Judgment:
Santosh Duggal, J.
(1) This revision petition under Section 25-B(B) of the Delhi Rent Control Act, 1958, (for short 'the Act'), has been filed after petitioner's application for leave to contest the petition was declined. The eviction petition had been filed by the landlady under the provisions of Section 14D of the Act, pleading that she was landlady of premises : bearing No. B-368, Nirman Vihar. Delhi, which were let out to the petitioner herein in the year 1981, and that she was a widow. She has set out in detail the reasons as to why she sought vacant possession, stating that the demised premises were the only property owned by her, and that these were let out to the tenant for residential purposes, and now she required them for her own residence as she had no other alternative reasonable accommodation. She further pleaded that she had been constrained to hire a rented accommodation in Delhi consisting of one room only with a small kitchen situated in a congested locality and the same were highly inadequate for her requirements, because she needed the amenity of a drawing-cum-dining room, a store room, as also a pooja room besides independent bath room which facility the tenanted premises did not offer. She further stated that she has only one son named R.K. Anand who belongs to Himachal Pradesh Ias cadre, and that after death of her husband in 1980. she went to live with the said son, but he was posted at Shimla which, being a hill station, was wholly unsuitable to her for reasons of health and that is why she was constrained to take some accommodation on rent in Delhi. It was, however, disclosed in the eviction petition filed in 1989, that the son of the petitioner was posted, at the time in Delhi, and was occupying a government allotted flat which was on the third floor in a seven storeyed building at Kharak Singh Marg, New Delhi, and that accommodation was also not suitable, for her in view of her old age and health problems, wholly, associated with old age.
(2) In the application for leave to contest, the tenant (petitioner herein) controverter the pleas of the landlady as set out in the eviction petition by contending that she had always been living with her son wherever he was posted, and that she even at the time of filing of the eviction petition was residing with the said son in the flat at Kharak Singh Mark, and that it was wrong to say that she had taken on rent some other accommodation. He also disputed the fact that Shimla's climate was not suitable to her, contending that she had been staying with her son since 1981, after the death of her husband, and it was not out of any genuine need for the premises that the eviction petition had been filed, but only with the object of having increase in rent. It was also contended that the premises had been rented out for residential-cum-commercial purposes, and he was carrying on his business under the name and style of M/s. Ravi International in the said premises from the inception of the tenancy, and that demand for increase of rent was made persistently by the landlady through her son R.K. Anand by various letters and, in fact, caller rent was increased from Rs. 2000.00 to Rs. 2200.00 p.m under pressure and that on his declining to agree for further enhancement of rent, the. landlady came up with the eviction petition in the year 1985 invoking Clause (e) of Section 14(1) of the Act, setting out pleas of bona fide requirement which are same as in the present petition.
(3) The Additional Rent Controller, after consideration of the facts stated in the eviction petition, application for leave to contest filed by the tenant, and the reply affidavit filed by the landlady, came to the conclusion that in view of the fact that the petitioner before him had no other resident accommodation in Delhi, and further opining that judicial notice could be taken of the fact that places like Shimla, where her son was ordinarily posted as an Ias officer of Himachal Pradesh cadre, could not be suitable to a person of her age, and held to that extent her plea was justified. Tenant's contention that she was ordinarily residing with her son wherever he was posted, was not, however, wholly rejected, because there are certain observations in the order to the effect that landlady's plea that she was living in a tenanted accommodation consisting of a room and a small kitchen had not been specifically proved on record, and further that in view of the fact, as stated by the tenant, that the building where the son was staying had lifts; her plea that that flat was not suitable being on the third floor was not tenable. Nevertheless the Addl. Rent Controller held that since now the son has been posted back to Shimla, which fact as a subsequent event could be taken note of, and for the reason that owing to various factors, a place like Shimla cannot be comfortable for a lady of her age, particularly during winter months, and since she has no other residential accommodation in Delhi of her own, she was entitled to have vacant possession of her property, which was under tenancy of the petitioner herein. After dismissing the application for leave to contest, an eviction order was passed in terms of the site plan annexed with the eviction petition, allowing three months time to the tenant to vacate the premises.
