Rajinder Singh Vs. A.P. Prabhakaran and ors. - Court Judgment

Excerpt:
a) the case debated on whether the landlord's requirement for an alternative accommodation was bona fide - it was found that on account of partition in the family of landlord, the other accommodation came within the share of the other members of the family - thereforee, the requirement of an alternate accommodation was bona fide under section 14(1)(e) of the delhi rent control act, 1958b) the case debated on whether the tenant can be held guilty for concealment of material facts under section 14 (1)(e) of the delhi rent control act, 1958 - in the present case, the tenant was allotted government accommodation during the pendency of application that was filed for eviction and the tenant had admitting the said fact during his testimony, which was his first available opportunity - thereforee, it was held that the tenant could not be held guilty for the suppression of the factsc) in the present case, the petitioner was in need of three rooms as per his requirement but the government accommodation had only two rooms further, the job of the petitioner was transferable thereforee, the requirement of the petitioner was genuine but the law did not require the landlord to sacrifice his own comfort and need, merely on the ground that the possession of the premises was with the tenant it was ruled that the rent controller would have to ascertain the solution of the problem from the point of a reasonable man - - but when the respondent failed to do so he filed the eviction petition under section 14(1)(e) of delhi rent control act (in short the act) on 30th may, 1990. family of the appellant consist of himself, his wife, two grown-up daughters and a son. the desire of the petitioner to occupy his house in these circumstances appears to be in good faith and his genuineness is of a reasonable man. 1 which he miserably failed to discharge. 1 failed to prove his defense and or to explain as to why he was accepting rent receipt in his name, to my mind, it was respondent no. 1 having failed to discharge the burden, thereforee, adverse inference ought to have been drawn against him. from the unrebutted testimony of the petitioner supported by documentary evidence like rent receipts, it can falsely be concluded that there existed landlord and tenant relationship between the petitioner and respondent no. 1 failed to prove the defense set up by him in his written statement. since he failed to prove his defense the learned arc fell in error in rejecting the version of the petitioner. 1 would have been the best person to explain that he never resided in this house in his capacity as tenant of rear portion or that he was living as relation of respondent no.usha mehra, j. (1) the petitioner happens to be an owner of first floor of the house bearing no. d-32, hauz khas, new delhi. respondent no. 1 mr. a.p. prabhakaran was inducted as tenant by respondent no. 3 smt. kirpa devi, mother of the appellant. since the petitioner was working in c.r.p.f. which happens to be a transferable job, he, thereforee, decided to settle his family at one place i.e. in delhi. tenanted premises consist of a drawing-cum-dining room, one bed room with attached bath room and a kitchen on the rear portion of the first floor of this house. petitioner wanted the respondent to vacate this premises as he needed the same for himself and his family. but when the respondent failed to do so he filed the eviction petition under section 14(1)(e) of delhi rent control act (in short the act) on 30th may, 1990. family of the appellant consist of himself, his wife, two grown-up daughters and a son. the respondent no. 1 happened to be a close relation of respondent no. 2 mr. p.k.s. nair. it had been the case of the petitioner that respondent no. 1 sub-let and assigned the possession of the front portion of the premises to respondent no. 2. that respondent no. 1 has not been in actual physical possession of the premises. the premises in question was let out for residential purposes. when the petition was filed on 30th may, 1990 petitioner was staying with his family in a temporary rent age accommodation in 58 bn. c.r.p.f., mehrauli, new delhi. he pleaded that because of frequent transfers he could not carry his children with him as that would hamper their education. his eldest daughter was studying in b.a. first year, second daughter in l2th class and son in 6th class in delhi. taking them away from delhi would mean loss of their studies. (2) this petition was contested by respondents 1 and 2. they filed their written statements. but after filing written statement respondent no. 1 did not appear. the learned arc vide order dated 29th july,1995 dismissed the petition of the petitioner holding that there did not exist any relationship of landlord tenant between the petitioner and the respondent no. 1 and that the premises was not required bona fide by him. (3) aggrieved by the impugned order, this petition has been filed challenging the said order, inter alia, on the ground that the learned arc wrongly presumed that type-iv government accommodation always consist of three living rooms, besides