| SooperKanoon Citation | sooperkanoon.com/694223 |
| Subject | Tenancy |
| Court | Delhi High Court |
| Decided On | Oct-09-1998 |
| Case Number | C.R.No. 898/95 |
| Judge | C.M. Nayar, J. |
| Reported in | 1998VIAD(Delhi)605; 76(1998)DLT165; 1998(47)DRJ602; 1998RLR627 |
| Acts | Code of Civil Procedure (CPC), 1908 - Sections 115; Delhi Rent Control Act, 1958 - Sections 14(1) |
| Appellant | Mahesh Chand Gupta (Dr.) |
| Respondent | Shri Shiv Sarup Gupta |
| Appellant Advocate | Mr. Ishwar Sahai, Sr. Adv. and; Mr. A.S. Chadha, Adv |
| Respondent Advocate | Mr. Adarsh Dayal and ;Ms. Sumti Anand Advs. |
C.M. Nayar, J.
1. This petition is directed against the judgment dated August 24, 1995 passed by Shri H.S.Sharma, Additional Rent Controller, Delhi. The eviction petition of the petitioner filed under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') was dismissed.
2. The petitioner let out the premises at D-219, defense Colony, New Delhi comprising of two bed rooms with bath rooms, study room, drawing-cum-dining room, glazed verandah and kitchen on the first floor and a servant quarter on the barsati floor by an Order dated July 22, 1978 passed by the Additional Rent Controller, Delhi in a petition under Section 21 of the Act. The premises were, admittedly, let out for residential purposes. It was next next alleged that the respondent illegally and unauthorisedly took forcible possession of one room on November 1, 1987 and civil and criminal proceedings are pending inter-se between the parties. The petitioner has claimed that he does not own any alternative suitable residential accommodation. His family comprises of himself, his wife and a son who was studying in MBBS. The mother-in-law of the petitioner was suffering with number of ailments and required the help of the petitioner who is a Doctor by profession. thereforee, she kept on visiting him and also started living in the premises along with the petitioner and his family. The need of the petitioner was stated to be bona fide as he required the accommodation for purposes of his residence and the residence of the family dependent upon him as well as for clinic for which one room and lobby was being used. The petitioner's wife possessed a plot bearing No.C-217 Sarvodya Enclave, New Delhi but she bequeathed it to her son Dr.Anil Gupta. The said Anil Gupta allegedly raised construction on the plot in the year 1986 and let out the same to a company known as M/s G.G.Aviation Services Co. The entire property at 2574 Sir Syed Ahmad Road, Darya Ganj, New Delhi was owned by the petitioner as Karta of the HUF and the property, admittedly, is commercial in nature.
3. Notice of the eviction petition was issued to the respondent and leave to contest was granted. Accordingly written statement was filed wherein it was pleaded that the petitioner had not come to the Court with clean hands and concealed material facts. The respondent was in possession of the entire first floor and second floor and eviction petition of the premises was not maintainable. The petitioner was not owner of the premises and he only wanted to increase the rent from Rs.1200/- to Rs.6000/-. thereforee, he had committed fraud at the time of creation of the tenancy under Section 21 of the Act. House No.C-217 in Sarvodya Enclave was available to the petitioner and the petitioner did not have any clinic in the premises in suit. The need was, thereforee, not bona fide.
4. The matter was put to trial and the following findings were recorded in respect of each of the grounds:
ownerSHIP
5. The petitioner was held to be the owner of the premises and no serious challenge has been made by learned counsel for the respondent/tenant at the time of arguments.
PURPOSE OF LETTING
6. It was held that the property was let out for residential purpose alone nor it was pleaded by the respondent that the premises were let out for any other purpose other than residence.
