Shiv Sarup
Gupta V. Dr. Mahesh Chand Gupta [1999] INSC 233 (30 July 1999)
V.N. Khare,
R.C. Lahoti. R.C. Lahoti, J.
The
appellant, a tenant in a residential accommodation has sought for special leave
to appeal feeling aggrieved by an order of the High Court of Delhi which has in
exercise of jurisdiction conferred by Section 25-B (8) of Delhi Rent Control
Act, 1958 allowed a civil revision and directed the appellant tc be ejected
from the suit accommodation reversing an order of Additional Rent Controller, Delhi
dismissing the landlord's application for recovery of possession of the suit
premises on the ground specified in clause (e) of the proviso to sub-section
(1) of Section 14 of Delhi Rent Control Act, 1958 (hereinafter the Act, for
short).
Leave
granted.
The
suit premises are situated at D-219, Defence Colony, New Delhi. The building has two floors and a Barsati.
The accommodation in each of the two floors consists of two bathrooms, two
bedrooms, a study room, a glazed verandah, a drawing-cum-dining room and a
kitchen.
There
is a garage on the ground floor and a servant room on the Barsati floor. The
landlord is occupying the ground floor. In July, 1978 the first floor and the Barsati
were let out by the landlord to the tenant -appellant for residential purpose.
There was some controversy whether one room of the suit premises had formed
part of the tenancy or was illegally encroached upon and taken possession of by
the tenant. However, that controversy is over and the parties before us have
proceeded on assumption that the.. premises in occupation of the tenant are all
included in the tenancy.
The
landlord-respondent is a practising doctor presently about 78 years of age. In
January, 1988 when the proceedings for eviction were initiated, the family of
the landlord consisted of himself, his wife, a sqn Munish (also a practising
doctor), daughter-in-law and a grand son. The landlord has three other sons,
namely, Dr. Sunil Gupta, Dr. Anil Gupta and Shri Deepak Gupta. Dr. Anil Gupta
and one more - two sons are non-resident Indians settled abroad.
The
third one has his own business and is residing separately from the father. The
need pleaded in the application for eviction was that the accommodation on the
ground floor in possession of the landlord was not sufficient to meet his and
his family's residential requirement. The landlord had a mother-in-law,
suffering from various ailments and was practically a dependent on the
son-in-law, a doctor by profession. The two doctors in the family needed some
accommodation as a part of their residential unit for attending to the patients
who visited them either in emergency or with previous appointment at timings
other than the fixed hours of the clinic which was being run at 2544, Sir Syed
Ahmed Road, Darya Ganj, New Delhi in a part of a house belonging to Joint Hindu
Family of the landlord which had many other members as well.
Undisputedly,
the joint family house is a commercial property and the portions other than the
one occupied by the landlord for clinic are in possession of the tenants,
Admittedly, there is a house property situated at C-217, Sarvodya Enclave, New
Delhi. The house there stands on a plot belonging to the wife of the landlord
and had come up some time in the year 1986. Eversince the date of '
construction and also at the time of initiation of the present proceedings it
was in occupation of a tenant and hence not available to the landlord or his
wife for their residence. Before the Rent Controller, the plea taken and sought
to be substantiated by some evidence by the landlord was that the landlord's
wife had executed a will whereby the Sarvodya Enclave property was proposed to
be bequeathed to Dr. Anil Gupta, the NRI son and it is he who had invested his
own funds in constructing the property.
During
the pendency of the proceedings before the Rent Controller, the mother-in-law
of the landlord expired.
The
wife of the landlord also died. So far as the requirement of the landlord by
reference to the need of the mother-in-law and of the wife as a member of the family,
is concerned, has come to an end.
