* IN THE HIGH COURT OF DELHI AT NEW DELHI

% C.R.P. 972/1998

+ Date of Decision: 28th March, 2012

# KRISHNA DEVI(SINCE DEAD) & ANR. ….Petitioners ! Through: Mr. Sachin Mittal & Ms. Vijeta Kumari, Advocates

Versus

$ KENDER PAL SINGH …..Respondent Through: Dr. L.S. Chaudhary & Mr. Ajay

Chaudhary, Advocates

CORAM:

* HON’BLE MR. JUSTICE P.K.BHASIN

ORDER

P.K.BHASIN, J:

This petition under Section 25-B(8) of the Delhi Rent Control Act, 1958(“the Rent Act” in short) was filed by one Smt. Krishna Devi, who died during the pendency of this petition and her legal heirs were brought on record, and one of her sons Shri Sat Narain against the order dated 28.07.1998 passed by the learned Additional Rent Controller(in short „the Controller‟) dismissing their eviction petition filed against the respondent herein under Section 14(1)(e) of the Rent Act in respect of a part of house no.1/40, Punjabi Bagh, New Delhi (hereinafter to be referred as “the tenanted premises”).

C.R.P. 972/1998 Page 1 of 9

2. In the eviction petition it had been claimed that the deceased petitioner Smt. Krishna Devi was the owner of property no.1/40, Punjabi Bagh and two room set on the first floor of this house was let out to the respondent-tenant in the year 1980 by her through her son, petitioner no.2 who had all along been dealing with the respondent as the landlord. The eviction of the respondent was sought on the ground that the tenanted premises in his occupation were required bona fide for the residence of the deceased petitioner and her other family members dependent upon her. The family of the deceased petitioner was of twenty three members including herself, her husband, and her three sons who were dependent on her for residence and her grandchildren while the accommodation available with her in the house no.1/40 which was the only property owned by her, was of five rooms only. One of her sons was living separately in a rented house because of paucity of accommodation in the house in question she wanted him also to stay with other family members together. Petitioner no.2 was also living separately but he was not dependent upon her.

3. The respondent-tenant had contested the eviction petition after obtaining necessary permission from the Controller as provided under Section 25-B(4 & 5) of the Rent Act. In his written statement he had taken the plea that there was no relationship of landlord and tenant between himself and the deceased petitioner Smt. Krishna Devi and that the tenanted premises had actually been let out to him by her son Sat Narain, petitioner no. 2 and since his said landlord was not

C.R.P. 972/1998 Page 2 of 9 claiming that he required the tenanted premises for his residence the eviction petition was not maintainable. The respondent had further pleaded that under the family partition in respect of house in question the portion under his tenancy tenanted it was petitioner no.2 who had become its owner but and the eviction petition was filed collusively by the mother and son together in order to evict the respondent by pressing into service the requirement of the mother showing her to be the owner.

4. The learned Controller after examining the evidence adduced by the parties dismissed the eviction petition vide impugned order. The relevant portions from that order where the contentions of the parties were discussed and findings were given are re-produced below:-

“……………….The petitioner no. 1 has submitted that the premises in the suit were now required for residence of herself and their family members dependent upon her. She has stated that her family consisted of herself, her husband, her sons and their families. It is stated that the petitioner no. 1 has only one house namely 1/40 Punjabi Bagh where she had accommodation consisting of 2 rooms, store, kitchen, bath room on the ground floor. Similar accommodation on the first floor and barsati on the second floor. The first floor portion was with the respondent. the petitioners have stated that the petitioner no. 2 had his own house at CP-211 Pitampura New Delhi and was not dependent upon the petitioner for accommodation. However, she claims that her family consisted of her husband, one son having his wife and 3 grown up children aged about 21, 18 and 14 years, another son having his wife and 4 children aged 17, 15, 12 and 11 years, the third son having his wife and 3 children aged 14, 13 and 6 years and the fourth son having his wife and 3 children of the age of 8, 6 and 1 ½ years. Thus the petitioner has in all 23 members dependent upon her for the purpose of accommodation and the accommodation available with her comprises of only 5 rooms, 2 kitchens and a store. It is stated that the first son of the petitioner was residing in a rented accommodation at B-137, Ashoka Enclave, Peera Garhi Chowk @ Rs. 1,000 and he

C.R.P. 972/1998 Page 3 of 9 could not be accommodated with the petitioner no. 1 on account of shortage of space. The petitioners have therefore sought the respondents eviction so that they could properly accommodate the said son of petitioner no. 1 living in a rented house as he also was desire to reside with his old parents…………….

3. After leave to defend was granted to the respondent he filed his written statement wherein he has raised preliminary objections that there was no relationship of landlord and tenant between himself and petitioner no. 1 as the premises had been let out by petitioner no.2……………..