AVAILABILITY OF ALTERNATIVE RESIDENTIAL ACCOMMODATION AND THE NEED OF THE PETITIONER
7. The learned Additional Rent Controller held that the property bearing No.C-217 Sarvodya Enclave was never occupied by the wife of the petitioner and the claim of the petitioner that the house was constructed by his son Dr.Anil Gupta appeared to be sham. The wife of the petitioner had died during pendency of the proceedings and, thereforee, the claim of the petitioner for his wife was not decided. Similarly, the claim for requirement of accommodation of mother-in-law of the petitioner was also rejected as the learned Rent Controller came to the conclusion that she was residing with her one son at Rohtak Road and was not turned out by her sons. The claim for accommodation for the son of the petitioner Munish Gupta as well as his wife and one child dependent upon him was also rejected on the ground that the petitioner was in possession of two bed rooms, drawing-cum-dining, kitchen, two bath rooms on ground floor of the premises and the petitioner having his regular clinic in his property at Darya Ganj, there was no need for any further accommodation and the plea for having a clinic in the house was accordingly rejected. Lastly, it was held that the petitioner could not be permitted to say that house No.C-217 Sarvodya Enclave, New Delhi was not available to him as it belonged to his wife.
8. Presently, the family of the petitioner who is in need of the tenanted premises comprises of the petitioner himself, son, Dr.Munish Gupta and his wife and two children. They are all living in the demised premises. The Darya Ganj property is commercial in nature and the petitioner has a clinic in one portion, the other portion, it is stated, is occupied by the tenant. The petitioner is a Doctor by profession and so is his son. They may be having a clinic in Darya Ganj but Doctors do have some sort of medical arrangements to attend to the patients in emergency in their homes as well. The learned Additional Rent Controller discarded the plea of the petitioner for having his clinic at residence on non-existent grounds though it is stated that the petitioner might be keeping some medicines in his house to attend emergency patients. It is well settled that a Doctor in private practice often sees his patients in his home as well as his clinic whenever the need for such purpose arises. By no stretch of imagination the plea can be substantiated that no clinic can be in existence in the residence of the Doctor such as the petitioner and his son. The accommodation in possession of the petitioner and his family is, admittedly, two bed rooms, drawing-cum-dining, kitchen, two bath rooms on the ground floor of the premises. In case, part of the accommodation is used by the petitioner and his son who are both Doctors by profession to see patients in emergency or to keep the basic medicines for treatment, they will require some accommodation in the premises for that purpose. It is not understood as to how the Additional Rent Controller discarded this requirement though the need for the same has not been ruled out.
9. The word 'himself' and 'family' in the statutory provision of Section 14(1)(e) will clearly include the married sons and it cannot be said that the married son can move to another accommodation in which he holds part of the share. The petitioner is 78 years of age at present and it is only his natural requirement that his son along with his family live with him in that age so that he is cared for and looked after. The entire position of the requirement and need in such circumstances has been stated in the judgment reported as I.L. Mehta v. Smt.Hira Devi 1971 All Ind RCJ272. Paragraph 17 may be reproduced as follows:
'17. In another case in which the word `himself' came up for interpretation was Richter v. Wilson. In this case the landlord wanted to take possession of the upper floor to install there a couple so that they could look after him better. The courts, however, found that the couple who was to be brought to the house was to live as separate house-hold from the landlord and, thereforee, it could not be said that the accommodation to be occupied by them should be considered as residence for landlord himself. It will be seen that the basic distinction made was that the couple for whom the accommodation was sought was to rent it as a separate residence. Applying this ratio also the requirement for the 4th son who is living separately has rightly not been taken into account by the courts below as the requirement of the landlady. It is only the requirement of the married sons who are already living with her in the same premises jointly that has been taken into account. In the Court of Appeal case of Richter v. Wilson, reference is made to Bloomfield v. Westley which is helpful for the interpretation of the word 'himself'. The eviction was sought by the landlady on the ground that she required it for her niece who was to come and live in the premises. The finding by the courts, however, was that the niece was to have her own kitchen and was to have her own separate flat, was going to be in separate occupation of top floor and not as a member of the family of her aunt and it was on this ground that the claim of the landlady was negatived. But it was observed that if it was proved that the niece was going to be member of the family and was coming to live with the aunt it would have been a different matter. Lord Denning, M.R. observed as follows:-
'I can understand that there may be cases where a landlord or landlady it may be a young couple, who have an addition to their family by way of children, or it may be a couple, who want to take in an aged parent, could quite reasonably claim an extension to their premises on the ground that the extension was reasonably required as a residence for a member of the family, I quite agree that is a reasonable and a likely way in which this Act. The Rent and Mortgage Interest Restrictions (Amendment) Act, 1963 Sch.1 para (h) might operate.'
