C.R.P. No.833/2003 Page 1 of 31 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: 31.08.2009 % Judgment delivered on: 15.09.2009 + C.R. P. No. 833/2003 I.M. SETHI .....Petitioner Through: Mr. Rajesh Yadav and Ms. Ruchira V. Arora, Advocates. versus M/S. TRADE LINKS LIMITED .....Respondent Through: Mr. Girdhar Govind and Ms. Noorun Nahar Firdausi, Advocates. CORAM: HON’BLE MR. JUSTICE VIPIN SANGHI 1. Whether the Reporters of local papers may be allowed to see the judgment? No 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes J U D G M E N T VIPIN SANGHI, J. 1. I have heard learned counsel for the parties and proceed to dispose off this revision petition. 2. The petitioner is the landlord in respect of the tenanted premises with the respondent. In the year 1996, the petitioner preferred an eviction petition under Sections 14C (on the ground C.R.P. No.833/2003 Page 2 of 31 that he has retired from government service) and 14(1)(e) (on the ground of bona fide requirement of the petitioner and his family) of the Delhi Rent Control Act 1958 (the Act) to seek eviction of the respondent from the tenanted premises. The petitioner had, prior to the filing of the eviction petition against the respondent, also preferred another eviction petition against another tenant, one Ms. Neeru Verma, also on the ground of eviction contained in Section 14C of the Act in respect of portion under her tenancy. During the pendency of the eviction petition against the respondent, the petitioner obtained possession of the premises let out to Ms. Neeru Verma upon succeeding in his petition under Section 14C. Consequently, the eviction petition filed against the respondent was amended in December, 2000. The ground of eviction under Section 14C was, therefore, held to be not available to the petitioner any longer to seek eviction of the respondent herein. The petitioner does not press for eviction of the respondent on the ground of eviction contained on Section 14C of the Act. Therefore, the impugned order needs examination only on the ground of bona fide requirement of the petitioner. 3. In the impugned order dated 21.04.2003 passed by the learned Additional Rent Controller, Delhi he has returned findings in favour of the petitioner in so far as the question of ownership of the tenanted premises is concerned, and about the existence of the relationship of landlord and tenant between the petitioner and the C.R.P. No.833/2003 Page 3 of 31 respondent. These findings have not been assailed by the respondent in any proceeding. These findings have, therefore, attained finality. On the question of purpose of letting the finding returned was that the same was composite i.e. residential-cum- commercial. On question of bona fide requirement of the petitioner, the Court returned a finding against the petitioner looking to the accommodation that became available with him consequent upon Ms. Neeru Verma being evicted from a portion of the property. Consequently, the eviction petition has been dismissed by the impugned order. 4. During the pendency of this petition, the Supreme Court has rendered its decision in Satyawati Sharma v. Union of India & Anr. (2008) 5 SCC 287. On account of the aforesaid decision being rendered, the issue whether the premises was let out for residential-cum-commercial purpose or only for residential purpose has become irrelevant. Even if it is assumed that the purpose of letting was residential-cum-commercial, the petitioner would be entitled to maintain the petition on the ground contained in Section 14(1)(e) of the Act. Consequently, the only aspect on which the impugned order needs to be examined in this revision petition is with regard to the approach of the learned ARC in assessing the bona fide requirement of the petitioner to claim eviction of the respondent from the premises under its tenancy. In this light I proceed to narrate a few background facts. C.R.P. No.833/2003 Page 4 of 31 5. The property bearing No.13B/4, Uttari Marg known as 13B/4, Sant Gadge Marg, Northern Extension Area, New Delhi was owned by Sh. J.R. Sethi, father of the petitioner. Sh. J.R. Sethi died leaving a Will dated 06.07.1971. As per the Will Smt. Dayawati, his widow, remained the owner during her lifetime and after her death, as per the said Will the property devolved upon the petitioner and his brother Sh. R.C. Sethi. After the mother’s death, as per mutual settlement between the petitioner and his brother the ground floor of the said property and the left side garage block was taken by Sh. R.C. Sethi, while the first floor and Barsati floor along with right side garage block was taken by the petitioner. Thus, the petitioner became the exclusive owner of the first floor portion as also the Barsati floor portion. 6. The premises in question with the respondent/tenant consists of one bedroom, one servant quarter, one store room and one bathroom on the first floor and two rooms on Barsati, one mezzanine room above garage and terrace above garage block with open toilet, which has been clearly shown in red in the site plan attached with the amended eviction petition. 