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CASE NO.: Appeal (civil) 2143  of  2000

PETITIONER: M.L.  PRABHAKAR

       Vs.

RESPONDENT: RAJIV SINGALVVV

DATE OF JUDGMENT:       04/01/2001

BENCH: S.N.Variava, S.S.M.Quadri

JUDGMENT:

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     J U D G M E N T S.  N.  VARIAVA, J.

     This  Appeal is against an Order dated 12th  November, 1999.   Briefly stated the facts are as follows:  The father of  the  Respondent  was  the landlord of  the  premises  in question.   He  filed  an eviction  petition  under  Section 14(1)(e)  of the Delhi Rent Control Act.  This petition  was on  the ground of bonafide requirement.  He claimed that  he had  two bed rooms and a verandah on the ground floor of the premises  and his family consisted of himself, his wife, his son  (the  present  Respondent),  two  daughters  and  their families.   He  claimed  that  they did not  own  any  other residential  accommodation in Delhi.  He, therefore,  sought eviction  of  the  Appellant  from the first  floor  of  the premises  bearing  No.  16/58 Gali No.1, Joshi Road,  Delhi. The  defence of the Appellant was (a) that the Landlord  had other  suitable residential accommodation at No.  16/57 Gali No.   1,  Joshi Road, Delhi and at Basant Road, Pahar  Ganj. (b)  that the daughters did not stay with the father as they were  married  and they stayed with their husbands  and  (c) that the Landlord already had 4 bed rooms in his possession. The  Rent  Controller by his judgment dated  24th  February, 1993  dismissed the eviction petition.  The Rent  Controller held   that  there  was   suitable   alternate   residential accommodation  both at 16/57 Gali No.  1, Joshi Road,  Delhi as  well  as at Basant Road.  The Rent Controller held  that these  had  been suppressed.  The Rent Controller also  held that daughters were not residing with the original landlord. It  was also held that the landlord had sufficient number of room  in  his  possession to meet  his  requirement.   Being aggrieved by this decision, the landlord filed a Revision in the High Court.  The High Court, by the impugned order dated 12th  November, 1999, allowed the Revision.  The High  Court set  aside  the order of the Rent Controller and  passed  an order  of  eviction against the Appellant.  The  High  Court held  that  the  requirement of the landlord  was  bonafide. During  the pendency of this Revision before the High Court, the  original landlord died.  The present Respondent,  being his  son,  was  brought on record.  It has been  urged  that there  was suppression on the part of the landlord  inasmuch

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as  he did not disclose the premises which were available at 16/57  Gali No.  1, Joshi Road as well as the premises which are available at Basant Road, Pahar Ganj.  On the other hand on  behalf of the Respondent Dr.  Singhvi has submitted that the only requirement is to disclose such accommodation as is suitable  for  residence  of  the  landlord.   Dr.   Singhvi submitted   that   if   there  is   no   other   residential accommodation  which  is suitable then there is no  duty  to disclose.   Dr.   Singhvi relied upon the authority  in  the case  of Ram Narain Arora vs.  Asha Rani and Ors.   reported in  1999 (1) S.C.C.  141, wherein it has been held that  the question  whether  the  landlord has  any  other  reasonably suitable  residential  accommodation is a question which  is inter-mixed   with   the     question   regarding   bonafide requirement.   It is held that whether the landlord has  any other  reasonably  suitable residential accommodation  is  a defence  for the tenant.  It is held that whether the  other accommodation  is more suitable than the suit premises would not  solely depend upon pleadings and non- disclosure by the landlord.   It  was  held that the landlord  having  another accommodation would not be fatal to the eviction proceedings if both the parties understood the case and placed materials before  the court and case of neither party was  prejudiced. In  this  case  even though the landlord has  not  mentioned about the other two premises, the material in respect of the other  two premises was placed before the Rent Controller as well  as  before the High Court, thus no prejudice has  been caused.  The parties have squarely dealt with this question. We  have seen the material on record and read the  evidence. In  our view, it can not at all be said that the rooms which are  available  on the plot bearing No.  16/57 Gali No.   1, Joshi    Road   are     reasonably   suitable    residential accommodation.   These are rooms which are being used by the servants of the Respondents.  It can hardly be expected that the  landlord  or  his  family shift into  rooms  meant  for servants.   Mere  fact that at an earlier date a tenant  was residing  in  these  rooms  does not in any  way  make  them suitable  for  occupation of the landlord.  In his  evidence the  landlord has categorically stated that the premises  at Basant  Road belong to his wife.  The landlord deposed  that those  premises are being used for commercial purposes only. The  landlord  has also produced a licence showing that  the ground  floor of those premises has been licenced to be used as  Bonded Ware House of the storage of the duty free  shop. However, reliance has been placed upon the deposition of the landlord  in  cross-examination wherein it is admitted  that prior to 1965 the landlord was staying on the first floor of those premises and that on the first floor there are two bed rooms,  drawing,  dining and latrine.  It does  appear  from this  admission, in the cross-examination, that on the first floor  there  are two bed rooms which are  still  available. However,  the  question would still be whether these can  be considered   to   be     reasonably   suitable   residential accommodation.   This  Court has in the case of  Shiv  Sarup Gupta  vs.  Dr.  Mahesh Chand Guptas.  reported in 1999  (6) S.C.C.  222, held in paras 14 and 22 as follows :  "14.  The availability  of  an  alternative   accommodation  with  the landlord  i.e.   an  accommodation  other than  the  one  in occupation  of  the  tenant  wherefrom he is  sought  to  be evicted  has a dual relevancy.  Firstly, the availability of another  accommodation  suitable  and   convenient  in   all respects  as  the  suit accommodation, may have  an  adverse bearing  on the finding as to the bona fides of the landlord if  he unreasonably refuses to occupy the available premises to   satisfy  his  alleged   need.   Availability  of   such