Observation of Lord Denning, M.R.shows that if the premises were required for taking aged parent it could be reasonable to claim that the premises were required for landlord himself. It would thus be seen that the word 'himself' cannot be taken to exclude the sons simply on the ground that they are independent and earning their living and are in a position to set up their separate residence. With very great respect I feel that Falshaw C.J. and Mehar Singh J. have given too restricted an interpretation to the word `himself'. In both cases there is no reference to the English cases which deal directly with the point and contemplate cases of adult members of the family being included in the word `himself'. If the restricted meaning of the word `himself' was to be accepted it would lead to quite anomalous and undesirable results. It is now well settled that where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. To give an illustration, if a family consisting of father, mother and minor sons were occupying a premises part of which is with the tenant, then later on, on the sons getting married and becoming independent and able to set up separate residences it would mean that they must either remain content with living in unsatisfactory accommodation or face the alternative of splitting up the family. This could obviously not be the purpose of the legislature. When the legislature talked of the eviction being ordered on the ground that the premises are required bona fide by the landlord as a residence for himself, it was contemplating an enquiry to find out the reasons given by the landlord for occupation if the premises were bona fide or not. In that connection if the landlady who has her sons even though married and earning, claims eviction of the tenant on the ground that she bona fide requires them as residence for herself it cannot be said that this is prohibited by the statute as the word `himself' cannot necessarily exclude adult and earning members of the Family. As noticed earlier, the English authorities lay down that the test in each case whether the landlord requires the premises for himself is to see whether the person for whom the premises are required is coming to live as a member of the family so as to fulfill the need of the landlord himself. Of course, if it could be proved that the sons will be living separately with separate mess from their mother or father than it is possible to say that the requirement of the landlord for the need of his or her sons is not bona fide requirement as a residence for himself. It is in this connection that the traditions and customs of each society have to be taken into account in determining the meaning of the word `himself'. It is true that the joint family system is not so much prevalent and this system is disrupting, but even then our social system has not yet reached a stage where parents and married sons do not live together if it is possible to do so. Rather there is still a bona fide and genuine desire for the parents and the sons to live together in the same house if it is possible to do so. In the present case the landlord obviously has no means of livelihood and the husband is an old man and cannot reasonably look after the comforts of the family. In such a situation if the sons who are now grown up and are married and are in a position to set up residence for themselves were asked to go out of the premises on this ground that their living together with the mother and father was not a bona fide requirement of the landlady, it would be giving a big blow to the relationship between the parents and the children and in importing the practices which are as yet foreign to our social system. In our society it is still considered an act of great piety for sons to look after their parents and to live together even if the sons and the parents respectively are in a position financially to live separately and have separate residence. Somehow a concept is firmly rooted in our society that the grown up sons and parents from one homogeneous family and living separately is only accepted when it is inevitable. In that view, thereforee, the meaning to the word `himself' must be constructed in the context of the development of our society and the realities of the situation. If that meaning was not to be given to it, it would lead to quite strange and uncalled for development. Take a case where the premises was let out to tenants when the sons were not married and were minor and thereforee, there was sufficient accommodation for every one around. If later on the sons became major and got married and are earning independently must they be asked to split the family or face the discomfort in the restricted accommodation. I cannot persuade myself that the intention of the legislature was to disrupt such a family even when sons and father were genuinely and bona fide wanting to stay together. Similarly take another instance in which a son is landlord and his parents happen to be in an affluent position and able to set up residence, must it mean that the parents must live separately from their son even if he happens to be the sole child. I cannot persuade myself to hold that the only eventuality in which the parents can be permitted to live with their sole child, i.e. the son in the premises which have once been tenanted must be in the circumstances of their being either penurious or in ill-health. That would according to me be laying down the conditions which are neither desirable nor proper. In the present case the landlady who is the owner and the husband who is admittedly old requires the presence of their sons to live with them and it cannot be said that the accommodation required for their sons is not bona fide required by the landlady herself. I can understand that the requirement of the 4th son who is living separately cannot be taken into account but I fail to see why the requirement of three sons even if they are in a position to set up separate residences cannot be included in the requirement of landlady for the purpose of requiring accommodation for herself in the first part of proviso (e) of sub-section (1) to section 14 of the Act. In my view, thereforee, the courts below came to the correct conclusion and there is no ground for interference with this order.'
