PUSHPA WATI v. MAHENDRA KUMAR — 1996 DIGILAW 230 (DEL)

C. M. Nayar ( 1 ) THE present petition is directed against the judgment dated September 7, 1987 passed by the Additional Rent Controller, Delhi, rejecting the petition for eviction moved under Section 14 (l) (e) of Delhi Rent Control Act (hereinafter REFERRED TO to as the Act ). ( 2 ) THE brief facts of the case are that the respondents are the tenants in respect of two bed rooms with attached bath room, drawing-cum-dining room, one kitchen and whole verandah in front and rear and one servant quarter with W. C. on the ground floor of the premises bearing No. 25-C (new) 78/48 (Old) Rajdoot Marg, Diplomatic Enclave, New Delhi for residential purpose at the rate of Rs. 550. 00 per month. The petitioner contended before the Rent Controller that the suit premises were let out to the respondents for a period of 11 months with effect from December 1, 1965 by a written agreement with an option to the tenants to continue in the premises with the consent of the petitioner for another 11 months on the same terms and conditions subject to giving advance notice in writing of atleast one month prior to the expiry of said period. The notice dated April 9,1976 was served in this regard. The petitioner further alleged that she was the owner of the suit premises and her husband Tej Ram Berry was a Government servant and he was due to retire in February, 1977. Her family consisted of self, her husband, four sons and two daughters at the time of filing of the eviction petition. One of the sons was married and three were grown up and were to be married. They could not be married due to lack of accommodation. Similarly one of the daughters was married. It was alleged that she and her husband and two children mostly remained with the petitioner. Her second daughter was a student and unmarried. The petitioner was living in the accommodation in A-76, South Extension Part-11, New Delhi which was rented by her husband. The accommodation in the premises was too meagre for her growing family. It is not in dispute that suit for eviction has been filed by the landlord in respect of the premises at A-76, South Extension, Part II, New Delhi which is pending consideration before the Court of Additional Rent Controller. The accommodation in the premises was too meagre for her growing family. It is not in dispute that suit for eviction has been filed by the landlord in respect of the premises at A-76, South Extension, Part II, New Delhi which is pending consideration before the Court of Additional Rent Controller. Therefore, in this background it was argued that the petitioner had no reasonably suitable residential accommodation for her big growing family and family members dependent upon her. The premises accordingly were required bona fide for herself and for the use and occupation of other family members. ( 3 ) THE respondents contested the proceedings and filed written statement wherein they took the plea that the petitioner was not the owner of the premises or they were not let out for residential purposes alone and reiterated that she did not require the same bona fide for her husband and for the residence of her other family members. The premises though initially let out for residential purposes, part of the premises was permitted to be used for office of the respondents with the consent of the petitioner. Therefore, the original terms of tenancy as indicated in letter dated December 1,1965 were changed whereby the respondents were allowed to use the premises for both purposes of residence and office. The respondents had also been paying the penalty as imposed by the Land and Development Office over and above the agreed rate as well as the additional house tax imposed in view of part of the premises being used for office purposes. It was alleged that the petitioner was comfortably residing in the accommodation in her possession. All the persons as mentioned did not form part of her family and were not dependent upon her. Her married daughter and her family are not the members of the petitioner s family and even otherwise they were not residing with her. It was further pleaded that the first and Barsati floors which were vacated were not occupied within two months of getting possession as was required under the provisions of Section 19 of the Act. The said tenant on the first floor and Barsati floor had already moved an application under the above said provision for restoration of the possession of the said portion. The said tenant on the first floor and Barsati floor had already moved an application under the above said provision for restoration of the possession of the said portion. This application, it is stated by learned Counsel appearing for the petitioner, has since been dismissed in default on 25th January, 1991. Therefore, in this background, the requirement of the petitioner could not, in any manner, be termed as bona fide. ( 4 ) THE learned Additional Rent Controller first disposed of the plea that the premises were being used for residential as well as commercial purposes and gave a finding that the petitioner landlady had herself approached them to pay the penalty charges so that the breaches could be regularised for misuser. Therefore, it was inferred