C.L. Davar vs Shri Amar Nath Kapur

Tek Chand, J.—This is a second appeal from order under the Delhi Rent Control Act of 1958 by the tenant who feels aggrieved from the order of the Rent Control Tribunal ordering his eviction. The landlord hid filed an application u/s 14(1 )(e) of the Act seeking tenant''s ejectment on the ground-

that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof-and that the landlord.........has no other reasonably suitable residential accommodation.

It is a double storeyed house in Nizam-ud-din area. The accommodation on the two floors is identical. There is also a second floor on which there is a barsati. The landlord''s family consists of himself, his wife and a college going unmarried daughter and two sons. One son is living with him and is unmarried and the other son is serving in the Army outside Delhi. At present the landlord is residing in a flat in Cannought Circus which he has taken on rent. Besides his family, there also lives in one room as his sub-tenant his brother-in-law S. L. Chopra. The drawing cum dining room is being shared by them.

The Rent Controller, while dismissing the landlord''s petition, did find that the rented premises at present in the occupation of the Petitioner were not sufficiently commodious and he required the suit premises for his own family''s residence. He, however, refused the relief principally for the reason that the ground floor of which the suit premises form part fell vacant in 1958 and again in 1959 and instead of occupying the ground floor the landlord rented the premises on a higher rent than what was fetched previously. The Rent Controller thought that the requirements of the Petitioner were not bona fide. The landlord, however, was successful in his appeal before the Rent Control Tribunal. The Tribunal was of the view that there was no reasonable ground to doubt the bona fides of the landlord''s requirements when he had not occupied the ground floor on its falling vacant first in 1958 and again in 1959 especially when he had explained that the upper storey has more accommodation and therefore, more convenient for him and for his family.

A second appeal was filed in this Court which was heard by the Hon''ble the Chief Justice. It was argued before him on behalf of the tenant that there was no clear and specific statement in the evidence of the landlord that the son was living at present in the flat occupied by the landlord along with his brother in law. It was also contended that there was not sufficient material as to whether the business of the son was prosperous and whether he had achieved economic independence from his father. The question whether the son was dependent on his father had not been considered at all by the Controller and no finding had been given by the Tribunal. In these circumstances the Hon''ble the Chief Justice sent the case back to the Court of the Rent Controller for an enquiry. A report has now been received. According to the Kent Controller''s report Netar Krishan is living with his parents. There is also evidence led in this case to show that Netar Krishan is living in the same house along with the other members of the family. This contention is no longer opposed by the learned Counsel for the tenant. It was also found that it has not been established that Netar Krishan had not achieved economic independence as a result of the working of the shop. The contention of the landlord that the shop was running at a loss has been disbelieved. Adverse comments were also made on the fact that the books of account were not produced and that it was erroneously stated that no account books had been maintained. The Rent Controller thought that Netar Krishan had sustained a loss of about Rs. 8,000/- out of the total investment of Rs. 12,000/- and in the circumstances he found it unbelievable that Netar Krishan should continue this business. He concluded that Netar Krishan was not proved to be dependent on his father, the Petitioner

I have heard lengthy arguments. It was first maintained that Netar Krishan is not a dependent on his father. The evidence on the record is that Shri Amar Nath Kapur, the Petitioner, had invested at different times, three sums of Rs. 3,184-36 np., Rs. 7.000/- and Rs. l,200/- total Rs. 11,384.36 np. A part of this money he had borrowed and for this he was paving interest to his brother in law, A.W. 5, R. S. Chopra. The landlord of the shop Jugal Kishore, A.W. 4, stated that the shop had been given on rent to Amar Nath Kapur, the father, and not to his son Netar Krishan and the rent was being received from the father. This shop is not in any market but in a residential area. The evidence on the record shows that the daily turnover does not exceed Rs. 50/-. No income tax is being paid and the shop is also exempt from sales tax in view of inadequate turnover. The evidence shows that the shop is running at a loss and there is no evidence in rebuttal. The Kent Controller has erroneously assumed that the net loss sustained is Rs. 8,000/- and, therefore, he thought that it was unbelievable that Netar Krishan should still be running the shop. The figure of the loss had been erroneously arived at by the Rent Controller. That being so, there is nothing to suspect the correctness of the statement of Netar Krishan that the shop is not yielding any profit.

The next consideration in this connection is that even if it be assumed that the shop is not running at a loss can it be said that Netar Krishan is not dependent upon his father. I entirely agree with the view expressed by the Hon''ble the Chief Justice in his order dated the 14th March, 1963, that the word "dependent" cannot be construed as meaning nothing but wholly dependent in the sense of not earning any thing at all and being entirely dependent on the father for board, lodging and food. The term has to be construed as meaning a person not wholly independent or self supporting and in a position to set up a separate residence.