10. In S.K. Arora v. S.L. Sarna 1982(1) Rent Control Journal page 297 the learned Judge considered the import of the word 'himself' in paragraph 45 which reads as follows:
'45. The question which has arisen in the present case had not arisen when I decided the aforesaid case of Lala Ram v. Smt. Kalawati (supra). As I noticed earlier this case is concerned to the 'bona fide requirement by the landlord for occupation as a residence for himself'. This case is not concerned with the 'bona fide requirement for any member of his family dependent on him'. The requirement in this case of the landlord that his son or daughter not living with him, should come and live with him is a requirement of the landlord himself and is not the requirement of any member not living with but dependent on him. Here the landlord is dependent on a member of the family whom he wants to come and reside with him for his own needs. In such a situation the expression 'himself' is wide enough to include such requirement of the landlord 'himself'. It will be noticed that the requirement is not for the children but for a family who is required to come and live in the premises so as to look after the landlord. If in the situation like the present, landlord wanted a Doctor or a nurse or their family to stay with him, the requirement would still have been of the landlord himself. But instead of calling a Doctor or nurse to look after him and his wife, the landlord decides that the suitable person to look after him would be his son and his family or a daughter and her family. I think it should come in the expression 'bona fide requirement as a residence for himself'. It is not a question of splitting a family or reuniting the family. It is purely a question of the requirement of the landlord'.
11. The Supreme Court in Hiralal Kapur Vs . Prabhu Choudhury : [1988]2SCR1058 considered the requirement of the need of a lawyer to use a room in the premises as his office which was held not to be extraneous to scope and content of the provisions relating to bona fide requirement. Paragraphs 10 and 12 of this judgment read 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 S.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. 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 cl.(e) of the proviso to S.14(1).
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.'
12. The Division Bench of this Court in Sushila Devi & others Vs . Raghunandan Pershad & Ors. : 61(1996)DLT426 also considered the meaning and scope of the word 'himself' while assessing the bona fide need of the landlord for additional accommodation. Paragraphs 35 and 36 of this judgment read as under:
'35. From the cases referred to above the near consensus is that requirement of additional accommodation for married daughters and independent sons and daughters-in-law living outside who visit and stay with the landlord off and on would be the requirement of the landlord for 'himself' and would be a legitimate consideration to judge the requirement of such landlord. We also agree with the proposition and with respect, we do not agree with the contrary view taken in Sat Pal v. Nand Kishore and I.D. Rajpur v. Ramji Dass.
36. 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 most 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. 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.'
13. The Additional Rent Controller next considered as to whether the requirement of the petitioner and his family could be satisfied by an alternative accommodation at Sarvodya Enclave. The following paragraph from the impugned judgment on the plea of the petitioner that he wanted more accommodation in his own house as dealt by the Rent Controller reads as follows:
'When confronted with such a situation, the petitioner came forward with the plea that he wants more accommodation in this house i.e. the house in dispute. Then what was the need for him to seek eviction of the respondent to claim more accommodation for his wife? Section 14(1)(e) of the Act clearly lays down that for claiming eviction from the premises for any member of his family, there has to be dependency of such persons on the petitioner. If we treat wife of the petitioner to be dependent for the purpose of residence, then in the background of evidence referred to above it cannot be said that the wife was at all dependent on the petitioner for her residence. If we treat the petitioner and his wife to be one, then also the need of the petitioner does not sound to be bona fide. I would like to add that two rooms were constructed on C-217 some time in 1984. These two rooms were let out in 1985 itself at a monthly rent of Rs.450/-.Thus in a way, right from the very beginning the house bearing C-217 was never occupied by wife of the petitioner and claim of the petitioner that the house was constructed by Dr.Anil Gupta appears to be sham. In any case, as mentioned earlier, wife of the petitioner had died recently, thereforee, the claim of the petitioner for his wife is not to be decided herein.'