that the premises were being used for residential-cum-commercial purposes and no order of eviction, as a consequence, could be passed under the provisions of Section 14 (l) (e) of the Act. The learned Judge, on appreciation of evidence on record, came to the conclusion that the user of part of the premises for office purposes by the respondents was with the consent of the petitioner and such misuser continued from April, 1968 to atleast 1973. Therefore, the premises were held to be used for residential-cum-commercial purposes. In the alternative, he also considered the plea of the petitioner with regard to the bona fide requirement and came to the conclusion that it was doubtful that the petitioner required the premises for herself or for members of her family dependent upon her. The petitioner felt aggrieved by the judgment dated September 7,1987 passed by the Additional Rent Controller and has moved this Court by this revision petition. ( 5 ) THE land on which the property is constructed was acquired by the petitioner on the basis of perpetual lease-deed dated November 12, 1955 entered into between the Government of India which prima facie would indicate that the premises were to be used for residential purposes. The petitioner entered into an agreement with the respondents vide agreement dated December 1,1965 which will also indicate that the premises were let out in favour of the respondents for purposes of residence. Paragraph 14 of the Agreement reads as follows : "that we shall use the premises for the purpose of residence only. The petitioner entered into an agreement with the respondents vide agreement dated December 1,1965 which will also indicate that the premises were let out in favour of the respondents for purposes of residence. Paragraph 14 of the Agreement reads as follows : "that we shall use the premises for the purpose of residence only. " ( 6 ) IT is not in dispute that subsequently the respondents started using part of the premises for the office of M/s Allgemein Organisation and Co. of which they were the only two partners. This is also indicated from the affidavit filed by one of the partners on 13th June, 1969. The same reads as follows : "we Messers. Allgemein Organisation and Company, 25-Y, Rajdoot Marg, Ghana kyapuri. New Delhi, are using an area measuring 7 -10" x 12 -2" from our above-mentioned premises for our office from the 1st April, 1968. For Allgemein Organisation and Co. sd/- Partner Dated: 13. 6. 1969"this will indicate that a small part of the premises was being used by the respondents for their office. This user came to the notice of Land and Development Office who issued notice for breach of the terms of the perpetual lease and asked the petitioner to pay the misuser charges so that the breaches could be regularised. The first notice for breaches was received by the petitioner which is dated 25th June, 1968 (Ex. AW2/10 ). The said communication may be reproduced as follows: REGD A. D. No. L. IV/9/48 (78)/68 Government of India Ministry of Works, Housing and Supply LAND and DEVELOPMENT OFFICE New Delhi, the 25. 6. 1968 To Shmt. Pushpa Wati, 13, Shiv Ashram, Mukherjee Marg (Queens Road) New Delhi Madam, With reference to your letter dated 12. 4. 68 on the above subject, I am to inform you that the following unauthorised structures stand regularised upto 14. 1. 68 and still exists at site: First Floor:-Coverage of open terrace measuring 13 -l I /2"x8 - 4 I /2" and 12 -4 l/2\ x5 with fixed G. I. sheets. Further it has been reported that front verandah and dining room on ground floor is being used as office of the Allgemein Org. and Co. Under clause 111 (7) of the Perpetual Lease you are restrained from using, permitting or suffering to be used the premises for any purpose except as sanctioned. Further it has been reported that front verandah and dining room on ground floor is being used as office of the Allgemein Org. and Co. Under clause 111 (7) of the Perpetual Lease you are restrained from using, permitting or suffering to be used the premises for any purpose except as sanctioned. You have therefore committed breach of clauses 111 (5) and 111 (7) of the Perpetual Lease. You are therefore requested to show cause within 15 days from the date of issue of this letter as to why action for re-entry may not be taken under clause V of the Perpetual Lease for breach of clauses 111 (5) and 111 (7) thereof. Please note that in case no satisfactory cause is shown within the aforesaid period further action will be taken without any further reference to you. Yours faithfully, sd/- (Shital Prasad) Dy. Land and Development Officer for and on behalf of and by the direction of the President of India. " ( 7 ) SIMILAR communications were received from Land and Development Office from time to time. It is not indispute that the petitioner has been corresponding and asking the respondents to pay the misuser charges. It may also be noticed from one such communication dated November 1, 1975 that the Land and Development office offered to regularise the breaches temporarily in the premises provided misuser charges, as specified in the communication were paid. It will be futile to refer to further communications in this regard as it is an admitted case of the parties 91 that