The
learned Additional Rent Controller held that the landlord was the owner of the
suit premises and that the purpose of the letting was residential one. However,
on the solitary ground for ejectment, he held the alleged need of the landlord
to be not bonafide. He further held that consequent upon the death of the
mother-in-law and the wife of the landlord, the accommodation in possession of
the landlord was sufficient to satisfy his requirement and therefore it could
not be held that the landlord was bonafidely in need of any additional
accommodation. The learned Additional Rent Controller was also impressed by an
admission of the landlord-respondent made in his statement that the Sarvodya
Enclave property if available to the landlord would have been sufficient to
meet his requirement.
The
death of the landlord's wife in whose name stood the property was a subsequent
event having impact on the availability of the said accommodation to the
landlord for satisfying his alleged need. In view of these findings the
Additional Rent Controller has by order dated 24.8.1995, dismissed the
application for eviction.
The
landlord preferred a revision to the High Court.
The
landlord also moved an application styled as one under Order 41 Rule 27 read
with section 151 of the CPC inviting the attention of the High Court to the
effect of the death of his wife Sushila Devi on 13th January, 1995 and annexing
with the application copy of a registered will dated 13th June, 1994 executed
by late Smt. Sushila Devi. By the said will Smt. Sushila Devi has bequeathed
her house property no. C-217, Sarvodya Enclave in favour of her four sons
subject to Dr. Anil Gupta being reimbursed by the sons for Rs. 2 lacs, the
amount spent by him on construction over the said property. The application
proceeded to state that it was a material evidence to decide the controversy
between the parties and so the evidence deserved to be taken on record and the
petition disposed of after taking the said evidence into consideration. Apart
from the copy of the registered will, the copies of the lease deed dated
12.7.78 of the plot in favour of the deceased, and the letter-cum-order from
the DDA dated 29.8.1996 intimating mutation of plot/property number C217, Sarvodya
Enclave in favour of the four sons in place of their deceased mother late Sushila
Devi were also filed. The application was opposed on behalf of the tenant. It
appears that the High Court heard the final' arguments. By the impugned order,
the revision filed by the landlord has been allowed and eviction of the tenant
ordered recording a finding of the premises in occupation of the tenant being
needed bonafide for the residence of the landlord and his family. The will
dated 30th June, 1994 executed by late Sushila Devi filed before the High Court
along with the application for additional evidence by the landlord has been
taken into consideration by the High Court though the application does not
appear to have been formally allowed and the documents annexed therewith were
not formally taken on record and admitted - muchless proved - in evidence.
Before
this Court, Ms. Syamla Pappu, the learned senior counsel for the
tenant-appellant has submitted that the High Court has committed a
jurisdictional error in reversing the findings of facts recorded by. the
Additional Rent Controller. The jurisdiction so exercised by the High Court is
not one vested in it by sub-section (8) of Section 25B of the Act. The learned
senior counsel further submitted that the findings of act arrived at by the
learned Additional Rent Controller were based on evidence and reasonably
arrived at; there was no occasion to interfere with and reverse the same. The
learned senior counsel also submitted that the High Court has committed a
serious jurisdictional irregularity by taking into consideration the documents
filed for the first time by the landlord before the High Court without formally
admitting the same in evidence and without affording the tenantappellant an
opportunity of rebutting the additional evidence.
Shri Arun
Jaitley, the learned senior counsel for the landlord-respondent has supported
the order of the High Court. He submitted that the documents placed before the
High court by the landlord along with his application merely intended a subsequent
event to be brought to the notice of the High Court. The documents were of
undoubted veracity.
He
further submitted that the ultimate finding arrived at by the High Court would
not be dislodged even if the documents accompanying the application were
excluded from consideration. At ' the end submitted Shri Jaitley that the
finding arrived at by the High Court was the only finding that cold have been
reasonably arrived at from the material available on record and hence the
conclusion arrived at by the Additional Rent Controller being not one
'according to law' within the meaning of Section 25-B (8) was rightly set aside
by the High court, in any case the present one was not a fit case for the
exercise of jurisdiction under Article 136 of the Constitution, persuasively
appealed the learned senior counsel.