(4) The grievance which is made in this revision petition, as argued through Shri R.K. Anand, is that once the Rent Controller came to a finding that the petitioner had taken a wrong, rather a false plea, to the effect that she had been constrained to take one roomed accommodation on rent, for the reason that Shimla was not suitable for her, nor the place where her son was residing while posted in Delhi, and further in view of the fact that earlier on similar pleas, as set out in the petition filed under Section 14(1)(e) of the Act, leave to contest was granted, there was no reason for the same to have been refused in the present case.
(5) Mr. Anand had dwelt on this point to a considerable extent contending that the fact of bona fide need was an essential factor to be established by a landlord of the premises while seeking eviction, and to that extent there was no distinction whether the eviction petition had been brought under Clause (e) of proviso to Section 14(1) or Section 14D, and that if on identical pleadings in earlier eviction petition, it was thought to be a fit case to grant leave to contest, there was no justification for the same being refused in the present case.
(6) The learned Counsel placed reliance on observations of the Supreme Court, in the case (1991) 1 Scc 87. Surjit Singh Kalra v. Union of India and Others, to the effect that even in eviction petitions brought by the 'classified landlords, under the provisions of Sections 14-B to 14-D of the Act;*irrespective of the fact that expression 'bona fide requirement' was missing from these Sections, the landlord was not absolved from proving that his requirement was bona fide, and conversely the tenant would not be precluded from contending that it was not so. Another decision cited by Mr. Anand, is in the case, which was specifically under 'Section 14D, (1991) 7. Scc 101, Emc Steel United, Calcutta v. Union of India and Another, decided on the same date by the same Bench, and there also it was emphasised that although a summary procedure has been provided to recover possession of the premises as expeditiously as possible and without the usual trials and tribulations, but even then a landlady who sought eviction on the grounds of being a widow by virtue of the provisions of Section 14D, has to prove her bona fide need for the premises for her own residence like other landlords. This observation was made while repelling contention put forward on behalf of the tenant in that case that there was possibility of abuse of the provisions of Section 14D by the landlady, and in that context, it was observed that this could not be so, as she would have to satisfy the Court, about her bone fide need for the tenancy premises.
(7) Dwelling upon this observation, Mr. Anand contended that if bona fide requirement remained the important ingredient to be satisfied in this case under Section 14D, the fact that the earlier application for leave to contest had been granted on identical pleas, was itself a sufficient ground for leave being granted in this case also, because the ingredient of bona fide requirement has to be satisfied in the same way, as in the first petition under Section 14(1)(e).
(8) Mr. Arun Mohan appearing for the landlady/respondent urged, on the other hand, that the par-meters in the case brought under clause (e) of proviso to Section 14(1) were different from those in the cases brought under special provisions of Sections 14-B to 14-D, and that this distinction has been noted even in the case of Surjit Singh Kala (supra), when while taking a comparative view of the provisions of Section 14(1) vis-a-vis those of Sections 14-B to 14-D, the Court observed that the provisions of Section 14(1)(e) were available to landlords in general or to such landlords who were not classified landlords under Sections 14-B to 14-D, and that latter category of landlords, namely, those treated as classified landlords had been conferred certain rights which were to be treated independent of the rights under Section 14(1)(e) of the Act. Mr. Arun Mohan further submitted that mere institution or even pendency of a petition under Section 14(1)(e) or grant of leave to contest the same would not operate as a bar in the way of the landlady, to bring an action under 14-D. He placed reliance in support of this contention on a decision of the Supreme Court : AIR1991SC99 , K.L. Malhotra v. Prakash Mehra (Smt.), where it was observed that :
'....MOREOVER,it .does not appear to us on a plain reading of Section 14D itself that the benefit conferred on a widow for applying for eviction of the tenant from her premises is at par with the general benefit conferred on the landlord to seek for eviction on the ground of bona fide need. Admittedly, on the face of it the class on which the benefit was granted by Section 14D is per sc different from the class whose rights have been protected by Section 14(1)(e).'