drawing room. these observations of the learned arc, mr. v.k. shali counsel for the petitioner contended are not borne out from the record. it appears the learned arc inferred his personal knowledge without disclosing the same to the petitioner and thus deprived reasonable opportunity to the petitioner to disprove the same. there was nothing on record to conclude that type-iv government accommodation allotted to the petitioner consisted of three living bed rooms and drawing-cum-dining room. in the absence of any material available on record the learned arc committed a patent error in presuming about the accommodation in possession of the petitioner. on the contrary learned arc ignored the certificate issued by the cpwd describing the accommodation with the petitioner. thus the judgment of the learned arc is based on surmises and conjectures. it is against law. the learned arc could not have based this finding on his personal knowledge without disclosing the- source as to where from he acquired that knowledge. contrary to the presumption of arc, the petitioner appearing as his own witness (aw-2) categorically stated that type-iv government accommodation allotted to him consisted of two bed rooms. on this there was no cross-examination nor any rebuttal. this part of his statement remained unchallenged on record. the arc committed error in ignoring this unchallenged statement of the petitioner. to support his statement that the government accommodation allotted to him consisted of only two bed rooms besides drawing-cum-dining, w.c., bath and kitchen, the petitioner placed on record the certificate in original issued by cpwd department giving detailed description of the accommodation allotted to the petitioner. bare reading of this certificate show that government accommodation with petitioner consist of only two bed rooms. thereforee, the presumption drawn by the learned arc was not only contrary to the certificate issued by the government authority but also against the unrebutted testimony of the petitioner. i am in agreement with the contention of mr. v.k. shali that the observation of the learned arc in this regard are not based on facts available on record. it appears his observation regarding type-iv government accommodation is not but surmises and conjectures. the same remained un-substantiated on the record. (4) as regards the observation of the learned arc that government accommodation at r.k. puram allotted to the petitioner was concealed from the court, this is also against the record. at the time petition was filed on 30th may, 1990 the government accommodation had not been allotted to the petitioner. however, when he stepped into the witness box in 1993, he immediately disclosed the allotment of the government accommodation at r.k. puram to him. this was initially allotted in his favor on 10th may, 1991 but then changed and fresh allotment was done on 10th july, 1991 pursuance to which he occupied the government house. thereforee, when he filed the petition on 30th may, 1990 he could not have disclosed about the government accommodation. he, however, at the first available opportunity when he appeared in the witness box in 1993 disclosed the factum of allotment of government accommodation. thereforee, it cannot be said that he concealed the allotment of government accommodation or did not come to the court with clean hands. on 30th may,1990 he could not have known, when the government accommodation would be allotted and in which colony? appearing as his own witness as aw.1, he testified that he was residing at r.k. puram in government accommodation consisting of two rooms which was allotted to him in july,1991. this shows at the first available opportunity he disclosed the factum of allotment of government accommodation. thereforee, to my mind, mr. v.k. shali rightly contended that the observations of the learned arc are erroneous and not based on the facts which had come on record. as already observed government accommodation in possession of the petitioner was allotted during the pendency of the petition. this subsequent event he wrought to the notice of the court at the first available opportunity. hence impugned order on this count cannot be sustained. (5) now turning to the question of bonafide requirement of the petitioner. he has two rooms in his possession in the government allotted quarter at r.k. puram. he has no other reasonable suitable accommodation with him. this government accommodation at r.k. puram cannot be called alternative suitable residential accommodation, particularly when he requires at least three to four bed rooms to accommodate his family. one room is required for himself and for his wife, one room each for his grown-up daughters and one for his son. whereas the government accommodation provides only two bed rooms, thereforee, his need appears to be genuine. there is fallacy in the reasoning of the learned arc when he observed that the government accommodation was suitable for the petitioner. it appears the learned arc ignored the need of the family members of the petitioner. the petitioner in his statement made it clear that he had two grown up daughters