Section
25-B of Delhi Rent Control Act, 1958 finding its place in Chapter III-A of the
Act was inserted into the body of the main Act by Act No .18 of 1976 with
effect from 1.12.1975. It provides for a special procedure to be followed for
the disposal of applications for eviction on the ground of bona fide need.
Obviously, this ground for eviction of the tenant has been treated on a footing
different from the one on which other grounds for eviction of the tenant stand.
Section 25-B is a self-contained provision in the sense that remedy against an
order passed by the Rent Controller thereunder is also provided by that
provision itself. Sub-section (8) provides that no appeal or second appeal
shall lie against an order for the recovery of possession of any premises made
by the Controller in accordance with the procedure specified in Section 25-B,
provided that the High Court may, for the purpose of satisfying itself that an
order made by the Controller under this section is according to law (or not),
call for the records of the case and pass such order in respect thereto as it
thinks fit'. The phraseology of the provision as reproduced hereinbefore
provides an interesting reading placed in juxtaposition with the phraseology
employed by the Legislature in drafting Section 115 of the Code of Civil
Procedure. Under the latter provision the exercise of revisional jurisdiction
of the High Court is circumscribed by the subordinate court having committed
one of the three errors, namely (i) having exercised jurisdiction not vested in
it by law, or (ii) having failed to exercise a jurisdiction so vested, or (iii)
having exercised its jurisdiction with illegality or material irregularity.
Onder
the proviso to sub-section (8) of Section 25-B, the expression governing the
exercise of revisional jurisdiction by the High Court is 'for the purpose of
satisfying if an order made by the Controller is according to law'. The revisional
jurisdiction exercisable by the High Court under Section 25-B (8) is not so
limited as is under Section 115 CPC nor so wide as that of an Appellate Court.
The High Court cannot enter into appreciation or re-appreciation of evidence
merely because it is inclined to take a different view of the facts as if it
were a court of facts. However, the High Court is obliged to test the order of
the Rent Controller on the touchstone of "whether it is according to law'.
For that limited purpose it may enter into re-appraisal of evidence, that is,
for the purpose of ascertaining whether the conclusion arrived at by the Rent
Controller is wholly unreasonable or is one that no reasonable person acting
with objectivity could have reached that conclusion on the material available.
Ignoring the weight of evidence, proceeding on wrong premise of law or deriving
such conclusion from the established facts as betray the lack of reason and/or
objectivity would render the finding of the Controller 'not according to law'
calling for an interference under proviso to sub-Section (8) of Section 25-B of
the Act. A judgment leading to miscarriage of justice is not a judgment
according to law. [See; Sarla SCC 141.] A perusal of Section 14 of the Act
shows that the law has imposed restrictions on the recovery of possession.
of any
premises by landlord from a tenant notwithstanding any law or contract to the
contrary. However, an order for recovery of possession is permissible on one or
more of the specified ground^. One such ground is the premises let for
residential purposes being required bona fide by the landlord for occupation as
residence for himself or for any member of his family dependent on him. What is
a bofta fide requirement is not defined in the Act. The words 'need' and
"require' both denote a certain degree of want with a thrust within
demanding fulfilment. 'Need' or 'requirement' qualified by word 'bonafide' or
'genuine' preceding as an adjective - is an expression often used in Rent
Control Laws. 'Bonafide or genuine need' of the landlord or that the landlord
'genuinely requires' or "requires bonafide" an accommodation for
occupation by or use for himself is an accepted ground for eviction and such
expression is often employed by Rent Control legislation draftsman. The two
expressions are interchangeable in practise and carry the same meaning.
Chambers
20th Century Dictionary defines bonafide to mean 'in good faith : genuine'. The
word 'genuine' means 'natural; not spurious; real: pure: sincere'. In Law
Dictionary, Mozley and Whit ley define bonafide to mean 'good faith, without
fraud or deceit'. Thus the term bonafide or genuinely refers to a state of
mind.