the Land and Development Office raised misuser charges for the misuser of part of the premises for office by the respondents. The learned Additional Rent Controller treated this as user for residential-cum-commerdal purposes with the consent of the petitioner and accordingly held on that basis that as portion of the residential premises for professional work was being used with full knowledge of the petitioner, no order of eviction could be passed under the provisions of Section 14 (l) (e) of the Act. He has REFERRED TO to various judgments of this Court and sought reliance from the judgment of the Supreme Court as reported in Dr. Gopal Das Venna v. Dr. S. K. Bhardwaj and Another, AIR 1963 Supreme Court 337. He has REFERRED TO to various judgments of this Court and sought reliance from the judgment of the Supreme Court as reported in Dr. Gopal Das Venna v. Dr. S. K. Bhardwaj and Another, AIR 1963 Supreme Court 337. The facts in that case would indicate that the appellant therein owned a double storeyed house known as 28, Barakhamba Road, New Delhi. The ground floor of this house consisted of a block of offices and the first floor consisted of four flats; three of these were in occupation of the appellant. Dr. Gopal Dass Verma while the fourth flat had been let out to respondent No. I, Dr. S. K. Bhardwaj. The said Dr. Bhardwaj was an ear, nose, throat specialist and in one of the four rooms in the flat he and his wife resided while the three other rooms were used by him for the purpose of his profession. The agreement showed that the appellant agreed to let out his flat to respondentno. lonarentofrs. 90. 00 permonthpayableinadvanccandthetcnancy was to commence from October 1, 1935 and was intended to continue upto 30th September, 1936. The parties agreed that the tenancy could be renewed on terms to be settled later. In fact, the tenancy had been renewed from year to year and the flat was still in possession of respondent No. 1. The appellant sued the respondents for ejectment on two grounds, he required the premises for occupation as residence for himself and for members of his family and the respondent had recently built a suitable residence for himself. These pleas were taken under the provisions of Section 13 (l) (e) and 13 (1 ) (h) of the Act. The trial Judge held that the premises had been let for residential purpose and fact that a portion of the premises was used by respondent No. 1 for his profession or business, would not make the tenancy one for non-residential purposes. He, accordingly, rejected the arguments raised by the respondents on the explanation to Section 13 (l) (e) of the Act. On the question of bona fide requirement for personal residence pleaded by the appellant, the Trial Court gave a finding against him. Eviction was, however, granted in favour of the appellant on the grounds as contained in Section 13 (l) (h ). On the question of bona fide requirement for personal residence pleaded by the appellant, the Trial Court gave a finding against him. Eviction was, however, granted in favour of the appellant on the grounds as contained in Section 13 (l) (h ). Both the parties filed an appeal and the Appellate Court held that on the facts proved in the case, it could not be inferred that the premises in suit were used incidentally for profession with out the consent of the appellant, and in that view,section l3 (l) (e)did not apply. The Court examined the conduct of the parties and held that it was proved beyond any shadow of doubt that respondent No. 1 was using the premises for his residence and the professional work since the inception of the tenancy without any objection from the appellant. The appeal preferred TO by the respondent was allowed and the decree for ejectment passed by the Trial Court against the tenants was set aside. The revision was filed before the High Court, which in substance agreed with the view taken by the Appellate Court confirming its main findings and dismissed the revision petition. The High Court observed that in its opinion, the appellate Judge was fully justified in holding that the premises were let out to the tenant for the purpose of residence and for the purpose to work as a medical profession. The matter thereafter went to the Supreme Court which considered the respective pleas of the parties. The following extract from paragraph 6 reads as follows : "section 13 (1) provides that notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant including a tenant whose tenancy is terminated. This provision is, however, subject to the exceptions provided under the several clauses of the proviso. We are concerned with two of these. Section 13 (l) (e) allows a decree for ejectment to be passed if the Court is satisfied that the premises let for residential purposes are required bona fide by the landlord who is the owner of such premises for occupation as a residence for himself or his family and that he has no other suitable accommodation. Section 13 (l) (e) allows a decree for ejectment to be passed if the Court is satisfied that the premises let for residential purposes are required bona fide by the landlord who is the owner of such premises for occupation as a residence for himself or his family and that he has no other suitable