KISHNI DEVI DECEASED THR HER LEGAL HEIRS vs SATPAL SACHDEVA (DECEASED) THR LR AND ANR
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 15.01.2024
Judgment pronounced on: 24.01.2024
+ RC.REV. 268/2022
KISHNI DEVI DECEASED THROUGH HER LEGAL HEIRS
….. Petitioner
Through: Mr. Abhik Kumar, Adv.
versus
SATPAL SACHDEVA (DECEASED) THR LR & ANR.
….. Respondents
Through: Mr Madan Lal Sharma, Ms Disha Sharma and Ms Tejaswini Verma Adv.
CORAM:
HON’BLE MR. JUSTICE GIRISH KATHPALIA
GIRISH KATHPALIA, J.:
1. By way of this petition, brought under proviso to Section 25B(8) of the Delhi Rent Control Act, the petitioners/landlords have assailed order dated 28.02.2022 of the learned Additional Rent Controller, whereby the Eviction Petition under Section 14(1)(e) of the Act was dismissed after full dress trial. Upon notice of this petition, the respondents/tenants entered appearance through counsel. I heard learned counsel for both sides.
2. Briefly stated, circumstances relevant for present purposes are as follows.
2.1 Smt. Kishni Devi, the now deceased mother of the present petitioners filed eviction petition on the grounds under Section 14(1)(e) of the Delhi Rent Control Act against Shri Satpal Sachdeva and another pertaining to a shop (hereinafter referred to as the subject premises) admeasuring 15x69 on ground floor of the larger premises bearing No. 16/678E, Ganesh Gali, Tank Road, Bapa Nagar, Karol Bagh, New Delhi (hereinafter referred to as the larger property). Subsequent to death of Smt.Kishni Devi and Shri Satpal Sachdeva, they were substituted by their respective legal representatives, who are parties before this court.
2.2 In her eviction petition, Smt.Kishni Devi, claiming herself to be the owner of the larger property, pleaded that the larger property, constructed up to fourth floor also has a basement and three shops on the ground floor, including the subject premises; that she has two sons namely Jaswant and Nand Kishore, besides four married daughters residing in their respective matrimonial home; that her son Jaswant and his family consisting of his wife and three children are in occupation of the second floor of the larger property, while her other son Nand Kishore with his family consisting of his wife and four children is occupying third floor of the same; that the respondents were inducted as tenants into the subject premises in the year 1991 for commercial purposes at a monthly rent of Rs.1000/- excluding other charges, which was increased time to time and the last rate of rent was Rs.1950/- per month; that besides the subject premises, the respondents owned two more shops, one cutting factory premises and a residential accommodation; that the remaining shops on the ground floor of the larger property are occupied by another tenant namely Devender and basement of the larger property is being used as godown by another tenant; that Jaswant, son of Smt.Kishni Devi is unemployed, though he takes up seasonal work temporarily in order to support his large family; that Jaswant has 5-6 years of experience of the business run by the respondents, and the petitioner is in urgent bona fide need of the subject premises for her son Jaswant as she has no reasonably suitable alternate accommodation, so the respondents/tenants are liable to be evicted from the subject premises under Section 14(1)(e) of the Act .
2.3 Upon service of prescribed summons of the eviction petition, the respondents/tenants filed application for leave to contest, which was allowed by the learned Additional Rent Controller vide order dated 08.06.2018. In their written statement, respondents/tenants pleaded inter alia that the petitioner had not filed any document to show that Jaswant for whom she needs the subject premise is dependent upon her or that he is unemployed; that Jaswant is working in ICICI Bank as relationship manager as reflected from copy of his visiting card and printout of his Facebook account; that the petitioner owns a commercial property at Bapa Nagar and another commercial property at Nihal Vihar, which can be used by Jaswant to carry on his commercial activity; that Jaswant is residing separately from the petitioner on the second floor of the larger property and is not dependent upon her, therefore, the petition is liable to be dismissed.
2.4 In the backdrop of above rival pleadings, the matter was taken through full dress trial before the learned Additional Rent Controller, in which both sides examined three witnesses each. After analysis of the pleadings and evidence on record, the learned Additional Rent Controller dismissed the eviction petition by way of the impugned order, holding that the ownership of the subject premises and the relationship of tenancy between the parties stood proved, but the petitioner had failed to prove the bona fide need and dependency of Jaswant upon her. After recording the findings on those aspects, the learned Additional Rent Controller in the impugned order held that there was no need to deal with the remaining elements of Section 14(1)(e) of the Act.
2.5 Hence, the present revision petition by the landlords.
3. Before proceeding further, relevant portions of the impugned order are extracted as below:
8. In order to succeed in the case, the petitioner must establish:-
(i) Ownership of the petitioner over the tenanted premises as well as existence of landlord-tenant relationship between the parties.
(ii) The petitioner requires the tenanted premises bonafide for her son dependent upon him.
(iii) The petitioner doesn’t have any other alternate reasonable suitable accommodation.