14. The reading of the above will clearly show that the learned Controller has clearly misinterpreted and misapplied the provisions relating to bona fide requirement in the facts of the present case. The property at Sarvodya Enclave was, admittedly, in the name of the wife of the petitioner and was constructed by the savings of the other son of the petitioner Dr.Anil Gupta. The petitioner/landlord at no stage owned this property. His wife has since expired leaving behind a Will dated June 30,1994 which is duly registered in the office of the Sub-Registrar, Delhi. By the said Will the deceased has bequeathed the property in favor of her four sons, namely, Dr.Sunil Gupta, Dr.Anil Gupta, Mr.Deepak and Dr.Munish Gupta. In this background it is not understood as to how the Additional Rent Controller arrived at a conclusion that the petitioner was possessed of an alternative accommodation in these premises. The petitioner all along had lived in portion of the tenanted property along with his son Dr.Munish Gupta, his wife and two small children. There is, thereforee, complete non-application of mind as the Rent Controller has laid down his own criteria to determine the concept of bona fide need.
15. The law is well settled that the landlord is the best Judge of his residential requirement and it is not open for the Court to dictate to him in what manner he should live or to prescribe to him a residential standard of its own. This was so held in Prativa Devi (Smt) Vs . T.V. Krishnan : (1996)5SCC353 . :
'2. The proven facts are that the appellant who is a widow, since the demise of her husband late Shiv Nath Mukherjee, has been staying as a guest with Shri N.C.Chatterjee who was a family friend of her late husband, at B-4/20, Safdarjang Enclave, New Delhi. There is nothing to show that she has any kind of right whatever to stay in the house of Shri Chatterjee. On the other hand, she is there merely by sufferance. The reason 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. The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own. The High Court is rather solicitous about the age of the appellant and thinks that because of her age she needs to be looked after. Now, that is a look out of the appellant and not of the High Court. We fail to appreciate the High Court giving such a gratuitous advice which was uncalled for. There is no law which deprives the landlord of the beneficial enjoyment of his property. We accordingly reverse the finding reached by the High Court and restore that of the Rent Controller that the appellant had established her bona fide requirement of the demised premises for her personal use and occupation which finding was based on a proper appreciation of the evidence in the light of the surrounding circumstances.
3. The learned counsel for the appellant however relies on the following observations made by a learned Single Judge (T.P.S.Chawla,J.) supposed to be based on the decision of this Court in Phiroze Bamanji Desai v. Chandrakant N. Patel to the effect:
'I think, the true test is whether, on an overall and reasonable view, it can be said that the landlord has suitable accommodation `available for his use'. In deciding this question one should certainly have regard to the fact that the landlord has no legal right to the other accommodation, but that is only factor and not the end of the matter.'
These observations proceed on a misunderstanding of the ratio of the decision of this Court in Phiroze Bamanji Desai case. The High Court was in error in laying down that the test is availability of alternative accommodation and not the legal right to such occupation in adjudging the bona fides of the claim of the landlord under Section 14(1)(e) of the Act. The decision of this Court in Phiroze Bamanji Desai case does not lay down any such proposition. On the contrary, this Court reversed the judgment of the Bombay High Court which proceeded upon that basis. In that case, the first floor was in occupation of the mother of the appellant as a tenant and the question was as to the availability of the Truth Bungalow which was given on leave and license to one Dr.Bharucha. The High Court came to the conclusion that the requirement of the appellant for the ground floor of the demised premises was not reasonable and bona fide since the appellant was in judicial possession of the Truth Bungalow. This Court in allowing the appeal observed:(SCC p.668, para 8)
'Now, it is true that when premises are given on leave and licence, the licensor continues, from a juridical point of view, to be in possession of the premises and the licensee is merely given occupation and thereforee, strictly speaking the High Court was right in observing that the Truth Bungalow, which was given on leave and license to Dr.Bharucha, was in the possession of the appellant.'