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circumstance  would  enable the court drawing  an  inference that  the  need of the landlord was not a felt need  or  the state  of mind of the landlord was not honest, sincere,  and natural.   Secondly, another principal ingredient of  clause (e)  of  sub-section  (1)  of Section 14,  which  speaks  of non-availability   of   any    other   reasonably   suitable residential  accommodation  to  the landlord, would  not  be satisfied.   Wherever  another residential accommodation  is shown  to  exist as available then the court has to ask  the landlord  why  he  is  not occupying  such  other  available accommodation  to  satisfy  his   need.   The  landlord  may convince   the  court  that   the  alternative   residential accommodation  though available is still of non  consequence as  the same is not reasonably suitable to satisfy the  felt need  which  the  landlord has  succeeded  in  demonstrating objectively  to exist.  Needless to say that an  alternative accommodation, to entail denial of the claim of the landlord must  be reasonably suitable.  Obviously in comparison  with the  suit  accommodation wherefrom the landlord  is  seeking eviction.   Convenience  and safety of the landlord and  his family  members wold be relevant factors.  While considering the  totality  of the circumstances, the court may  keep  in view  the  profession  or vocation of the landlord  and  his family  members, their style of living, their habits and the background wherefrom they come.

     xxx xxx xxx xxx xxx xxx

     22.   Reverting back to the case at hand, the landlord has  been  living on the ground floor of the Defence  Colony house.   It was conceded at the Bar that as on the day,  the family  of the landlord consists of the landlord himself  (a practising  doctor),  his son (again a  practising  doctor), daughter-in-law  and  two  grandchildren who  are  gradually growing  in  their age.  Looking at the size of the  family, availability  of three bedrooms in the premises in which the landlord  may  live, is a requirement which is  natural  and consistent  with  the  sense  of decency - not  to  talk  of comfort and convenience.  There is nothing unreasonable in a family  with  two  practising  doctors  as  members  thereof needing  a room or two or a room with a verandah to be  used as a residential clinic divided into a consultation room and a  waiting  place  for  the patients.   A  drawing  room,  a kitchen, a living room and a garage are the bare necessities for  a comfortable living.  The landlord has been living  in the Defence Colony locality for more than 35 years The first floor  which  was let out to the tenant in the year 1978  as being  an  accommodation surplus with the landlord has  with the  lapse of time become a necessity for occupation by  the landlord and his family members.  More than ten years by now have  been lost in litigation.  The death of the wife of the landlord,  and  the death of the landlord’s mother-in-  law, are  events which have hardly any bearing on the case of the felt  need of the landlord.  The need as pleaded and  proved by  the landlord is undoubtedly natural, sincere and  honest and  hence a bona fide need.  There is no material available on  record  to  doubt  the genuineness  of  such  need.   It continues  to subsist in spite of the two deaths.  It is not the  case of appellant tenant that while seeking eviction of the  tenant the landlord is moved by any ulterior motive  or is  guided by some other thing in his mind.  It will be  mot unreasonable  to  suggest that the landlord may continue  to live  on  the ground floor of the Defence Colony  house  and some members of the family may move to the Sarvodaya Encalve house  if  the  whole  family  cannot  be  conveniently  and

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comfortably  accommodated as one unit in the Defence  Colony house.  It would be equally unreasonable to suggest that the entire  family  must  shift to the Sarvodaya  Enclave  house which  is  admittedly situated at a distance of about  7-  8 kilometres from Defence Colony.  The landlord and his family are  used  to  living  in Defence  Colony  where  they  have developed  friends and acquaintances, also familiarity  with the neighbourhood and the environment.  The patients usually visiting  or  likely  to visit the residential  clinic  know where  their doctor would be available.  Shri Arun  Jaitley, learned  Senior Counsel for the respondent has very  rightly submitted  that it could not have been the intendment of the rent  control  law to compel the landlord in such facts  and circumstances  to shift to a different house and locality so as  to permit the tenant to continue to live in the tenanted premises.   If the landlord wishes to live with comfort in a house  of his own, the law does not command or compel him to squeeze  himself tightly into lesser premises protecting the tenant’s  occupancy.  In addition, we find that on the  date of  the initiation of the proceedings, the Sarvodaya Enclave property was belonging to the wife of the landlord or to one of  his sons resident abroad and was in actual occupation of the tenant.  On the death of the wife of the landlord if any one of the two wills (one which was in existence at the time of  the  initiation  of the proceedings or  the  one,  which appears to have been subsequently executed by the landlord’s wife and filed before the High Court) was to be given effect to  then the ownership in the property has passed on to  one son  or  jointly to four sons of the landlord.  If the  will itself  is  excluded from consideration as not  proved  then also the ownership in the property has passed on to the four sons  jointly.   The  Sarvodaya Enclave  property  does  not belong  to  the  landlord  and  is  not  available  for  his occupation as an owner.  To these facts the applicability of law  laid  down in Prativa Devi Case is squarely  attracted. In  our  opinion the availability of the  Sarvodaya  Enclave property  is not of any relevance or germane to  determining the need and the bona fides of the need of the landlord.  We are  not  therefore  inclined to attach any  weight  to  the application  for  additional evidence filed by the  landlord before  the  High  Court though we agree  with  the  learned counsel for the appellant tenant that the High Court was not justified  in taking into consideration the contents of  the will  without  formally admitting the same in  evidence  and affording  the  parties opportunity of adducing evidence  in proof and disproof thereof."