(9) The learned counsel also pointed out that the factors to be proved in an eviction petition under Section 14(1)(e) are altogether different, such as that the landlord must prove himself to be the owner of the tenancy premises, and the premises must have been let out exclusively for residential purposes. He argued that even though it could be accepted for the sake of argument that the factor of bona fide requirement was the common factor in both the petitions, though according to him, the standard of proof would vary, but even then on the tenant disclosing by affidavit in the leave to contest application, in the case under Section 14(1)(e) that the landlady was not the owner of the premises or the same had not been let out exclusively for residential purposes, but for residential-cum-commercial, or was being used as such, the Rent Controller would be justified in according leave to contest. In view of this, according to the learned counsel, the mere fact of leave to contest having been granted in the earlier application, would not entitle the tenant to contend that leave to contest ought to have been allowed in the latter petition filed under Section 14D, brought on similar pleas of personal requirement, and the tenant coming forward with the same objection, leave ought to be granted.
(10) I agree with this line of arguments advanced by the learned counsel. There would have been some force in the contentions raised on behalf of the petitioner, in case there had been a finding of the Court in the earlier petition under Section 14(1)(e), adverse to the landlady on the question of bona fide requirement. In that event, it could legitimately be urged on behalf of the tenant that the plea of personal requirement having been disbelieved on merits, it was not open to the landlady to urge the same ground overagain. But here is a case where the eviction petition, under Section 14(1)(e), brought as far back as in the year 1985 is still pending. In view of the settled position the question of ownership and letting to be for residential purpose, being important ingredients in a petition under Section 14(1)(e), it can be assumed that the Controller would have proceeded on the basis of the facts disclosed, by affidavits of tre parties.
(11) That being so, tenant's application for leave to contest in the petition under Section 14D. has to be decided on merits on the basis of affidavits, without being influenced by the fact of earlier application of leave to contest having been allowed and without reference to any other document, because the emphasis in Sub-section (5) of Section 25B is on the disclosure of such facts by the tenant by affidavit as would disentitle the landlord from obtaining an order for recovery of possession. This expression has been interpreted in the case : [1983]1SCR498 , Precision Steel and Engineering Works and Another v. Prem Deva Niranjan Deva Tayal, where the Court while disapproving the course adopted by the Courts in that case by referring to documents filed by the parties in support of the affidavits, enunciated the principles that should guide the Controller, by laying down that at this stage only affidavits are to be taken into consideration, and in case affidavit of the tenant disclosed such facts as would on face of it, disentitle the landlady to acquire possession of the premises, leave should ordinarily be granted, otherwise it would be declined. This is because provisions of Section 25B. provide for summary trial, as chapter heading namely, 'Summary trial of certain applications' indicates
(12) In this view of the matter, only affidavits of the parties have to be taken into consideration while coming to a finding whether a case for grant of leave to contest has been made out or not. A reading of the affidavit of the petitioner in this case reveals that his emphasis is primarily on the fact that the landlady did not require the premises for her own residence, as she cannot live in this house by herself, being an old lady, and had necessarily to live with her son, and that she has always done so since 1980 after her husband died, and there was no truth in her plea that Shimla did not suit her for reasons of health, and that she has been very happy and comfortable there, and further that she has been living in a flat with her son in Delhi, in support of which he has filed electoral roll showing the address where she was residing, the same as that of her son. .