The Court then pointed out:(SCC p.668, para 8)
'But for the purpose of determining whether the requirement of the appellant for the ground floor premises was reasonable and bona fide, what is necessary to be considered is not whether the appellant was juridically in possession of the Truth Bungalow, but whether the Truth Bungalow was available to the appellant for occupation so that he could not be said to need the ground floor premises. If the Truth Bungalow was in occupation of Dr.Bharucha on leave and licence, it was obviously not available to the appellant for occupation and it could not be taken into account for negativing the need of the appellant for the ground floor premises.'
We accordingly overrule the decision of the Delhi High Court in Sat Pal v. Nand Kishore as not laying down good law.
4. In the premises, the judgment of the High Court disallowing the appellant's claim cannot be supported. In considering the availability of alternative accommodation, the Court has to consider not merely whether such accommodation is available but also whether the landlord has a legal right to such accommodation. The appellant had established her bona fide personal requirement of the demised premises under Section 14(1)(e) of the Act and her claim could not be disallowed merely on the ground that she was staying as a guest with a family friend by force of circumstances.'
16. There is no finding in the present case that the petitioner merely made out a case for additional accommodation with some collateral purpose or was motivated with extraneous considerations nor the requirement could be held as fanciful. Jaspal Singh, J. in the judgment reported as Jhalani Tool (India) Pvt. Ltd. v. B.K. Soni 1994 (1) R C R 472 held as follows in paragraph 19:
'19. Anyhow since the sons have been living with the landlord father since long and have joint residence and joint mess with him, their requirement would be taken to be the requirement of the landlord-father himself because in such a case the landlord and his family members living with him have to be treated as one unit. In this respect reference may be made to Lala Ram v. Kalawati, 1974 RCJ 405: S. Kumar v. Om Parkash Sharma, 1980 (1) RCR 401 1980 (1) RCJ 36; S.K. Arora v. S.L. Sarna, 1982(1) RCJ 315; Lala Shambu Nath v. Pandit Ram Sarup Sharma 1970 RCR 1110: 1971 RCJ 124; T.C. Rekhi v. Usha Gujral 1970 RCR 292. It may be noticed that in I.L. Mehta v. Hiralal, 1971 RCJ 272 it was observed that the requirement of a son even though earning and married but living with the landlord-father has to be taken into consideration while determining the requirement of the landlord. Similarly in Sain Dass v. Madan Lal, 1971 RCR 887 1972 RCJ 8 Delhi this court held that the word 'himself' has to be interpreted to mean 'himself' as living along with his family members with whom he is normally accustomed to live. I hope all this effectively answers Mr.Marwaha's contention.'
17. The learned counsel for the respondent has, on the other hand, vehemently argued that the wife of the petitioner as well as his mother-in-law have since expired and the present state of the family will not make the requirement for additional accommodation as bona fide and that the Bungalow at Sarvodya Enclave is lying vacant and is available to the petitioner and he can very well occupy the same. Lastly, it is contended that no interference is called for in exercise of revisional powers of this Court and the present petition is liable to be dismissed.
18. Reliance is placed on the judgments reported as P.S. Devgun v. S.P. Walia 1975 R C J 564; M.M. Quasim Vs . Manohar Lal Sharma and others : [1981]3SCR367 ; Helper Girdharbhai Vs . Saiyed Mohmad Mirasaheb Kadri and others : [1987]3SCR289 ; Amarjit Singh Vs . Smt. Khatoon Quamarain : [1987]1SCR275 ; 1988 Sup Cou 852 and Kanta Udharam Jagasia(Miss) Vs . C.K.S. Rao : AIR1998SC569 .
19. The provision of rent legislation was explained in paragraph 18 in the judgment M.M.Quasim (supra) which was strongly relied upon by learned counsel for the respondent. Para 18 of the judgment reads as follows:
'18. Before turning to the next topic, a word about the judicial approach to the question of personal requirement of the landlord under the Rent Act would not be out of place. The learned Judge of the first appellate court while upholding the claim of personal requirement of respondent 1 has observed as under:
'It is for the plaintiffs to decide whatever they think fit and proper. It is not for the defendant to suggest as to what they should do. The defendant has led evidence to show that the plaintiffs have got some more houses at Giridih.... The defendant appellant has also filed certified copy of judgment of one suit No.47/73 which is Ext. D only to show that plaintiffs have got a decree for eviction with respect to the other house at Giridih. I have already pointed out earlier that it is for the plaintiffs to decide which of the houses is suitable for them. It is not for the defendant to suggest that the house which will fall vacant in the near future is most suitable house for the plaintiffs'.