7. The petitioners have placed on record a certified copy of the sale deed in favour of petitioner no.1 as Ex. AW1/2. It is also the admitted case that the petitioner no. 2 had let out the premises and was thus the landlord. It is not that only a landlord can institute a petition u/s 14(1)(e). In fact, their requirement as otherwise and ownership is an important ingredient of Sec. 14(1)(e) which has to be fulfilled before petitioner can seek the eviction of a tenant from the tenanted premises. The petition is therefore maintainable in the light of Ex AW1/2 the sale deed in favour of petitioner no. 1.

8. The petitioners stated in the petition that the premises had been let out for residential purposes. No question was put to AW1 that the premises had been let out for residential cum commercial purposes……………….Thus, it is clear that the purpose of letting is residential and not residential cum commercial as claimed in the written statement.

9. ………………. The petition specifically mentions the need of the first son of petitioner no. 1 who was residing in a rented house at D-137, Ashok Enclave paying a monthly rent of Rs. 1,000/-. In the petition it was claimed that it was necessary to evict the respondent in order to accommodate this son of petitioner no. 1. AW2 is Sh. K.R. Goel the son in question. He has stated that whereas his brothers Hari Ram Goel, Ram Bhaj Goel and Madan Lal Goel were residing with petitioner no. 1 as they did not have any residential house, he was living in house no. A-207 Meera Bagh, Rohtak Road, Delhi as a tenant………. for the purpose of residence he was dependent upon his mother…………….He further states that his mother being aged 78 years and not keeping good health, desired that he lived with her after the portion was vacated by the respondent. This witness was not cross examined on material aspects despite opportunity being given to the respondent. However, the respondent has examined RW2 Sh. Satya Vrat Astt. Zonal Inspector MCD House Tax Department who produced the record relating to property No. A-207, Meera Bagh,

C.R.P. 972/1998 Page 4 of 9 New Delhi. This is the same property in which AW-2 Sh. K.R. Goel claims he was residing as a tenant. He had also stated that the landlord was one Shiv Kumar who had issued the rent receipts Ex. AW2/1-4. However, from the testimony of RW2 it is clear that Shiv Kumar had no concern with the property No. A-207. The witness has testified that as per the record the property A-207 was a 200 sq. yds. plot on which a 2 storeyed building (ground and first floor) had been constructed and was meant for residential house. He has deposed that as per the record the said lease was in favour of Sh. Govind Sri Ram Vohra. It is stated that thereafter the name of Sh. K.R. Goel as general power of attorney of Vijay Vohra has been entered. It is stated by RW2 that in the year 1990, notice u/s 125 (for assessment) was given to sh. Vijay Vohra and in 1994 his attorney Sh. Kanshi Ram Goel was called for and a decision was taken after which the house tax bills have been issued to Vijay Vohra C/o Sh. K.R. Goel. It was urged on behalf of the petitioner that the witness in cross-examination had admitted that the original value was assessed in the name of Vijay Vohra who was the owner of the property in question till date. The Ld. Counsel submitted that merely because the bills were being sent to Vijay Vohra C/o K.R. Goel would mean nothing as anybody could pay the house tax and the name of Vijay Vohra still stated in the records as owners of the property A-207 Meera Bagh. There would have been some force in this submission of the learned counsel for the petitioner but for the fact that ordinarily house tax bills are not raised in the name of owner as C/o his tenant. Besides, Sh. K.R. Goel is described in the tax record as the general attorney of the owner Vijay Vohra and a copy of the power of attorney and an agreement to sale were placed on the record of the house tax department. Thus, clearly the occupation of AW2 K.R. Goel at A-207 Meera Bagh is not in the capacity of tenant but something more, even if it is admitted that an agreement to sale does not transfer title. RW2 himself stated that till such time transfer duty was not paid the tax would not be assessed in the name of K.R. Goel. This evidence is sufficient to knock the bottom out of the petitioner’s case setting out the need of K.R. Goel AW2.

10. The petitioner no. 1’s case has been that once the respondent vacated his portion AW2 K.R.Goel would come to occupy it as he was dependent upon her for residence. However, in the light of the testimony of RW2 which discloses that Sh. K.R. Goel had entered into an agreement to purchase A-207 Meera Bagh and certain documents have been executed on 16.7.90 (general power of attorney) and 10.1.92 (agreement to sale) it is clear that he had his own property in which he was residing as a de facto owner though no title deeds have been executed in his favour. He cannot be treated as being dependent on petitioner no. 1 for residence. Thus, the petitioners have failed to

C.R.P. 972/1998 Page 5 of 9 prove their bona fide need for the tenanted premises as regards the specific case of the need of Sh. K.R. Goel.