(13) Mr. Anand contended that in view of the background shown by him of an attempt increase of rent, and in view of the fact that the landlady could not be expected to live by herself at this old age, her plea for possession of the tenancy premises was not bona fide and as such the tenant ought to have been accorded opportunity to prove his allegation that she did not need the tenancy premises for her residence. He placed reliance on a judgment arising out of Tamil Nadu Building (Lease and Rent Control.) Act, 1960, : [1988]3SCR384 . Hameedia Hardware Stores v. Mohan Lal Sowcar, where existence or otherwise of bona fide requirement was a relevant factor, it was held that whenever there was a stipulation that the requirement should be shown to be bona fide, it was essential to be shown that the need of the landlord was genuine and not a mere desire to live in the property owned by the landlord or the landlady. He contended that in the present case also, this was almost a case of a desire of the respondent for living in her own house, if at all it could be said that she wanted to live in that house, but it was not a case of real bona fide need.
(14) He further elaborated his contention by saying that in the earlier petition, even evidence had been recorded and the respondent while appearing as her witness did not reiterate on oath her plea that Shimla was not suitable to her for reason of health or old age. This could be taken into consideration if it was open to the petitioner to ask the Court to also take note of facts, that are not contained in the affidavit filed along with leave to contest application. As already noted, at the stage of considering the leave to contest application, only affidavits of the parties are to be taken into consideration, and the affidavit of the tenant, on face of it, should disclose such facts as would disentitle the landlady from seeking possession of the tenancy premises. In case, there had been a final adjudication of the eviction petition under Section 14(l)(e) even then the petitioner could have some case in opposing the plea of the landlady. In the present case, the statements made by the parties, apart from the fact that they could not be taken note of this stage, are still to be adjudicated and evaluated by the concerned Court.
(15) On a reading of the grounds as pleaded by the respondent in the present eviction petition, it becomes apparent that she has pleaded in detail as to how it was not possible for her to stay with her son whose ordinary place of posting is Shimla, as that being a hill station, was not suitable to her due to health reasons. She has elaborated this by staling that she suffered from blood pressure and breathing problems because of height where the hill station was situate. The mere fact that at the time the leave to contest application was being considered by the Rent Controller, there was no sufficient proof to show that she had taken a one roomed accommodation on rent in Delhi, would not by itself mean that the landlady stated as a ground for not being able to stay with her son, and her need for the tenancy premises for her residence, was not true.
(16) The case could have been different it the tenant had been able to disclose by affidavit that the respondent owned or possessed in her own right some other residential accommodation in Delhi. Then the question of comparative assessment could have arisen as to whether seeking vacant possession of the premises by her was bona fide or not. On petitioner's own showing she does not have even the premises which she claimed to have taken on rent, in her occupation. There is no disputing the fact that the son of the respondent/landlady has been transferred back to Shimla. So the question as to whether she was staying with her son while he posted in Delhi ceases to be relevant. The Rent Controller has rightly observed that a judicial notice can be taken of the fact that officers of the Ias cadre are mostly posted in their parent State, and if posted outside, have to be repatriated back to their State cadre, with the result that the normal place of posting of the son of the landlady is bound to be Shimla or some other place in Himachal Pradesh which are normally hill stations. The fact that immediately after the death of her husband, which is stated to have taken place in December 1980, the house was given on rent and that the respondent for some time, stayed with her son, as alleged by the petitioner, is wholly inconsequential at the present juncture because even if she started living with her son immediately after the death of her husband, it would only be by her experience of life at Shimla that would make her alive to the difficulties faced by her from health point of view or otherwise. The important factor is that, as at present, she has no other residential accommodation in Delhi and she is justified in staling that she cannot stay in Shimla for health reasons, and it would be, in fact, a hardship to her, in case she is deprived of the possession of her house which is under the tenancy of the petitioner.
(17) It is true, as observed in the case 1991 (2) R.C.R. 2299, Shambhu Nath v. Surinder Kumar Sharma, that the Court can come to the assistance of only honest and straightforward litigants and not of a person who conceals or distorts facts and creates artificial scarcity because in such like matters, the Courts have to insist on utmost good faith. The facts of that case are, however, altogether distinguishable from the facts of the present case, and a reading of the judgment would reveal that a string of lies had been stated by the landlord personally or through his son, or the Court could smack of deliberate attempt at suppression, and it was manifest from record that the case pleaded by the landlord was that of a self created insufficiency of accommodation. It was in that context that observations, as relied upon by Mr. Anand, were made. In the present case,no such circumstance exists. Merely because the Addl. Rent Controller has disbelieved the respondent/ landlady in respect to one fact, namely, her having taken on rent some accommodation in Delhi, which was in the absence of documents and other sufficient proof, does not mean that his conclusion that nevertheless she was in bona fide need of the tenancy premises was not sustainable.