studying in higher classes in delhi. his son was studying in 6th class. out of the two daughters, one got married in february,1995. his unmarried son and daughter are now fully grown up. they require one room each for themselves and one room for the petitioner and his wife. besides some accommodation for his married daughter who visit and stays with him. hence the need of the petitioner cannot be called mala fide. since the job of the petitioner is transferable, he cannot be expected to take his children with him wherever he goes. they have to live at one place to complete their studies. leaving their classes in delhi and going with the petitioner to places would mean hampering their studies. the petitioner's desire to settle them at delhi so that they could complete their higher education cannot be called a whimsical desire put up with an ulterior motive or due to extraneous consideration. the petitioner requires minimum three living rooms to accommodate his family consisting of himself, his wife, daughter and a son. the accommodation available in government house is not sufficient because in that house he has only two bed rooms as is apparent from cpwd certificate. hence his need is nothing but genuine. this fact itself proves that the accommodation available to him i.e. government flat cannot be called suitable alternative accommodation. this i say for the reasons because in government flat he has only two bed rooms whereas his need is more. it is not in every case the question of accommodation in possession of the landlord being reasonably suitable has to be judged solely in the context of the physical sufficiency of the accommodation. the accommodation in possession of petitioner can also be called unsuitable because petitioner's job is transferable. the moment he is transferred from delhi he has to surrender government accommodation. then his family would be on the road. the desire of the petitioner to occupy his house in these circumstances appears to be in good faith and his genuineness is of a reasonable man. the law does not require the landlord to sacrifice his own comforts and requirements merely on the ground that the premises are with the tenant. the problem has to be approached from the point of view of a reasonable man and not that of a whimsical landlord. the facts which have come on record do not show that the desire of this landlord is whimsical. the learned arc did not appreciate these facts in its proper prospective. (6) similarly, the house at naraina has been wrongly held to be available to the petitioner. there is no spacious bunglow at naraina in the name of the petitioner. house bearing no. wz-203, naraina, new delhi the petitioner has no legal right. petitioner's father banwari lal appearing as aw.3 amply proved that that house at naraina though initially belonged to huf but after partition of the huf that house came to his and his other two sons share. they all are living in that house. there is not a single room available in the house at naraina to be made available to the petitioner and his family. it is settled principle of law that the landlord cannot be dictated to live in a house of his relation where he has no legal right particularly when those relations are not prepared to welcome the petitioner and his family. thus neither the government accommodation nor the house at naraina can be called reasonably suitable alternative accommodation available to the petitoner. (7) that prior to the partition in may,1984 house in question was an huf property. this has been established on record. however, after the partition the first floor of this house fell to the share of this petitioner. the respondent/ tenant attorney and accepted him as owner/landlord of this house. now it does not lie in his mouth to say that the petitioner was not the owner of the property or that there did not exist relationship of landlord and tenant. the rent receipts issued by the petitioner and as proved on record show respondent no. 1 to be tenant of rear portion of the premises in question. the respondent no. 1 is the brother-in-law of respondent no. 2. rent was paid by the respondent. receipts were issued in his name though counter foils were signed by respondent no. 2. that was an internal arrangement of these two persons being related to each other. the fact remains that petitioner was receiving separate rent and was issuing two separate rent receipts show two tenancies on this floor. subsequently respondent no.1 shifted to janakpuri. he acquired an alternative accommodation. that is how respondent no. 2 came in possession of both the portions of the premises in question which according to petitioner was done without his consent. (8) it had been the case of the petitioner that rent used to be paid by the respondent no. 1, at times through his sister and at times through respondent no. 2 because respondent no. 1 being bachelor was mostly out of station due to his work. rent was sent by him through the persons available in delhi. since, rent was paid by him hence he was the tenant of rear portion. relying on the fact that rent was paid by respondent no. 1 through respondent no. 2 