This approach betrays a woeful lack of consciousness relatable to circumstances leading to enactment of Rent Acts in almost all States in the country. The time honoured notion that the right of re-entry is unfettered and that the owner landlord is the sole Judge of his requirement has been made to yield to the needs of the society which had to enact the Rent Acts specifically devised to curb and fetter the unrestricted right of re-entry and to provide that only on proving some enabling grounds set out in the Rent Act the landlord can re-enter. One such ground is of personal requirement of landlord. When examining a case of personal requirement, if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. To reject this aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison d'etre of the Rent Act. Undoubtedly, if it is shown by the tenant that the landlord has some other vacant premises in his possession, that by itself may not be sufficient to negative the landlord's claim but in such a situation the Court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the action is commenced in the Court. It would, however, be a bald statement unsupported by the Rent Act to say that the landlord has an unfettered right to choose whatever premises he wants and that too irrespective of the fact that he has some vacant premises in possession which he would not occupy and try to seek to remove the tenant. This approach would put a premium on the landlord's greed to throw out tenants paying lower rent in the name of personal occupation and rent out the premises in his possession at the market rate. To curb this very tendency the Rent Act was enacted and, thereforee, it becomes the duty of the Court administering the Rent Act to bear in mind the object and intendment of the legislature in enacting the same. The Court must understand and appreciate the relationship between legal rules and one of necessities of life - shelter- and the way in which one part of the society exacts tribute from another for permission to inhabit a portion of the globe. In 'The Sociology of Law', edited by Pat Carlen, the author examines the rent and rent legislation in England and Wales and observes as under:
'The prevailing paradigms of neo-classical economics and empiricist political theory have determined the conceptual insularity of law and legal institutions, with the result that they and other social events appear as random existences independent of their historical formation. The force of any theory of law must of course lie in its explanatory power, and this in turn depends on the wider image of social relations which produces it.'
20. These observations do not apply to the facts of the present case and are merely obiter in nature.
21. The Supreme Court in Helper Girdharbhai (supra) referred to the scope of revisional powers of the High Court. Paragraph 16 of the judgment may be reproduced as under:
'16. We must take note of a decision in the case of Kasturbhai Ramchand Panchal and Brothers Vs . Firm of Mohanlal Nathubhai, : AIR1969Guj110 upon which the High Court had placed great reliance in the judgment under appeal. There the learned Judge relying on S.29(2), of the said Act held that the revisional power with which the High Court was vested under S.29(2) was not merely in the nature of jurisdictional control. It extended to corrections of all errors which would make the decision contrary to law. The legislature, the learned Judge felt, further empowered High Court in its revisional jurisdiction to pass such order with respect thereto as it thought fit. The power according to the learned Judge was of the widest amplitude to pass such orders as the Court thought fit in order to do complete justice. He dealt with the human problem under S.13(2) of Bombay Rent Act considering the relative hardships of the landlord and the tenant and to arrive at a just solution he was of the opinion that the court should have such wide field. The jurisdiction of the High Court is to correct all errors of law going to the root of the decision which would,in such cases, include even perverse findings of fact, perverse in the sense that no reasonable person, acting judicially and properly instructed in the relevant law could arrive at such a finding on the evidence on the record. In this view in our opinion the ambit of the power was expressed in rather wide amplitude. As we read the power, the High Court must ensure that the principles of law have been correctly borne in mind. Secondly, the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind. It must be such a decision which no reasonable man could have arrived at. Lastly, such a decision does not lead to a miscarriage of justice. We must, however, guard ourselves against permitting in the guise of revision substitution of one view where two views are possible and the Court of Small Causes has taken a particular view. If a possible view has been taken, the High Court would be exceeding its jurisdiction to substitute its own view with that of the courts below because it considers it to be a better view. The fact that the High Court would have taken a different view is wholly irrelevant. Judged by that standard, we are of the opinion that the High Court in this case had exceeded its jurisdiction.'