7. The case of the petitioner in his amended eviction petition was that he did not own any other property in Delhi except the aforesaid property, that too jointly with his brother Sh. R.C. Sethi. The family of the petitioner, at the time of filing of the petition C.R.P. No.833/2003 Page 5 of 31 consisted of himself, his wife, two married daughters and one unmarried daughter. The petitioner stated that he had retired on superannuation from Central Railway as Chief Mechanical Engineer on 30.09.1995. At the time of his superannuation, he was posted at Bombay and after his retirement he shifted to Delhi on 07.06.1996 along with his family members and had been residing with his in- laws at 5B, Link Road, Jangpura Extension on account of paucity of accommodation. The petitioner stated that though he had obtained possession from the other tenant Ms. Neeru Verma and he was in possession of the portion vacated by her, the said portion was not sufficient for his bona fide requirements and that of his family. The requirement of the petitioner set out in the amended petition was as follows: “(i) One Bed Room for the Petitioner and his wife (ii) One dressing room. (iii) One Bed Room for an unmarried daughter. (iv) Two Bed Rooms for the married daughters of the Petitioner who off and on visit the house of the Petitioner with their husband and children as per the normal Hindu customs. (v) One Guest Bed Room. (vi) One Study Room for unmarried daughter. (vii) One Study and Consultation Room for the Petitioner. (viii) One Drawing-cum-dining Room. C.R.P. No.833/2003 Page 6 of 31 (ix) One Pooja/Meditation Room. (x) One Kitchen with a store, toilets and open terrace. (xi) Two Rooms required as servant quarters for full time domestic servants with toilets. (xii) One Box room for storage.” 8. In its written statement, the respondent admitted to being in occupation of two bedrooms, one store room, one bathroom on the first floor, two Barsati rooms with open terrace at the Barsati floor, one room, open toilet and open terrace above the garage block. There is no doubt that whatever portion of the property No.13B/4, Uttari Marg/Sant Gadge Marg, Northern Extension Area, New Delhi the respondent is in possession of, is in its capacity as a tenant under the aforesaid lease only, and not otherwise. The respondent claimed to be a tenant in the premises since 05.11.1971. It was stated that from the other tenant Ms. Neeru Verma, the petitioner had obtained possession of drawing room, dining room, study room, office, three bedrooms with attached bath, kitchen, two verandah, corridor on the first floor, open space/terrace and a toilet on the second floor and a garage. 9. Leave to defend the eviction petition was initially declined by the ARC, but that decision was reversed by this Court on 17.11.1997. Accordingly, the matter went through a regular trial. The petitioner appeared as PW-1. He stated that his family consists C.R.P. No.833/2003 Page 7 of 31 himself, his wife, three daughters of which the elder two were married and the youngest was staying with the petitioner. He stated that he had two grandchildren and two sons-in-law. At the relevant time his younger daughter was doing her M.A. (Psychology) from Delhi University. He also deposed that he retired as Chief Mechanical Engineer from Central Railway in September, 1995. The accommodation available with him, as per his deposition comprised of three bedrooms, one dressing room, three bathrooms, front verandah, back verandah which has been extended by removing the partition wall of the adjoining small room which was of the size of 11.5 ft. x 10 ft., and one garage. The reason for removing the partition wall of the small room was stated as follows:- “This partition wall I had to remove as the corresponding partition wall on the ground floor was removed by my brother and consequently when there was no support for the wall, I had no other option but to remove it.” 10. He further deposed as follows: “During the pendency of this case, I recover possession of one office room, two bedrooms, dining-drawing room, three bathrooms, front verandah and back verandah, kitchen and garage from a tenant Mrs. Neeru Verma vide an eviction order dated 13.8.98 passed by Mrs. R. Kiran Nath, the then Ld. Rent Controller. The accommodation presently available with me is highly insufficient. I need one bedroom for my wife and me with and attached dressing room and bathroom, one bedroom for my unmarried daughter with bathroom and study room, two bedrooms for my two daughters and C.R.P. No.833/2003 Page 8 of 31 grandchildren. My married daughters keep coming to me as per Hindu customs as well as for their professional assignments. One guest room, one office room for my consultancy services. One room for my assisting staff. One room for my wife and her professional work for giving tutions as she is a trained and qualified teacher. I need two servant quarters for the servant, garage, drawing-dining, kitchen, puja room, store room, box room and terrace etc. My eldest daughter Malini Vaidya w/o Jayesh Vaidya has done her M.S. Economic and Finance and she is presently working EGON ZENDER in Singapore. My son-in-law is in charge of foreign equities in the Standard Chartered Bank. They have two children aged 5 and 7. My daughter, son-in-law and grand children are Indian citizens with Indian passport. My second daughter has done MBA and she is at present accompanying her husband Sh. Samudra Sen, who has gone to USA for second MBA. She is working there on temporary basis. Both of them are Indian Citizens and Indian Passport holders. Both my daughters, son-in-laws and grand children want to come back to India. As I have no son I am also keen that my daughters, sons-in-law and grand children come and stay with me. Both my daughters and sons-in-law have applied for job in MNCs and banks. My eldest daughter and son-in- law had once taken up an employment in Delhi after coming from USA. Neither my daughters nor their husbands own any property in Delhi. My wife did her B.A., B.Ed. from Delhi University. She has taught at many schools including D.P.S. in Delhi, St. Joseph Varanasi, C.J.M. at Mumbai. At present she is giving tutions at home. There is no proper room at home for this purpose. Therefore, she sometimes operate from verandah and drawing room and she cannot take up more students due to lack of space. I am a graduate of Institutions of Mechanical Engineers, C.R.P. No.833/2003 Page 9 of 31 London. At present I have been taken up consultancy relating to Mechanical Engineering and Railway related projects. At present I have got three projects in hand, from Pan India Consultants, and Aryeal Exporters P. Ltd.” (emphasis supplied). 