11. The petitioner no. 1 has also submitted that her other children 3 sons along with their grown up children were also dependent upon her for residence. However, in the testimony of AW 1 their specific need has not been stated as to which of the other sons required the tenanted premises which consisted of 2 rooms on the first floor. The evidence does not show which son and his family is in possession and use of which portion of the 6 rooms (including the new room constructed on the third floor) so that it could be determined as to whether or not their need is made out. However, as pointed out earlier both in the petition as well as in the evidence the case set up by the petitioner no. 1 is the need of K.R. Goel who was allegedly residing in a tenanted premises and whose presence petitioner no. 1 desired in the premises to be vacated by the respondent, which case stands disproved.

12. Thus, the petitioners have failed to prove their case of bona fide need of the tenanted premises………………………………………”.

5. During the course of hearing a point had arisen as to the maintainability of a revision petition under Section 25-B(8) of the Rent Act at the instance of a landlord whose eviction petition filed against the tenant on the ground of bona fide requirement is rejected by the Rent Controller. That doubt about the maintainability of such a revision petition under Section 25-B(8) arose in view of a decision of the Supreme Court in “Major D.N. Sood v. Shanti Devi 1997(10) SCC 428 wherein it was held that a revision petition at the instance of a landlord is not maintainable. That was a case where revision petition was filed by the landlord against the order of the Controller granting leave to contest the eviction petition to the tenant. In the present petition eviction petition has been dismissed after trial.

A Division Bench of this Court in the case of “R.S.Bakshi vs H.K.Malhari & anr.”, 2002(62) DRJ 272 had held even after

C.R.P. 972/1998 Page 6 of 9 noticing the decision of the Apex Court in Maj. Sood‟s case(supra) that a revision petition at the instance of a landlord is also maintainable. The Division Bench decision of this Court in R.S.Bakshi‟s case(supra) had held the Supreme Court‟s decision in Maj. Sood‟s case(supra) to be per incuriam because of the fact that earlier three Judges Bench judgment of the Supreme Court in “Vinod Kumar Chaudhary vs. Smt. Narain Devi“:AIR 1980 Supreme Court 2012, wherein it was held that a revision petition even at the instance of an unsuccessful landlord is maintainable under the Rent Act, was not brought to the notice of the two Judges Bench which had given the judgment in Major Sood‟s case. In Vinod Kumar‟s case the landlord had lost after trial, like in the present case. So, in view of the Division Bench decision of this Court given after considering the two conflicting judgments of the Supreme Court to the effect that such a revision petition is maintainable. I shall now proceed further to consider the petition on its merits.

6. From the paras extracted from the impugned order of the Controller it is clear that the learned Controller had not agreed with the objection raised by the respondent that the eviction petition was not maintainable since his landlord was the owner-landlord of the tenanted premises. The eviction petition was however rejected on the ground that the son of the deceased petitioner who was living separately in a rented house and for whose residence eviction of the respondent-tenant was being sought had in fact after the filing of the eviction petition by his mother entered into an agreement to sell in

C.R.P. 972/1998 Page 7 of 9 respect of the house in Meera Bagh where, as per his own deposition as AW-2, with its owner and he was not living there as a tenant and therefore the requirement of the tenanted premises earlier projected in the eviction petition for accommodating this son of the deceased petitioner was no more there. However, in my view this conclusion reached by the learned Controller was based on evidence. A perusal of the trial Court‟s record shows that no documents showing that AW-2 Kanshi Ram had entered into any sale transaction with the owner of the property in Meera Bagh where he claimed to be staying when he had come to Court for giving evidence. In his evidence he had categorically stated that he was living in a house in Meera Bagh as a tenant and he was not cross-examined at all. Therefore, his statement to that effect stood admitted by the respondent-tenant and ignoring that admission the learned Controller simply on surmises and conjectures came to the conclusion that he was living in the house in Meera Bagh not as a tenant.

7. The learned Controller has also observed that the deceased petitioner in her testimony had not stated as to which of her other sons required the tenanted premises which comprised of two rooms on the first floor and also as to which son was occupying which portion and so it could not be determined whether any need for premises had been made out or not. In my view, these findings are totally unreasonable. The case of the petitioners was very clear in the eviction petition as well as in their evidence that their family was of 23 members while they were having only five rooms. That part of their

C.R.P. 972/1998 Page 8 of 9 case has not been rejected by the controller nor was it disputed by the respondent tenant. So, the mere fact that it was not clarified in evidence as to which portion was occupied by which of the family members could not have resulted into rejection of petitioners‟ wholly justified claim for the eviction of the respondent. This reasoning of the learned controller cannot be sustained at all.

8. In my view there could not be a better case than this justifying passing of the eviction order against the tenant in view of the large size of the family of the petitioners and the availability of only five rooms with them.

9. This revision petition is therefore allowed. The impugned order of the controller is set aside and eviction of the respondent-tenant from the tenanted premises is ordered. He is however given six months time to vacate the tenanted premises.

P.K BHASIN,J

March 28, 2012

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