Sudershan Thukral vs Khem Col. B. Mankani

Usha Mehra, J.

(1) Since a common point of law is involved in both the petitions being No. Cr 17/93 and Cr 88/93. I Therefore propose to these by a common order.

(2) The petitioners have assailed the impugned order of the Addl. Rent Controller on the ground that their leave to defend application has been Wrongly rejected. The landlord/owner had failed to prove his bonafide requirement. Landlord''s son acquired in 1990 a Dda flat at Vasant Kunj, consisting of three bedrooms which he has let out on rent. This fact has not been taken cognizance of by the Court below, hence in the absence of anyone fide requirement the petition ought to have been dismissed. Moreover, the intention of the landlord/owner was to sell the property and not to occupy himself.

(3) Brief facts of the case are that Khem Chand B. Mankani, respondent is the owner of the premises bearing No. B-54, New Rajinder Nagar. He is about 81 years old and his wife about 78 years old. Both are suffering from various ailments. Beside his wife, his son, Mr. B.K. Mankani, his daughter-in-law Smt. Kamlesh and ''grand children are also residing with him on the ground floor of this premises which portion consists of two bedrooms, one drawing-cum-dinning room, one store and a kitchen etc. Smt. Sudershan Thukral, the petitioner in C.R. 17/93 is occupying one room, one latrin, one bathroom-cum-latrine and verandah-cum-paraholla on the barsati floor, whereas M/s. Blaze Advertising (P) Ltd. is occupying two bedrooms, one drawing-cum-dinning room. one store and a kitchen, verandah,one Indian style latrine, one bath-cu-m-latrine. The landlord/owner, respondent herein retired as Section Officer from the Department of Industrial Development in the year 1970-71. His son Mr. B.K. Mankani who had been residing with him ever since is working as Senior Engineer at Badarpur Thermal Power Station. His daughter-in-law Smt. Kamlesh Mankani is employed in the Telephone Department. His grand son and daughter are studying in 7th and 3rd class respectively. Besides these members, who are residing with him, his daughter Lakshmi Motwani who is married to Dr. Shyam Lal Motwani are frequent visitors to his house. He and his wife being old and ailing constantly need the medical services of their son-in-law Dr. Shyam Lal Motwani who also comes and stays with them in this house. His other son Shri M.K. Mankani, who is at present residing at Bombay with his family also visits and stays with the respondent at Delhi. His grand son Harish Mankani son of Shri M.K. Mankani wants to study at Delhi but due to paucity of accommodation, he is not in a position to stay at Delhi. Under the circumstances he required the accommodation of both the floors for himself and for the members of his family. He and '' his wife are suffering from various ailments. His wife is physically unwell and is under the treatment of the doctors. They being old need the help of their son to look after them. Therefore the son with the family has to stay with them as being old and ailing they cannot live alone.

(4) The service was affected and leave to defend application was filed in which the objections were raised that the need for bona fide requirement was not there and that the petition had been filed in order to pressurise the tenants to enhance the rent. Moreover, the landlord/owner wanted to sell this premises and that is the reason for seeking eviction. In the year 1983 the landlord requested the tenant to vacate the ground floor because he was sick. On this request petitioner of C.R. 98/93 vacated ground floor and shifted to the first floor as a gesture of goodwill. At that time it was agreed that the petitioner would not be disturbed from the first floor portion. At that time number of persons living with landlord were more than presently living. Hence there was no change in the circumstances, and the family of the respondent/landlord has in fact reduced. He is in occupation of this premises ever since. His requirement has not increased. Moreover he has got three bedrooms on the ground floor and not two rooms as alleged. He is the landlord but not the owner of the premises in question. These averments were refuted and denied by the landlord/owner.

(5) The Court below came to the conclusion that the present respondent was the owner and the landlord of the premises and that he needed the premises for his bona fide requirements and that he has no other alternative suitable accommodation available with him. Consequently the leave to defend was rejected and the eviction order was passed by a common order.

(6) It is against the same that the present revision petitions have been filed, la these revision petitions so far as the decision of the Trial Court regarding the respondent being owner of the property is concerned that has not been disputed nor the letting purpose has been challenged, the order has been assailed on the premises that the respondent has sufficient accommodation with him and that he has in fact to sell this property/Counsel for the petitioners drew my attention to a letter dated 9/05/1990 written by the respondent to the petitioner in C.R. 88/93 i,e. M/s. Blaze Advertising Delhi(P) Ltd. By this letter the respondent conveyed his intention to sell the first and the second floor and before selling the same he gave the first. choice to the said petitioner to buy these portions. The letter has been reproduced in the impugned order. Mr. Rawal, Counsel for the petitioner contended that this letter clearly indicates the mind of the respondent. He wanted the rent to be increased and since it was not agreed to, he thought of disposing of the property in question in 1990. In less than two years of his desire to dispose of the property. He filed the present eviction petition so that after getting it vacated he could sell it. Moreover the son of the respondent has acquired a three bed rooms flat of Dda in Vasant Kunj. Number of that flat is not known but the said son B.K. Mankani after getting possession let out the same in 1990 itself on rent. Hence the respondent cannot seek the eviction on the ground of his son''s need. This proves the malafide. Mr. Makhija Advocate for other petitioner stressed that the intention to sell still subsists as the premises occupied by tenant fetch less price.