11. The petitioner deposed that he had started his consultancy services being graduate of Institution of Mechanical Engineer, London, and having the experience of working as Chief Mechanical Engineer with the Railways. He disclosed the details of his various professional clients and stated: “I have no proper place to work on the projects and I work from the drawing room. It disrupts the working as well as living. I cannot operate from the offices of Principles as a condition of awarding projects is that they will not be providing me any space and they do not have offices in Delhi. It has an adverse effect on my work as I cannot call my clients for discussion. There is no proper space for display, discussion, sitting space for staffs and ultimately there is delay in execution of work. My clients have told me to have proper arrangement in future otherwise they will not award me any work. I need one room on the first floor for my personal office and one barsati for my staff, computers and other equipments. (emphasis supplied).” 12. Though no such averment was made in the eviction petition, with regard to the requirement of his wife for accommodation to run tuition classes, in his deposition as extracted above, the petitioner put forth her requirement as well of one room to take tuition classes at home. C.R.P. No.833/2003 Page 10 of 31 13. Pertinently, no objection was raised by the respondent to the petitioner leading evidence with regard to the requirement of his wife, on the ground that the same had not been pleaded in the eviction petition. On the contrary the respondent allowed the said deposition to come on record and even went ahead to cross- examine the petitioner extensively on these aspects. With regard to the requirement set up by the petitioner for his wife the cross- examination of the petitioner, conducted on 09.07.2002, reads as follows: “She was teaching in school in Bombay and was also giving private tuitions. After coming to Delhi, she is not working but giving private tuitions. She is submitting her income-tax returns every year. She is showing her income-from private tuitions in the income-tax returns which she is filing. I have not brought the income-tax returns of my wife but I can produce the same after speaking to the C.A. My flats situated at Bombay, mentioned above are lying vacant.” 14. On 28.8.2002 the petitioner (PW1) was again cross examined on the same aspect and that portion of the cross examination reads as follows:- “It is incorrect that my wife is not taking any private tuitions or that she is not showing the income from tuitions in her income tax returns.” 15. Similarly, with regard to the requirement of one room for the petitioners staff, although not pleaded in the eviction petition, C.R.P. No.833/2003 Page 11 of 31 was spoken about by him in his examination, without any objection or challenge. On this aspect, there was no cross examination at all. 16. The learned ARC rejected the evidence led by the respondent and did not accept the testimony of the respondent’s only witness Roshanlal. Pertinently, the decision of the learned ARC in rejecting the testimony of Shri Roshanlal on the ground that he was incompetent to depose on behalf of the respondent has not been challenged by the respondent in any proceedings and even in these proceedings, no submission was made by learned counsel for the respondent in this regard. 17. The discussion with regard to the bona fide requirement of the petitioner and his family is contained in paras 29 and 30 and the same reads as follows:- “Moreover, as regards the accommodation which is already available with the petitioner, it is not in dispute that during the proceedings of the case, petitioner got possession of the premises which was under his other tenant Smt. Neeru Verma. Pleadings pertaining to her such other tenant has been placed on record and has been proved as Ex.PW1/R-1 and it becomes very obvious that Neeru Verma was in possession of one drawing-cum-dining room, study room/office, three bed rooms with attached bath, kitchen, two verandahs and corridor on the first floor. In such petition against Neeru Verma, petitioner had also claimed that he was in possession of only one small bedroom on the first floor. Since Smt. Neeru Verma has already vacated the portion which was with her, C.R.P. No.833/2003 Page 12 of 31 petitioner is now in occupation of one drawing and dining room, a study room/office and four bedrooms besides other amenities. The size of the family of the petitioner is not big. He is having three daughters and his two daughters are already married and his only one unmarried daughter is residing with him. He can very well reserve one room for himself and for his wife. One room can be kept exclusively for his unmarried daughter; one room for his visitors and one room can be utilized for office work and even then he has one surplus room with him. He can use this room as pooja room if he so desires. Petitioner has also sought one room exclusively for his wife for her office work. However, no such stand has been taken in the petition and, therefore, requirement in this regard is found to be beyond pleadings and, therefore, cannot be considered at all.” 18. Learned counsel for the petitioner submits that the approach of the learned ARC in assessing the bona fide requirement of the petitioner and his family is erroneous and the learned ARC has failed to consider the testimony of the petitioner. He submits that the small room admeasuring 11.5’ x 10’ which was earlier available with the petitioner had to be demolished and the said area merged with the back verandah on account of the fact that on the ground floor his brother had removed the load bearing wall. He refers to his deposition made in this regard which was never challenged by the respondent. 