accommodation. The explanation to this clause provides that for the purpose of this clause residential premises include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes; and Sec. 13 (l) (h) provides for ejectment in a case where the Court is satisfied that the tenant has whether before or after the commencement of this Act built, acquired vacant possession of, or has been allotted, a suitable residence. It is with these three provisions that we are concerned in the present appeal. " ( 8 ) THE finding was recorded on the basis of the admitted facts and paragraph 7 may be read in this regard : "it would be noticed that as soon as it is found that the premises in question have been used by respondent 1 incidentally for professional purposes and it is further established that this use is made with the consent of the landlord then the case goes outside the purview of Section 13 (l) (e) altogether. In the present case it has been found by the Appellate Court and the High Court that right from the commencement of the tenancy a substantial part of the premises is used by respondent 1 for his professional purpose, and they have also found that this has been done obviously with the consent of the landlord. It is unnecessary to refer to the evidence on which this finding is based. Even the Trial Court was apparently inclined to take the same view about this evidence but it did not fully appreciate the effect of the explanation; otherwise it would have realised that the professional use of a substantial part of the premises with the consent of the appellant clearly takes the case outside Section 13 (l) (e ). Even the Trial Court was apparently inclined to take the same view about this evidence but it did not fully appreciate the effect of the explanation; otherwise it would have realised that the professional use of a substantial part of the premises with the consent of the appellant clearly takes the case outside Section 13 (l) (e ). In other words, where premises are let for residential purposes and it is shown that they are used by the tenant incidentally for commercial, professional or other purposes with the consent of the landlord the landlord would not be entitled to eject the tenant even if he proves that he needs the premises bona fide for his personal use because the premises have by their user ceased to be premises let for residential purposes alone. This position cannot be seriously disputed. " ( 9 ) THIS judgment has been strongly cited by the Additional Rent Controller to reiterate the proposition that where even part of the premises is being used for commercial purposes, no order of eviction can be passed under the provisions of Section 14 (1 ) (e) of the Act. 10. 1 may now compare the facts of the present case with the facts which arose in the case of Dr. Gopal Dass Verma (supra ). In this case, the property was initially 93 let out only for residence alone and subsequently a very small portion came to be used for the office by the respondents. The Land and Development Office raised misuser charges on different dates and allowed the use of that part for office purpose. The communication received from the Land and Development Office would further indicate that these were held only as breaches which were regularised by payment of charges on different dates. It was also not indispute that there was no permanent labelling of the property for commercial useras all letters would indicate that the Land and Development Office was pleased to regularise the breaches temporarily. On the contrary in the case of Dr. It was also not indispute that there was no permanent labelling of the property for commercial useras all letters would indicate that the Land and Development Office was pleased to regularise the breaches temporarily. On the contrary in the case of Dr. Gopal Dass Verma (supra) it was clearly held that on the facts proved in that case it could not be inferred that the premises in suit were built for residential purposes alone in view of the admitted position that the entire ground floor consisted of a block of offices and the first floor consisted of four flats, three of which were in occupation of the appellant therein and fourth had been let out tea Doctor who had been running his clinic in three out of four rooms. It was not accordingly a case of incidental user and substantial part of the premises was used for professional purpose whereas in the present case only a very small part of the premises was incidentally being used for office purpose. The facts in two cases are clearly distinguishable and can not be of any avail to the contentions of learned Counsel for the respondents. This plea can also be examined by referring to another judgment of the Supreme Cour tas reported in Hiralal Kapur v. Prabhu Choudhury, AIR 1988 Supreme Court 852. The relevant portions are contained in paragraphs 10, 11 and 12 which may be reproduced as follows : ( 10 ) IN our opinion, the contention of the respondent cannot be accepted in the extreme form in which it is urged here. It may be that in a case where a lawyer seeks to evict a tenant on the ground that the entire premises sought to be got vacated are solely needed by him for use as his office and library, his requirement may not satisfy the requirements