12. Therefore, in the light of above discussion, pleadings, evidence and material placed on record, the ownership of the petitioner over the tenanted premises as well as existence of landlord-tenant relationship between the parties stands proved for the purpose of the DRC Act.
16. On the perusal of testimonies of PW1, PW2 & RW1 reveal that PW1 & PW2 have not disclosed the purpose, for which the tenanted premises is required. Merely deposing that the tenanted premises is urgently required for Jaswant does not raise any purpose for bonafide need nor have they disclosed any such requirement in their evidence. Merely deposing that PW2 is dependent upon PW1 is full of doubt because admittedly, PW2 is residing separately with his whole family on the 2nd floor of the suit property.
17. Therefore, in view of the discussion made above, in the light of the pleadings, evidence and material placed on record, the petitioner has miserably failed to prove the bonafide need and dependency of her son Jaswant upon her for accommodation.
18. Since the petitioner(s) has/have failed to prove the bonafide need and dependency of Jaswant upon her, therefore, rest of the elements of Section 14 (1) (e) of the DRC Act are not required to be dealt with in detail.
4. During arguments, learned counsel for petitioners/landlords contended that the impugned order is not sustainable in law. It was argued that the only reason behind dismissal of the eviction petition is that the petitioners/landlords did not disclose the exact nature of business for which Jaswant needed the subject premises and that is a serious error in law in view of the settled legal position. With the help of the judicial precedents, quoted hereafter, the learned counsel for petitioners/landlords contended that it is not necessary for the landlord to disclose the exact business which he intends to carry out from the subject premises after the same are vacated. On the other hand, learned counsel for respondents/tenants supported the impugned order and contended that where the landlord fails to disclose the exact business, which he intends to start in the tenanted premises after the same are vacated, the need cannot be treated as bona fide. Learned counsel for respondents/tenants also alleged that the petitioners concealed availability of alternate accommodation at Chandan Vihar, sale whereof was a sham transaction.
5. So far as the allegation of the respondents/tenants qua concealment of alternate accommodation is concerned, it is only the petitioners, who have assailed the impugned order. Moreover, as mentioned above, the learned Additional Rent Controller found it not necessary to venture into the element of availability of reasonably suitable alternate accommodation. That being so, in view of restricted jurisdiction available to this court under proviso to Section 25B(8) of the Act, this court in the present proceedings cannot examine that argument.
6. Basically, two questions have been posed before this court. Firstly, whether Jaswant is employed with ICICI Bank and cannot be treated as a dependent on the now deceased petitioner Smt.Kishni Devi for the purposes of proceedings under Section 14(1)(e) of the Act. Secondly, whether the petition is liable to be rejected because the petitioners have not disclosed the exact business, which Jaswant intends to start from the subject premises after the same are vacated.
7. So far as the issue of dependence of Jaswant is concerned, admittedly now after death of his mother Smt.Kishni Devi, he has inherited the subject premises and is accordingly a co-owner thereof along with remaining legal representatives of Smt.Kishni Devi, therefore, even for his personal bona fide need, Jaswant can maintain this petition. Besides, it is trite that for the purposes of eviction proceedings under Section 14(1)(e) of the Act, the dependence of a family member of the landlord on her/him has to be construed liberally so as to include also the family members who need not necessarily be financially dependent upon the landlord. Even if Jaswant was living separate from his mother Smt.Kishni Devi, their emotional dependence on each other cannot be ignored for present purposes. Reference in this regard can be drawn from the judgments in the cases titled : Joginder Pal vs Naval Kishore Behal, (2002) 5 SCC 397 and Anil Kumar Gupta vs Deepika Verma, 2015:DHC:8676.
8. However, there is another aspect. The learned Additional Rent Controller, being the final fact finding authority in such proceedings, ought to have specifically pointed out which part of whose testimony created doubt qua employment status of Jaswant. Seemingly, the learned Additional Rent Controller missed that according to RW1, employment of Jaswant was in recovery department of ICICI Bank; and this statement has to be read in conjunction with the visiting card Ex.RW1/2, which bears name of not just ICICI Bank, but also of another entity named Force. Nothing prevented the respondents from summoning records from ICICI Bank to cogently establish employment status of Jaswant. So, it cannot be ruled out that as claimed by petitioners, Jaswant was temporarily employed with Force, working as recovery agent for ICICI Bank. Either way, on these aspects, learned Additional Rent Controller ought to have delivered some findings after discussion. Of course, on account of restricted scope of interference of the High Court in these proceedings, the view of the Additional Rent Controller on facts cannot be substituted by a contrary view of this court, but here is a case, in which the learned Additional Rent Controller has not delivered a reasoned view. In my view, testimony of PW1 and PW2 read in entirety would show that Jaswant was financially also dependent upon his mother Smt.Kishni Devi, the original petitioner and findings to the contrary in that regard delivered by the learned Additional Rent Controller are perverse.