     It  is thus to be seen that the suitability has to  be seen  from  the convenience of the landlord and  his  family members   and   on  the  basis  of  the  totality   of   the circumstances including their profession, vocation, style of living,  habits  and  background.   On these  tests  let  us consider  the facts of this case.  The trial court has  come to  the  conclusion that the daughters do not stay with  the landlord.   However, even the trial court accepted that  the wife, the son (who is the present respondent) and his family members  stayed with the landlord.  The daughters and  their family  members  occasionally visited and stayed.  The  High Court  has also proceeded on the footing that the  daughters only  occasionally visit.  The High Court has held that  one additional  room may be required for an occasional visit  by the other relatives.  The High Court has thus found that the requirement  of  the landlord would be five rooms.   In  our view, it cannot be said that there is any infirmity in these findings.   It  was  urged that in  the  premises  presently

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available  there  are  already  available  five  rooms.   In support  of  this, reliance is placed upon the  sketch  plan which  had been produced by the Appellant during the  cross- examination  of the daughter of the landlord.  In the sketch plan  it  has been shown as if there are four bed rooms  and one  drawing and dining room.  This sketch plan is identical to  a  sketch  plan  produced by  the  landlord.   The  only difference  is  that in this sketch plan a passage has  been shown  as  drawing and dining room.  In our view,  the  High Court was right in not relying on the sketch plan, which had been  merely put to the daughter in cross-examination.   The daughter  had  denied  the correctness of  this  Plan.   The correctness  was not proved by anybody else.  Even otherwise the  evidence of one of the witnesses of the Appellant shows that  the  sketch plan produced by the landlord is  correct. The  Appellant’s witness admits that the drawing and  dining room  are  as  shown  in the sketch  plan  produced  by  the landlord.   Lastly,  even  if premises at  Basant  Road  are available  it  can  hardly  be suggested that  some  of  the members  of  the family of the landlord should stay  at  the suit  premises and the others stay at Basant Road.  Neither, by  itself, is large enough to accommodate fully the need of the  landlord.   Thus the premises at Basant Road cannot  be said  to be reasonably suitable alternate accommodation.  In view  of the above, we find no infirmity in the judgment  of the  High  Court.  It must be mentioned that for  the  first time  in this SLP, a point has been taken that the  landlord has  constructed  a  building at Greater  Kailash  and  that bungalow  is  also  available  to him.  We  were  shown  the counter  filed by the respondent in the S.L.P.  wherein  the reply  to  this  averment  is  as  follows  :   "(xix)   The Petitioner/tenant has also falsely alleged that the landlord has  property  at Greater Kailash, New Delhi.  In fact,  the landlord’s wife owned a plot of land at Greater Kailash, New Delhi.  The said property is not reasonably suitable for the landlord and his family for the reason inter alia that it is 17  Kms.   away from the present residence.  The family  has been staying at the said residence for the last nearly three decades.   It is accustomed to live at the present locality. It has friends, acquaintances and relatives living about the said  premises.   Over  a  period  of  time  they  have  got accustomed  to live at the said premises.  The place of work of  the Respondent No.1 at Basant Road, is within 5 Kms.  of the  present residence, as opposed to 12 Kms.  from  Greater Kailash, New Delhi."

     We  have not allowed the Appellant to urge this  point in this Appeal as these are disputed questions of fact which should  have been placed before the Rent Controller so  that proper  evidence could have been taken on this.  However, it is  clear that the landlord is getting the Appellant evicted on  the ground of their bonafide personal requirement.   If, therefore,  in  the near future it is found that this was  a false  ground  and that after getting the Appellant  evicted the  premises  are  not being used for personal use  of  the landlord and his family as claimed, the Appellant will be at liberty to adopt appropriate proceedings for restitution and to  get  back  the  premises from the  Respondent.   At  the request  of  the  Appellant we grant six months’  time  i.e. till  end of June, 2001 to vacate the premises provided  the Appellant  files in this Court the usual undertaking  within two weeks from today.

     The  Appeal stands dismissed.  There will be no  order

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as to costs.