of clause (e) of the proviso to Sec. 14 (1 ). But this is quite different from saying that where the premises are sought to be got vacated for use as a residence and, the landlord being a lawyer desires to use a part of such residence as a study, office or library, such use would be a non-residential use. But this is quite different from saying that where the premises are sought to be got vacated for use as a residence and, the landlord being a lawyer desires to use a part of such residence as a study, office or library, such use would be a non-residential use. Any professional man of standing would necessarily have to set apart a portion of his residence for such purposes and the premises does not cease to be his residence because of that. In the present case, the petitioner seeks eviction of the suit premises for his bona fide residential requirement and the use of the hall as an office is only incidental to such a requirement. In ascertaining the bona fide need of residence, in the case of a lawyer, the fact that a room has to be used as an office cannot be a consideration extraneous to the scope and content of clause (e) of the proviso to Sec. 14 (1 ). ( 11 ) TO test our conclusion, we may sec what the position would be in the converse case. If, in the present case, the petitioner had stated that the required the hall because he had no living room in the premises which he was occupying as the only room there was being, or had to be, used by him as an office, the petitioner s claim could not have been rejected, for he would then ha ve needed the hall clearly as part of his residential requirement. The decision in Khanna v. Batra, (1966-2 DLT306) illustrates this. There, an Advocate, had asked for eviction of a tenant from the first floor as the ground floor premises occupied 94 by him were not sufficient for his needs for purposes of residence and office. The Rent Control Tribunal held that since the appellant intended to convert the existing residential accommodation in his possession into an office and library for the use of his clerk and clients, such a user was not permissible in law. Reversing this conclusion, Grover, J. , observed : "it seems to me that the Rent Control Tribunal was clearly in error in thinking that merely because the appellant wanted to use the accommodation in his possession for professional purposes, he could not claim benefit of the provisions contained in clause (e) of the proviso to Sec. 14 (1) of the Act. It was this error which led to the conclusion at which the Rent Control Tribunal arrived upholding the decision of the Controller on the second point, namely, the requirement of the appellant on personal grounds. I cannot therefore, accede to the submission of the learned Counsel for the respondent that the finding of the Rent Control Tribunal with regard to the personal need or requirement was one of the fact and thus immune from challenge in the second appeal. " ( 12 ) SHOULD the position be different in this case? Merely because the petitioner has come forward with an honest plea that he intends to use a part of his residence as an office, should a different result follow, particularly in a case like this where ill-health compels him to have his office at home? Should the result depend on the jugglery of pleadings or the substance of the matter? We think the substance should prevail. In our opinion, where a landlord applies for the possession of his residential premises, his bona fide requirement of the premises for his residential purposes will not stand vitiated merely because he intends to use a portion of the premises for purposes of his office, library or study". Similarly in the present case the mere incidental user of a very small portion of the premises for office cannot convert the same as user for non-residential purpose. The finding of the Controller in this regard cannot be sustained in law and has to be set aside. The controller has clearly noticed the fact that respondent No. I had deposed that he and his father respondent No. 2 were the partners in M/s Allgemain Organisation and Co. . His father retired and he became the sole proprietor of the said concern. He further stated that he maintained the suit premises continuously for the purpose of residence as well as for his office. The learned Counsel for the petitioner also reiterates that the respondents are not presently running any office from the premises and then they have already shifted with all members of the family to another accommodation known as 6/30, Shanti Niketan, New Delhi. It is always open for this Court to take into consideration any subsequent events which take place to determine the rights of the parties and to do complete justice between them. It is always open for this Court to take into consideration any subsequent events which take place to determine the rights of the parties and to do complete justice between them. In view of the above reasons, it cannot be said that no order of eviction can be passed on the basis of the provisions, as contained in Section 14 (l) (e) of the Act as the premises cannot be deemed to be used for residential-cum-commercial purposes. The user for office purpose was merely incidental and the Breaches were condoned temporarily on