(7) On the other hand, Mr. C.L. Narsimhan contended that if the respondent had any malafide intention he would clandestinely disposed of the property rather than giving first option to the tenant. This action on the part of the respondent speaks volume about the straightforwardness and genuineness of the owner/landlord. I think there is force in the submission of Counsel for the respondent. The Trial Court rightly analysed that merely because respondent thought of selling the property in 1990, no inference can be drawn that the present need of the respondent is not bona fide. It can happen that the owner for the circumstances beyond his control wanted to dispose of the property. The reasons could be numerous but subsequently he has changed his mind. That does not prove that the accommodation with him is sufficient for himself and for the members of the family. This factor in itself is no ground to allow the leave to defend application. Two years period is a long period in which much water can flow and the circumstances might have changed. So many events can happen which have been explained by the respondent. Those have been explained in the counter affidavit filed by him. In the leave to defend application of petitioner of C.R. 17/93. she had not taken up the ground regarding letter dated 5/05/1990 Therefore further details were not mentioned by the respondent in his counter affidavit. In the counter affidavit filed in the eviction petition regarding the tenant of the first floor M/s. Blaze Advertising Pvt. Ltd. it was fully explained that due to paucity of accommodation and since it was difficult to get the premises vacated, it was thought by him at the relevant time to sell these two portions in order to have the alternative accommodation to meet his bona fide requirement, Since his children dependent on him were not ready to live separately and the petitioner also needed them to live with him as he and his wife being old and unwell needed their services, Therefore their living with him was eminent and urgent. He Therefore changed his mind of disposing the property and instead filed this eviction petitions. This Explanation is quite convincing and appears to be truthful and straightforward. He in fact did not hide his intention to sell this house from his tenant. Vide letter dated 5/05/1990he gave first offer to the tenant. The Trial Court, Therefore, rightly observed that if the intention of the landlord was to sell the house he could have disposed it of in a clandestine manner but he did not do any such thing andI see no reason to disagree with these observations.

(8) The second ground taken is that the accommodation with the respondent is sufficient. I think this argument is also without force. The Court below has dealt in detail the accommodation available with the respondent, his personal requirement and the requirements of his family members dependent on him and those who visit him quite frequently. The conclusion of the Trial Court that the need of the landlord/owner was bonafide. This he held while taking into consideration his family members, his old age and the illness of his wife, the necessity of his son-in-law staying with them in order to look after his wife as he happens to be a doctor. Therefore the respondent requires more accommodation than what is available with him. The Court below after analysing the evidence came to the conclusion that the respondent is in occupation of the ground floor consisting of two bedrooms, one drawing-cum-dinning room and not three bed rooms as alleged by the petitioners. Moreover, u/s 25-B(8) the scope and ambit of the revisional jurisdiction of this Court is very limited. This Court in it provisional jurisdiction cannot reassess the value of evidence or interfere with the finding of fact. In fact no mistake of law has been pointed out. Therefore the finding regarding availability of accommodation with the respondent cannot be interfered in this revisional jurisdiction. His need is a question of fact.

(9) As regard his intention to increase the rent, this argument is also without force because since inception of the tenancy no rent has been increased by the respondent. Therefore this is not a tangible plea for which leave to defend should have been granted.

(10) During the course of arguments Mr. Bawal contended that the son of the petitioner had been allotted three bed rooms house in Vasant Kunj in1990 which he let out on rent. Therefore there is no bona fide requirement as far as his son is concerned. The leave to defend application was filed in Feb.1992 but this ground was not taken hence the Trial Court had no opportunity to decide this issue. Moreover, even before this Court no number on particulars of the house allotted in the name of the son at Vasant Kunj had been furnished. Even assuming for the sake of argument that son of the respondent had got a flat of Dda in Vasant Kunj still to my mind his services are required by the old parents. The house of the petitioner is at Rajinder Nagar whereas according to petitioner respondent''s son has got a house at Vasant Kunj which is at a far off distance from Rajinder Nagar. The old and ailing couple has to be looked after by some member of the family, constantly, day in and day out, and this can only be possible if the son with his family lives with the parents. Therefore it cannot be said that need of the respondent is not bona fide. Looking from another angle it can be said that the parents being old and in desperate need of the services of their son and his family will also have to shift with him in old age, if his son shifts with his family then they will also have to shift with him. Whereas the accommodation at Vasant Kunj is stated to be three bed rooms only, that again will not be sufficient for the petitioner and the members of his family because three bedrooms are not sufficient for the whole family. So in either way even presuming the son has got a flat it is not alternative suitable accommodation for the petitioner member of his family.

(11) For the reasons stated above, I am in agreement with the conclusion arrived at by the Trial Court and find) no merit in the petitions'' which are accordingly dismissed.