Ordinarily the word "dependent" means a person in need of aid or support and who is not self sustaining ; a person who looks to another for support and maintenance. The fact that to a limited extent he contributes towards his maintenance and support though not wholly, can not take him out of the category of a "dependent". Any one who is not entirely self supporting is "dependent" as he has to derive support from another. A person who relies in while or in part for support from another is a "dependent" on him. Where a son whose personal earnings are inadequate to maintain a standard consistent with his position in life and to that extent is supported by his parents is "dependent" on the latter. The mere fact that he is making some contribution towards his own maintenance is not the criterion so long as his earnings are not adequate and he leans upon his parents or relatives in toco parentis for his support. In this context a "dependent" is one who is not self supporting and is one who relies on another for reasonable necessities of life, and includes a person partially dependent.

I can also conceive of cases where dependence for purposes of this act may not be financial. Dependence in a conceivable case may be conditioned by physical or mental health. Blindness, paralysis, insanity or other disabilities make a person, who may otherwise be in affluent circumstances, dependent on another. If a person has a child suffering from any one of such disabilities, but who may be financially well off, he would be treated for purposes of section (sic)4(1)(e) as "dependent" on his parents. Such a parent as landlord, can legitimately urge, that the premises are required bona fide by him for occupation as a residence for a member of his family suffering from such disability, as he is a person who is dependent upon him for care and looking after

In the instant case the question of such a type of dependence does not arise, bat I have adverted to it lest it be construed that dependence is necessarily financial.

The unrebutted statements on the record too show that Netar Krishan is dependent on his father. His income is not sufficient and he is not yet chargeable to income tax The money in the business has been contributed by the father partly from borrowing. The rent of the shop is being paid by the father. Even if it be assumed that the shop is the exclusive property of Netar Krishan and the contributions from the father are in the nature of a gift-though for this assumption there is no good ground-the son in the circumstances of this case is dependent on his father.

It was then said that it is not a bona fide requirement in so far as the ground floor, which ordinarily is preferred to fist-floor fell vacant on two occasions in 1958 and again in 1959 but the landlord did not occupy it for himself. The contention of the landlord is that the accommodation on the first and second floors taken together is more than that on the ground-floor besides the amenities of an open terrace. It was never put in cross-examination to the landlord that the amenities of the ground floor and the upper floors are same. The learned Counsel for the tenant relied upon Natesan Vs. Surya Bagadhur Shah, but the facts of that case are not in pari materia with the facts of this case. It cannot be said in this case, as was found by the learned Single Judge of the Madras High Court, that the grounds of preference were illusory and the ground floor offered the same amenities and convenience. I am not satisfied on the record that the requirement of the landlord is not bona fide. Having regard to insufficient accommodation in the rented house occupied by the landlord and the requirements of his family it will not be just to deprive him of better accommodation in his own house. It was held in Sumatibala Sen v. Heramba Kumar Roy, 80 C. W. N. 783, that the fact that at some past period some rooms fell vacant and, for some reason or other, the Plaintiff did not choose to occupy these rooms but re-let the same to other persons does not necessarily disentitle the Plaintiff from making out a case of reasonable requirement.

In Ireland v. Taylor, (l918)2 All. E. R 450, Tucker, Lord Justice, said that the landlord must be the sole arbiter of his own requirements, provided he proves that he, in fact, desires possession and genuinely intends to occupy Law provides a safeguard to the tenant in the case of a landlord going back on his expressed intention. Bona fides are to be seen at the time the claim for eviction is made and in this case it cannot be said that the landlord was seeking eviction not in view of his requirements but for some ulterior purpose. Reference inter alia may be made to Maharaj Jagat Bahadur Singh v. Badri Parshad Seth, (1954)56 P. L. R. 549, which was followed in Shrimati Lila Tully v. S. Gopal Singh, (1962)64 P.L.R. 441. Bona fides in the sense of honest intention to occupy the premises is present in this case.

It was also contended on behalf of the landlord that the scope of the second appeal u/s 39(2) of the Rent Control Act, 1058, is restricted. It is not any question of law which entitles the unsuccessful party to prefer a second appeal, but there must be some substantial question of law. The decision in the main rests on interpretation of evidence and even if some ancillary questions of law can be made out no substantial question of law is involved in the second appeal. For this reason also the second appeal deserves to fail.

For reasons discussed above, the appeal is dismissed but in the circumstances of the case the parties are left to bear their own costs. The tenant is directed to vacate the premises or of before 30th of June, 1963.