payment of charges to Land and Development Office. This cannot in any manner be treated as consent on part of the landlady. The finding in this regard of the Additional Rent Controller is set aside. The only other question which now survives is, as to whether, the petitioners require the premises for use for herself and other members of the family dependent upon her. The family of the petitioner excluding her daughters consists of the following : " (I) Petitioner herself. (ii) Son Shri Prem Prakash Beri. He has two children namely-Ms. Yamini Beri, aged 17years studying in Carmel Convent School, Chanakyapuri New Delhi and Master Tarun Beri aged 14 years studying in Fr. Agnal, Gautam Nagar, New Delhi. (iii) Son Kuldip Prakash Beri who also has two children namely-Ms. Monika Beri, aged 15 years studying in Holy Child School, Vasant Vihar, New Delhi and Master Mohit Beri, aged 13 years studying in Chinmaya Udyalaya, Vasant Vihar, New Delhi. (iv) Son Arun Prakash Beri who has two daughters namely - Ms. Kamini Beri. aged 12 years and Ms. Damini Beri aged 10 years both studying in Carmel Convent School, Chanakyapuri, New Delhi. (v) Petitioner s fourth son Shri Anil Prakash Beri who has two sons namely Master Varun Beri, aged 7 years studying in Navyug School Chanakyapuri, New Delhi, and Master Mani Beri, aged 4 years studying in Hill Grove School, Safdarjang Development Area, New Delhi. "the other ground, which is relevant for the purpose of determining the bona fide requirement of the petitioner is an admitted fact that she and some other members of the family are presently residing in A-76, South Extension Part II, New Delhi which accommodation is comprised of two bed rooms, drawing-cum-dining room plus a small Barsati. "the other ground, which is relevant for the purpose of determining the bona fide requirement of the petitioner is an admitted fact that she and some other members of the family are presently residing in A-76, South Extension Part II, New Delhi which accommodation is comprised of two bed rooms, drawing-cum-dining room plus a small Barsati. The eviction proceedings in respect of these premises are pending and the learned Counsel for the petitioner, on specific instructions, fairly concedes that the petitioner and her family members will ultimately have to vacate those tenanted premises when they get possession of the present premises. The pendency of eviction proceedings against the petitioner, accordingly, will be another factor to reiterate that the requirement cannot be any thing but bona fide. The Division Bench of this Court in a recent Judgment as reported in Sushila Devi and Others v. Raghunandan Pershad and Ors. , 61 (1996) Delhi Law Times 426 determined the meaning and scope of the word "himself" to assess the bona fide need of the landlord for additional accommodation and the need for near relations including married da ughters and other guests. The Court has clearly held that such need can be considered to assess the requirement of the landlord. Paragraph 36 of this judgment reads as follows : "on principle we find no reason as to why the requirement of a landlord who is in possession of accommodation which is insufficient or hardly sufficient for members of his family actually living with him, to accommodate other relations and guests (and obviously mostly guests will also be the relations) who also visit and stay with him off and on, should not be taken into consideration while considering the requirements of the landlord for accommodation. After all human being is a social being and does not live alone or aloof. One visits his relations and his relations visit him and such relations or one or the other relations continually visit each other off and on. Social customs, conventions, habits and usages and practices of the society and similar other considerations cannot be completely ignored as irrelevant while considering the question of the requirement of the landlord. One visits his relations and his relations visit him and such relations or one or the other relations continually visit each other off and on. Social customs, conventions, habits and usages and practices of the society and similar other considerations cannot be completely ignored as irrelevant while considering the question of the requirement of the landlord. In our view it would not be proper to say that as a broad proposition of law that the requirements of the family guests visiting the landlord off and on cannot at all be taken into consideration while assessing the need of the landlord. The requirement of the landlord for guests and relations who visit and stay with him off and on, in our view, is also entitled to be considered keeping in view the facts and circumstances of each case as has also been observed by M. L. Jain, J. in Kanwal Narain v. L. f. Tellis. "taking an over all view of the admitted facts with regard to the size of the family of the petitioner, the finding of the Additional Rent Controller to the effect that the petitioner had not been able to establish her bona fide cannot be sustained. The present petition is allowed and decree for eviction is passed in favour of the petitioner. The same shall, however, be not executable till 31st August, 1996. There will be no order as to costs.