mr. k.p. manon, counsel for the respondent contended that the real tenant was respondent no. 2. to support his contention he relied on the decision of punjab & haryana high court in the case of pehlad rai v. rajkumar fain, 1992 (2) rcr 447. in this case it was held that when rent is paid by the sub-tenant and the rent receipts are issued on behalf of the tenant to sub-tenant then such a sub-tenant is the real tenant in the premises. mr. manon, thereforee, contended that though rent receipts were issued in the name of respondent no. 1 but as the rent was paid by respondent no. 2 and his signature appears on the counter foil hence it is respondent no. 2 who has to be called the real tenant. refuting these arguments, mr. shali contended that sub-tenant does not become tenant automatically simply because he delivered the rent on behalf of the real tenant. moreover, respondent no. 1 did not step into the witness box to state that he was not the tenant or that respondent no. 2 was paying rent on his behalf. in view of the fact that two rent receipts were issued showing two separate tenancies one in the name of respondent no. 1 and the other in the name of respondent no. 2, it cannot be said that respondent no. 1 was not tenant or there did not exist any relationship of landlord and tenant. in this view of the matter it was not right for the learned arc to draw adverse inference because mr. r.k. gupta, who used to collect rent on behalf of the petitioner had not been produced. in fact the burden to show that respondent no.1 was not tenant was on the respondent no. 1 which he miserably failed to discharge. he did not step into the witness box to rebut the averments made against him. he never stated that the rent receipt in his name was wrongly issued. since respondent no.1 failed to prove his defense and or to explain as to why he was accepting rent receipt in his name, to my mind, it was respondent no.1 having failed to discharge the burden, thereforee, adverse inference ought to have been drawn against him. from the unrebutted testimony of the petitioner supported by documentary evidence like rent receipts, it can falsely be concluded that there existed landlord and tenant relationship between the petitioner and respondent no. 1 with regard to rear portion of this premises. the mere fact that there is only one entrance to the first floor has no relevance nor from this fact it can be inferred that there did not exist two tenancies. this argument has no force. respondents had been accepting two tenancies, one of front portion and the second of rear portion. that is why they were paying two separate rents and obtaining two separate rent receipts. they are estopped from denying this position now. (9) the trial court ignored the partition deed which was communicated to the respondent no. 1 by the petitioner vide letter dated 2nd may, 1984 exhibit aw.2/ 2. after receipt of the said letter, respondent no. 1 attorney to the petitioner and started paying rent to him. postal receipt vide which that letter was posted has been proved on record are exhibits aw. 2/3 and aw.3/4. if the respondent no.1 had not been the tenant of rear portion, he ought to have objected to this position by sending reply to the registered letter exhibit aw.2. but he did nothing of this sort. this factor also lend support to the contention of the petitioner that there existed relationship of landlord and tenant between petitioner and respondent no. 1. respondent no. 1 failed to prove the defense set up by him in his written statement. since he failed to prove his defense the learned arc fell in error in rejecting the version of the petitioner. even respondent no. 1 's taking accommodation at janakpuri never stood proved. in fact it had been his case that so long as he remained unmarried he lived in this house. this proves the case of the petitioner that respondent no.1 was inducted as tenant of the rear portion and that he shifted after getting married. respondent no. 2 admitted issuance of two rent receipts, one in his name and the other in the name of respondent no. 1. mr. a.p. prabhakaran, respondent no.1 would have been the best person to explain that he never resided in this house in his capacity as tenant of rear portion or that he was living as relation of respondent no. 2. in case prabhakaran was sharing the accommodation as relative then why respondent no. 2 accepted two rent receipts of the same premises. no tenant would buy the storey of a landlord that for the tenanted premises two separate rent receipts have to be issued. this could only be done if in fact there were two tenants. moreover, respondents never raised any such objection at the first available opportunity. (10) in view of the circumstances explained above, i find that on the basis of the facts available on record the case of the petitioner that respondent no.1 was his tenant with regard to the rear portion of the premises stood proved and also his need to be bonafide. (11) for the reasons stated above, the impugned order is set aside. the order of eviction under section 14(l)(e) is accordingly passed thereby giving statutory period of six months to vacate the premises.