner was the father Shri D. C. Kapoor. Learned counsel submitted that a categorical statement was made in the eviction petition that only the portion marked Red in the site plan on the ground floor was in the occupation of the petitioner and his family members and the rest of the portion was in the occupation of other members belonging to the joint family of D. C. Kapoor and it was not necessary for the petitioner to show which portion of the rest of the property was in occupation of which other members of the H. U. F. It was submitted that the petitioner was not cross-examined on this issue and thestatement of the petitioner having remained unrebutted the Additional Rent Controller ought to have accepted the statement of the petitioner and come to the conclusion that only the portion of the property on the ground floor was in possession of the petitioner. ( 8 ) ON behalf of the respondent, it was contended that the petitioner had failed to produce mutation record, latest income-tax record or the record of the Municipal Corporation of Delhi or any other authority to show that the property had been mutated in favour of the H. U. F. and thus the Additional Rent Controller was right in holding that it was not a H. U. F. property. It was further submitted that assuming the case of the petitioner is accepted that the property in question belongs to H. U. F. , the petitioner had not produced any evidence to show that the property was in fact occupied by other members of the H. U. F. None of the family members of the H. U. F. were examined to show that they were occupying some of the portion in property No. 19, Link Road, Jangpura Extension, New Delhi nor did the petitioner produce, any other evidence like ration cards or electoral rolls to show that these members in fact stayed there. The petitioner having accepted that he lives in property No. 19, Link Road, Jangpura Extension, New Delhi which consists of 8 rooms on the ground floor and 8 rooms on the first floor, it inevitably meant that this accommodation was available with the petitioner and consequently his bona fide need of the tenanted premises would not be established. Learned counsel submitted that this being a revision petition under S. 25- B (8) of the Act the finding of fact arrived at by the Additional Rent Controller could not be disturbed by the High Court while exercising its revisional powers. He, therefore, contended that it cannot be said that the order of the Additional Rent Controller was one without jurisdiction or contrary to law or to the express provisions of the Act. The findings also could not Joe considered to be perverse or that there was some procedural irregularity committed resulting in miscarriage of justice. Learned counsel relied on S. Kumar v. Om Prakash Sharma, (1980) 1 Ren CJ 36 (Delhi) in support of this contention. The findings also could not Joe considered to be perverse or that there was some procedural irregularity committed resulting in miscarriage of justice. Learned counsel relied on S. Kumar v. Om Prakash Sharma, (1980) 1 Ren CJ 36 (Delhi) in support of this contention. ( 9 ) I do not consider it necessary to go into the question of the nature of ownership of property No. 19, Link Road, Jangpura Extension, New Delhi because the learned Additional Rent Controller has proceeded to decide whether alternative accommodation was available with the petitioner on a presumption that the property belongs to H. U. F. and is occupied by the members of the H. U. F. ( 10 ) THE Additional Rent Controller, in the present case came to the conclusion that apart from his own statement, the petitioner had not produced any other evidence to prove which of the other portion of the property at No. 19, Link Road, Jangpura Extension, New Delhi was occupied by other members of the H. U. F. or the joint owners of the said property and only the mere statement of the petitioner was available which could not be relied upon. He further held that since the plan produced by the petitioner did not show any bed room in that portion and the petitioner had not stated which of the rooms shown in the plan was being used by him as a bed room, either the plan was not correct or the petitioner was having some other portion with him under his use and occupation. ( 11 ) ON perusal of the eviction petition, written statement, replication and the statement of the petitioner, it is clear that a categorical averment has been made by the petitioner that only portion. of the property marked Red in the plan of property No. 19, Link Road, Jangpura Extension, New Delhi was in his occupation and the rest of the portion was in the occupation of the other members of the joint family of D. C. Kapoor and/or the H. U. F. The petitioner gave the names of the brothers and the extent of the family members residing in this property in the replication and in his examination-in-chief the petitioner has stated that only the portion marked Red in the plan was in his occupation. No Suggestion was made to the petitioner that the other members of the family were not residing in the said property. Thus, the statement of the petitioner that apart from the portion marked Red in the plan and the rest of the portion of the property was in possession of his family members stood unrebutted. That being the position, it was not necessary for the petitioner to prove which of the family members were in occupation of which portion of the property. On looking at the plan also it appears that a definite demarcation was possible to have an arrangement between the joint owners to ensure that all the co-owners got equal area for their occupation. ( 12 ) NOW it is true that this Court-does not sit in judgment over mere findings of fact arrived at by the Additional Rent Controller on the evidence before him or interfere merely because on the same facts, it is likely that another court may come to a different conclusion. However, this Court while exercising revisional jurisdiction under S. 25b (8) of the Act can examine the record and if it is found that the decision is contrary to law grant the relief. ( 13 ) IN the present case, in my view, the Additional Rent Controller was wrong on insisting that apart from the statement of the petitioner, there should have been some other evidence to prove which of the other members of the H. U. F. were occupying which portion of the property at 19, Link Road, Jangpura Extention, New Delhi. There is no hard and fast rule that in every case corroborative evidence like ration card-or electoral roll must be produced. Since the petitioner was not cross-examined on this point, it was unnecessary for the petitioner to produce any more evidence in this regard. The court below had to see the totality of circumstances and weigh the evidence of both the sides before arriving at a definite conclusion regarding the alternative accommodation in possession of the landlord. It seems that Ihe whole approach of the Additional Rent Controller was incorrect which has resulted in miscarriage of justice. ( 14 ) NOW coming to the question of the need of the petitioner and his family members. It seems that Ihe whole approach of the Additional Rent Controller was incorrect which has resulted in miscarriage of justice. ( 14 ) NOW coming to the question of the need of the petitioner and his family members. The petitioner s family consists of himself, his wife, 2 unmarried daughters aged 28 years and 25 (24?) years and one son aged about 20 years. Apart from these members (he) has one daughter who is married but occasionally visits the petitioner. Since the petitioner is in possession of just two bed rooms and one drawing-cum-dining room at 19, Link Road, Jangpur Extension, New Delhi which is the portion marked Red in the plan it cannot be said that this accommodation issufficient lor the landlord and his family members and his need in respect of the premises in dispute is not genuine. It is well-settled that under S. 14 (l) (e) of the Act the landlord is entitled to make himself more comfortable in this own property and a plea for living in a more convenient and congenial atmosphere cannot be called unreasonable. The only requirement of law appears to be that the need must he bona fide and the landlord must not have any oblique motive in getting the tenant evicted. It is quite possible that due to the bickering in the joint family in respect of which there is litigation pending in courts it is difficult for the petitioner s family to live at 19, Link, Road, Jangpura Extention, New Delhi and thus the need is bona fide. In any event, there is no oblique motive alleged or proved. ( 15 ) THE petition is, therefore, allowed. The order dated l2th July 1985 of the Additional Rent Controller, Delhi is set aside. I pass an order of eviction under S. 14 (l) (a) of the Delhi Rent Control Act against the respondent-tenant. The order of eviction shall be executable after the expiry of six months. No costs.