19. He submits that, first and foremost, the learned ARC erred in assuming the availability of four rooms with the petitioner. The petitioner had only three rooms available on the first floor, which had been vacated by Ms. Neeru Verma, apart from one room C.R.P. No.833/2003 Page 13 of 31 designated for office purposes. Learned counsel for the petitioner further submits that his requirements for his own professional office has also not been correctly assessed in the light of the unrebutted evidence led by the petitioner. It had come out in the petitioner’s deposition that he requires one room for his consultancy services and one room for his assisting staff. However the learned ARC has taken into account only one room for office work of the petitioner. He further submits that even though there was no specific pleading in respect of the requirement of one room for the petitioner’s wife to run her tuition classes, or for the petitioner’s staff, the petitioner had led his evidence in this regard without any objection from the respondent and the respondent had availed of ample opportunity to cross examine the petitioner on this aspect. In spite of that being the position, the learned ARC has disregarded the said requirements of the petitioner’s wife on the ground that the said requirement had not been specifically set out in the eviction petition. The requirement of one room for the petitioner’s assisting staff has not been dealt with at all. 20. Learned counsel for the petitioner submits that, on the face of it, there is a calculation error committed by the learned ARC. He submits that the learned ARC has assumed the availability of, inter alia, one study room/office and four bed rooms with the petitioner as aforesaid. In fact there are only three bed rooms, apart from the one room/office. This is because the room in the C.R.P. No.833/2003 Page 14 of 31 back verandah shown as a room admeasuring 11.5’ X 10’ in the plan Exhibit C-1 does not exist as it has had to be merged with the back verandah. One room has been assigned for the petitioner and his wife, one room has been assigned for his then unmarried daughter who was residing with the petitioner, one room has been assigned for visitors and one room has been assigned for office work. The learned ARC held that even then there is one surplus room available with the petitioner which could be used as a puja room. He submits that this is patently wrong, as there are in fact only three bed rooms with one study room/office. As opposed to the availability of the said accommodation, the requirement of the petitioner is at least of one room for himself and his wife, two rooms for his three married daughters with their respective husbands and grand children, two rooms for his office including his staff, one room for his wife’s tuition classes and one room for puja. Therefore the minimum requirement of the petitioner is of seven rooms. As opposed to this the petitioner has three bed rooms with attached bath rooms, and one study/office. 21. Learned counsel for the petitioner also submits that the respondent is holding on to the suit premises merely to harass the petitioner and to extract money from him for vacating the tenanted portion. He submits that the respondents are, in fact, not occupying the suit premises for over a decade. He refers to the photographs filed by the petitioner before the Supreme Court in C.R.P. No.833/2003 Page 15 of 31 SLP(Civil) No. 5694/1998 which show the condition of the Barsati Floor, where two rooms in occupation of the respondent are situated. These photographs have been filed in these proceedings as well. 22. He also refers to the telephone bills in the name of Sh. Roshan Lal, the employee of the respondent, installed at the suit premises which show that no calls have been made from the said telephone connection for a long time. He even relies on the tabulation filed on record with regard to the consumption of electricity in the tenanted premises. The number of units consumed is either zero or only a few units spread over the years. 23. On the other hand, Mr. Girdhar Govind, learned counsel for the respondents submits that the accommodation available with the petitioner is more than sufficient for his needs and the needs of his family. At the time when the amended eviction petition was filed, of the three, one of the daughters of the petitioner was unmarried. Over the years, even she has got married and is not residing with the petitioner. He submits that in these revision proceedings this 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. The order of the Additional Rent Controller has to be tested on the touchstones of “whether it is according to law”. It is only for this purpose that this court may enter into re- C.R.P. No.833/2003 Page 16 of 31 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 on the available material. In support of this proposition Mr. Girdhar Govind relied on the decision of the Supreme Court in AIR 1988 SC 852 Hiralal Kapur Vs. Prabhu Choudhury and AIR 1999 SC 2507 Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta. 24. Having heard the arguments of learned counsel for the parties and having examined the impugned order, the record including the testimony of the petitioner and having examined the case law cited by the respondent, I am of the view that the impugned order passed by the learned ARC is not according to law and the same deserves to be set aside, and an eviction order passed against the respondent. 25. The