Requirement
is not a mere desire. The degree of intensity contemplated by 'requires' is
much more higher than in mere desire. The phrase 'required bonafide' is
suggestive of legislative intent that a mere desire which is outcome of whim or
fancy is not taken note of by the Rent Control Legislation. A requirement in
the sense of felt need which is an outcome of a sincere, honest desire, in
contra-distinction with a mere pretence or pretext to ev.ict a tenant, on the
part of the landlord claiming to occupy the premises for himself or for any
member of the family would entitle him to seek ejectment of the tenant. Looked
at from this angle, any setting of the facts and circumstances protruding the
need of landlord and its bonafides would be capable of successfully
withstanding the test of objective determination by the Court. The Judge of
facts should place himself in the arm chair of the landlord and then ask the
question to himself-whether in the given facts substantiated by the landlord
the need to occupy the premises can be said to be natural, real, sincere, honest.
If the answer be in the positive, the need is bonafide. The failure on the part
of the landlord to substantiate the pleaded need, or, in a given case, positive
material brought on record by the tenant enabling the court drawing an
inference that the reality was to the contrary and the landlord was merely
attempting at finding out a pretence or pretext for getting rid of the tenant,
would be enough to persuade the Court certainly to deny its judicial assistance
to the landlord.
Once
the court is satisfied of the bonafides of the need of the landlord for
premises or additional premises by applying objective standards then in the
matter of choosing out of more than one accommodation available to the landlord
his subjective choice shall be respected by the court. The court would permit
the landlord to satisfy the proven need by choosing the accommodation which the
landlord feels would be most suited .for the purpose; the court would not in
such a case thrust its own wisdom upon the choice Of the landlord by holding
that not one. but the other accommodation must be accepted by the landlord to
satisfy his such need. In short, the concept of bonafide need or genuine
requirement needs a practical approach instructed by realities of life.
An
approach either too liberal or two conservative or pedantic must be guarded
against.
The
availability of an alternate 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 bonafides of the landlord if
he unreasonably refuses to occupy the available premises to satisfy his alleged
need. Availability of such 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 nonavailability of any other reasonably suitable residential
accommodation to the landlord, would not be satisfied. Wherever another
residential accommodation is shown to exist as available than 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 alternate
residential accommodation though available is still of no 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
alternate 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 would 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.
A few
decided cases apposite to the point may be referred. A Division Bench of Madhya
Bharat High Court in (g) of the Madhya Bharat Sthan Niyantran Vidhan Samvat,
2006 where-under a landlord was entitled to eject a tenant if he "really
needs a house for himself and he possesses no other accommodation belonging to
him elsewhere". It was held that the landlord was made the sole arbiter of
his own requirements but he must prove that he in fact wants and genuinely
intended to occupy-the premises. His claim would no doubt fail if the Court
came to the conclusion that the evidence of "want" was unreliable and
that the landlord did not genuinely intend to occupy the premises. As to
alternative accommodation disentitling the landlord to the relief of possession
it was held that it must be reasonably equivalent as regards suitability in
respect to the accommodation he was claiming. This statement of law was cited
with approval before a Full Bench of the High Court of Deviram - AIR 1960 MP
345. Pandey,J. recording the majority opinion emphasised the distinction
between the expressions 'genuinely requires' and 'reasonably requires'and
said:- "It is wrong to say that "genuinely requires" is the same
as "reasonably requires". There is a distinction between the two
phrases. The former phrase refers to a state of mind; the latter to an
objective standard.
"Genuine
requirement" would vary according to the idiosyncrasy of the individual
and the time and circumstances in which he lives and thinks. Reasonable
requirement belongs to the "knowledge of the law" and means
reasonable not in the mind of the person requiring the accommodation but
reasonable according to the actual facts.