(18) Mr. Anand laid emphasis on the observations made in the impugned order to the effect that tenant's plea that the landlady cannot manage on her own and as such cannot bona fide require the tenancy premises for her residence, had no substance, for the reason that she had married daughters and grand-children, who could be staying with her and look after her. This alternative, according to Mr. Anand, ceased to be available for the reason that one of the married daughters had died, and the other one was living out of Delhi, and as such the observations made that the respondent can be looked after by her married daughters, or children even while living in the house in dispute were not correct.
(19) Be that as it may. I do not think that it is correct approach to speculate as to how the landlady intend to manage while living alone in her own house, because it is her own outlook, and she should be left alone to decide as to how to look after herself, and there can be no assumption that she cannot manage on her own. The paramount factor remains her need for the present house. Observations by the Supreme Court in the case : (1996)5SCC353 . Smt. Prativa Devi v. T.V.Krishnan, where also such a plea was taken by the tenant, are very pertinent, when the Court, while disapproving the view adopted by the High Court held that :
'...THEreason given by the High Court that the appellant is an old lady aged about 70 years and has no one to look after her and thereforee she should continue to live with Shri Chatterjee, was hardly a ground sufficient for interference.'
(20) This should, thereforee, be no consideration to non-suit the landlord, and deprive her of the right to live in her own house, particularly when she has no other place to live in Delhi and she has very specifically explained by very tenable reasons, her inability to stay with her son. Once this need is shown to exist, then the earlier background when the son might have asked for some increase of rent, which was as far back as in 1983. ceases to be relevant, and I do not find any error committed in the approach adopted by the Addl. Rent Controller in upholding the claim of the respondent of being put into vacant possession of the tenancy premises, particularly when she has given an undertaking, by affidavit in this Court, during hearing that she would never let out this property, once she gets vacant possession of the same, on a higher rent or sell or transfer the same and that she would reside herself in it, and if at any time, she was found to have parted with possession of the property, in any manner, then she would be liable to all the consequences of violation of an undertaking given to Court.
(21) Mr. Arun Mohan further states that it is the intense desire of the respondent/landlady, at this old age, to live and, in fact, die in her own house and she has every intention to occupy the same for her residence, and not to part with possession of the same in any manner.
(22) It may be mentioned, that an offer made by the petitioner during hearing through Mr. R.K. Anand for withdrawal of the present revision petition, in case he was given two years' period to hand over vacant possession, has not been acceptable to the landlady for the reasons recorded in the order dated October 15, 1992, to the effect that apart from the fact that the petitioner had earlier turned down the offer of the landlady of 6 to 9 months time being given to him, which was made at the outset of the start of the arguments, otherwise also she cannot afford to wait for two years to get possession of her house in this old age, which was stated to be 77 years, and non-availability of any other residential accommodation to her in Delhi. I find substance in this plea of the landlady, because the mere fact that the premises were let out at one point of time to a tenant does not mean that she should be deprived for all time to come the right to live in her house, even when there is a dire need for the same, and even when there is old age, and staying with the children was not convenient for one reason or the other. As held in the case of Smt. Prativa Devi (supra), that desire of the landlord in the evening of his or her life, was also a factor, deserving of recognition.
(23) For all these reasons, I do not find any merit in this revision petition. The same is dismissed with costs. Counsel's fee Rs. 2000.00 .
(24) The petitioner shall hand over vacant physical possession of the tenancy premises to the respondent/landlady on or before 15th November 1992.