9. Then comes the argument of learned counsel for respondents/tenants that the petitioners should have disclosed the purpose for which the tenanted premises is required and that merely deposing the urgent requirement for Jaswant does not raise any bona fide need. It is the substance of the pleadings and evidence in entirety that has to be kept in mind. The litigants are not required to submit pleadings and testimony in a parrot-like manner, reiterating the expressions used in the statute. Reading the pleadings and evidence in entirety, it is beyond doubt that the subject premises are required urgently for Jaswant, who is unemployed and has experience of business similar to the business of the respondents/tenants. The court has to read substance of the material on record that Jaswant intends to commence the business similar to the business of the respondents/tenants once the subject premises are vacated.
10. In the case of Raj Kumar Khaitan & Ors vs Bibi Zubaida Khatoon & Anr., (1997) 11 SCC 411, cited on behalf of petitioners/landlords, the Supreme Court observed thus:
4. It is clear from the averments made in the above quoted paragraphs that the plaintiffs asserted that there were no other means of livelihood with them and as such they wanted to set up their own business in the premises in dispute. The High Court, however, came to the conclusion that apart from the above quoted pleadings it was necessary to plead the nature of the business which the appellant/plaintiff wanted to start in the premises. We are of the view that the High Court fell into patent error. It was not necessary for the appellant/landlord to indicate the precise nature of the business which they intended to start in the premises. Even if the nature of business would have been indicated nobody could bind the landlords to start the same business in the premises after it was vacated.
11. Although, the pleadings and evidence remain unchallenged to the effect that Jaswant had acquired experience of business similar to the business of the respondents/tenants, the landlord seeking eviction on the ground of bona fide requirement to start business need not even establish that he possesses the requisite know-how for doing the business, as held by the Supreme Court in the case of Dattatraya Laxman Kamble vs Abdul Rasul Moulali Kothune & Anr., AIR 1999 SC 2226.
12. Even if it is assumed that Jaswant is permanently employed at present with the ICICI Bank, the pleadings and evidence of petitioners/landlords to the effect that the subject premises are bona fide required for Jaswant to carryout his business cannot fail. In the case of Raghunath G. Panhale (dead) by LRs vs Chaganlal Sundarji & Co., AIR 1999 SC 3864, it was held thus:
It will be seen that the trial Court and the appellate Court had clearly erred in law. They practically equated the test of “need or requirement” to be equivalent to “dire or absolute or compelling necessity”. According to them, if the plaintiff had not permanently lost his job on account of the lock-out or if he had not resigned his job, he could not be treated as a person without any means of livelihood, as contended by him and hence not entitled to an order for possession of the shop. This test, in our view, is not the proper test. A landlord need not lose his existing job nor resign it nor reach a level of starvation to contemplate that he must get possession of his premises for establishing a business. The manner in which the courts have gone into the meaning of “lock-out” in the Industrial Disputes Act, 1947 appears to us to be nothing but a perverse approach to the problem. One cannot imagine that a landlord who is in service should first resign his job and wait for the unknown and uncertain result of a long drawn litigation. If he resigned his job, he might indeed end up in utter poverty. Joblessness is not a condition precedent for seeking to get back one’s premises. For that matter assuming the landlord was in a job and had not resigned it or assuming that pending the long drawn litigation he started some other temporary water business to sustain himself, that would not be an indication that the need for establishing a grocery shop was not a bona fide or a reasonable requirement or that it was motivated or was a mere design to evict the tenant. It is not necessary for the landlord to adduce evidence that he had money in deposit in a Bank nor produce proof of funds to prove his readiness and willingness as in a suit for specific performance of an agreement of sale of immovable property. So far as experience is concerned, one would not think that a grocery business was one which required extraordinary expertise. It is, therefore, clear that the entire approach of both the Courts was absolutely wrong in law, and perverse on fact. Unfortunately, the High Court simply dismissed the writ petition filed under Article 227 stating that the findings were one of fact.
13. Therefore, I am unable to uphold the findings arrived at by the learned Additional Rent Controller in paras 16 to 18 of the impugned order as quoted above. As mentioned above, the learned Additional Rent Controller opted not to examine the remaining elements of Section 14(1)(e) of the Act.
14. In view of the aforesaid, the impugned order is set aside and the matter is remanded to the learned Additional Rent Controller with directions to pass fresh order in the light of above discussion after hearing both sides afresh.
15. Keeping in mind that this dispute has been pending since the year 2013 when the eviction petition was originally filed, the learned Additional Rent Controller is requested to dispose of the matter as expeditiously as possible, but within two months of the receipt of copy of this order. In order to ensure expeditious disposal, both sides are directed to appear before the learned Additional Rent Controller on 01.02.2024 and not to seek adjournments except for compelling reasons. Copy of this order be sent immediately to the learned Additional Rent Controller.
GIRISH KATHPALIA
(JUDGE)
JANUARY 24, 2024/as
RC.REV. 268/2022 Page 11 of 11 pages