In my
opinion, in this part of Sec.4(g), the landlord is made the sole arbiter of his
own requirements but he must prove that he, in fact, wants and genuinely
intends to occupy the premises. His claim would no doubt fail if the Court came
to the conclusion that the evidence of "want" was unreliable and that
the landlord did not genuinely intend to occupy the premises".
As to
impact of availability of another vacant accommodation with the landlord it was
held in Damodar's case (supra) that it must satisfy the test of suitability for
satisfying the need of the plandlord.
The abovesaid
Full Bench decision of the High Court of Madhya Pradesh was cited with approval
before this Court SC 1113 this Court has held (vide para 18) that the landlord
does not have an unfettered right to choose the premises but merely showing that
the landlord has some other vacant premises in his possession may not be
sufficient to negative the landlord's claim if the vacant premises were not
suitable for the purpose for which he required the premises.
This
Court cautioned that the Court must understand and appreciate the relationship
between the legal rules and necessities of life.
SC
1422 this Court has held that:- " the need of the landlord should be
genuine and honest, conceived in good faith; and that, further, the court must
also consider it reasonable to gratify that need.
Landlord's
desire for possession, however honest it might otherwise be, has inevitably a
subjective element in it and that, that desire to become a
"requirement" in law must have the objective element of a
"need". It must also be su^h that the court considers it reasonable
and, therefore, eligible to be gratified. In doing so, the court must take all
relevant circumstances into consideration so that the protection afforded by
law to the tenant is not rendered merely illusory or whittled down".
- 1998
(8) SCC 119 this Court has held that the Rent Controller should not proceed on
the assumption that the landlord's requirement is not bonafide. When t^e
landlord shows a prima facie case a presumption that the requirement of the
landlord is bonafide is available to be drawn. It is not for the tenant to
dictate terms to the landlord as to how else he can adjust himself without
giving possession of the tenanted premises. While deciding the question of bonafides
of the requirement of the landlord, it is 'quite unnecessary to make an endeavour
as to how else the landlord could have adjusted himself.
SCC
353 this court has held that in considering the availability of alternative
accommodation, not availability merely but also whether the landlord has the
legal right to such accommodation has to be considered.
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), the daughter-in-law and two grand children
who are gradually growing in their age. Looking at the size of the family,
availability of three bed rooms 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 veranda to be used as a residentialclinic divided into a
consultation room and a waiting place for the patients. A drawing room, a
kitchen, a living room and a garage are bare necessities for a comfortable
living. The landlord has been living in 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 felt need of the landlord. The need as pleadad
and proved by the landlord is undoubtedly natural,. sincere and honest and
hence a bonafide 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 the tenant - appellant 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 most 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 Sarvodaya Enclave House if the whole family
cannot be conveniently and comfortably accommodated as one unit in the Defence
Colony house. It would be equally unreasonable to suggest that the entire
family must shift to Sarvodaya Enclave house which is admittedly situated at a
distance of about 7-8 kilometers 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, 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
a 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 initiation of the proceedings or the
one, which appears to have been subsequently executed by the landlords' 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. 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's case (Supra) is squarely attracted. In our opinion, the availability of Sarvodaya
Enclave property is not of any relevance or germane to determining the need and
the bonafides 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
tenant - appellant 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 dis-proof thereof.
For
the forgoing reasons, we are of the opinion that the High Court did not commit
any jurisdictional error in reversing the order of the Rent Controller and
upholding the landlord's claim for eviction. Inspite of excluding from
consideration, the documents' which wereproposed to be filed by the landlord on
the record of the High Court, the ultimate finding of the High Court is liable
to be upheld.
On the
material available on record, the only conclusion which could have been drawn
is the one drawn by the High Court. The order of the Rent Controller was not
according to law and was, therefore, rightly set aside.
The
appeal is dismissed. The tenant appellant is however granted six months time to
vacate the premises subject to filing usual undertaking within a period of one
month on the affidavit of the appellant to deliver vacant and peaceful
possession over the premises to the landlord at the end of the extended time
and in between regularly paying the rent. Costs as incurred.
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