22. The power of the High Court in interfering in the findings of fact was considered in the judgment reported as Kanta Udharam Jagasia (Miss) (supra). Paragraph 22 may be referred to as below:
'22. The High Court also was not justified in interfering with the considered finding of the competent authority regarding the bona fide requirement of the landlady on the basis of evidence given by her aunt. The High Court, forgetting that it had a limited revisional jurisdiction, analysed the evidence and substituted its findings in place of the findings of the competent authority. On a perusal of the evidence, we find that the findings arrived at by the competent authority on the basis of oral evidence cannot be said to be perverse or even unreasonable requiring the High Court to reverse the same. It is well settled that though another view is possible on re-appreciation of the evidence, the revisional court may not interfere with the findings of the lower courts on that ground. We do not think it is necessary to reiterate that a co-owner, in the absence of any objection from other co-owners, can maintain a petition for eviction against a tenant as it was not seriously disputed before us. We find that that question does not strictly arise for consideration on the facts of this case as the legal heirs had settled among themselves regarding allotment of distinct and different shares to each one of them, which was accepted by the Housing Society. We have also seen that the tenant was paying rents to the appellant. The competent authority on this aspect has observed as follows:
'Apart from the above evidence, the appellant's evidence shows that after 31-1-1988 the opponent's son Chetan used to pay rent by cheque on behalf of his father drawn in favor of the applicant. The applicant has issued rent receipts to him and she has produced the counterfoils of rent receipts from February 1988 onwards (Ex.A-3). The reverse of the counterfoils bear the signature of the opponent's son Chetan. The opponent has produced the rent receipts (Ex.R-1). This evidence establishes the fact that the opponent has become the contractual tenant of the applicant after 31-1-1988'.
23. The facts of the present case have already been analysed in the earlier part of the judgment. The petitioner is a Doctor and so is his son Dr.Munish Gupta who is residing with him along with his family at the tenanted premises. They are both in private practice and obviously will require some portion in the premises to use as clinic and to see patients in emergent situations as no doctor is expected to turn away patient if some medical help is needed. The professional people often attend to their clients or patients from the premises where they reside and it cannot be said that requirement for such purpose is fake or fanciful. The finding to the contrary is clearly misconceived and against accepted norms in such cases. The alternative accommodation which is alleged to be available to the petitioner, admittedly, is not owned by him and his son merely possessed some share in that property along with his brothers. The petitioner is aged about 78 years and it is his requirement to keep one of his sons with his family in the premises where he is residing and it cannot be argued that he must move to another accommodation which jointly belongs to his sons. The plea that the requirement of the petitioner is to have assistance from his son and he must move to a house at Sarvodya Enclave is of no consequence in the facts and circumstances of the present case.
24. It is always open for this Court to re-consider the evidence when the trial court has made erroneous and patent errors in assessment of the same. The findings in this regard are clearly perverse and against the weight of evidence causing manifest injustice in the facts as stated above. The petitioner, admittedly, is possessed of a very small accommodation comprising of two bed rooms, drawing-cum-dining, kitchen, two bath rooms on the ground floor of the premises. This is so stated even by the Additional Rent Controller. This Court is entitled to interfere in revisional powers when the question of bona fide requirement has been considered on non-existent grounds based on erroneous interpretation of law and when material considerations have been discarded. The evidence has to be examined objectively and the court has to adopt a practical and accepted criteria to determine the bona fide need of the landlord. The findings of fact are not ordinarily interfered with but at the same time the same can be corrected when there is total non-application of mind and material irregularity has crept in the order of the Additional Rent Controller.
25. For the aforesaid reasons, the present petition is allowed. The judgment dated August 24, 1995 passed by the Additional Rent Controller is set aside and an order of eviction is passed in respect of the impugned premises. The respondent shall, however, not be evicted before the expiry of a period of six months from today. There will be no order as to costs.