Mrs. Y. Rajeshwari v. Bombay Tyres International Ltd .

P.K Bahri, J.:— This petition has been brought under Section 25-B(8) of the Delhi Rent Control Act against the order dated August 25, 1984, of Smt. Manju Goel, Rent Controller, by which she had dismissed the eviction petition brought by the petitioner on the ground of eviction covered by Clause (e) of Sub-section (1) of Section 14 of the Delhi Rent Control Act (for short ‘the Act’).

2. The Controller has given the findings that the petitioner is proved to be landlady and owner of the premises in question and on merits she held that the letting purpose of the premises in question is not proved to be residential only and that the petitioner, in fact, bonafide does not require the demised premises for occupation for herself or for any family member. She also gave the finding that no family member is financially dependent upon the petitioner. She also held that the petitioner is actuated by avarice as she had been demanding increase of rent from the respondent and had been getting also increase in rent earlier and on her failure to have the rent increased again, she had filed the present petition on the ground of bonafide requirement for residence.

3. The petitioner, who is presently aged about 65 years, is widow since 1970. Her husband was employed as Deputy Director Health Services, Government of India, and she with her husband used to live in the accommodation provided by the Government which was stated to be quite commodious one. The petitioner claims to have purchased the premises in question in the year 1972 after disposing of her small property in Madras and also borrowing some money from the bank against her fixed deposit receipts and also realised the gratuity and provident fund received on death of her husband. M/s. Riviera Apartments had constructed the multistoreyed building containing different flats and the flat in question was purchased by Smt. Saroj Mohini from the builder. As a matter of fact, no sale deed has been executed by the builder in favour of Smt. Saroj Mohini, and only agreement to sell has been executed in her favour and she had also transferred the flat in favour of the petitioner vide agreement, of which copy is Ex. PW4.X2. The possession of the flat has been also given to the petitioner and the said flat stands mutated in the name of the petitioner in the record of the Municipal Corporation and the petitioner has been paying the house-tax also as per letter of the Corporation Ex. AW4.X7. Ex. AW4.D8 is the letter issued by the builder in favour of the petitioner confirming the transfer of the flat from Smt. Saroj Mohini in her favour. It is not necessary that the petitioner should be full owner of the premises in question in order to be covered by the word ‘owner’ appearing in Section 14 (1) (e) of the Act. The finding of the Rent Controller that the petitioner is the owner of the flat in question has not been challenged before the even by the learned counsel for the respondent. I affirm the said finding.

4. As far as the letting purpose of the premises in question is concerned, the premises has been let out to the respondent vide lease deed of which copy is Ex. AW4.X9. It is common case of the parties that the lease deed can be looked into for determining the letting purpose of the demised premises. Counsel for the respondent has also repeatedly referred to the various terms of the said lease deed in support of his contention that there is no particular term in the lease deed which makes it clear that the premises have been let out only for residential purpose. Counsel for the respondent also referred to certain letters of the petitioner Ex. AW4/3 to Ex. AW4/9 in support of his contention that at the relevant time the intention of the parties was to let out the premises for office purpose as well. It is settled law that if there is a written agreement between the parties showing the letting purpose unmistakably, then no other evidence is to be taken into consideration for determining the letting purpose except that if the letting purpose has been changed by any subsequent agreement, then the said agreement would govern the letting purpose. It is also not disputed before me that the property constructed on the plot in question could be used only for residential purpose in accordance with the terms of the lease granted by the President in favour of M/s. Riviera Apartments Pvt. Limited. Now coming to the lease agreement, counsel for the parties have referred to following clauses in support of their respective contentions as to the meaning of those clauses supporting the case of their respective clients:

“3. To pay all or any taxes, levies or charges imposed by the Government or local authority or Municipal Corporation in respect of tenants's trade or profession in or upon the said premises.

6. To abide by bye-laws and regulations of the New Delhi Municipal Committee, L & D.O and D.D.A at present applicable to the demised premises from time to time and to carry out and obey all lawful orders or directions issued by the New Delhi Municipal Committee or other local bodies or Government authorities from time to time.

11. Not to do any act, deed or thing in violation of the term of the builders agreement, rules of the proposed society and in respect of the land on which the Building “DAKSHINESHWAR” has been constructed.

III (2). The tenant may use the premises for residential purposes, and in case the tenant uses the premises for any purpose or purposes other than residential, then all the penalties, taxes, claims, demand of any kind, nature and description made and/or imposed by any authority whether Local, Governmental or otherwise shall be payable by the tenant.”

5. The Controller did not refer to all the clauses of the lease deed and! after referring to only Clauses 6 & III (2) gave the finding that the terms of the lease deed are not clear with regard to the letting purpose. I am afraid that this finding cannot be supported. In order to determine the intention of the parties with regard to the Letting purpose, all the relevant terms of the lease deed should have been considered. The terms enumerated above unmistakably show that the parties were very clear that the tenant should abide by all the terms of the builder's agreement. If that is so, the builder's agreement became part of this lease deed and it is not disputed that under the builder's agreement with the petitioner and the petitioner's predecessor the flat in question could be used only for residential purposes. Clause 6 also makes it clear that the tenant was to abide by the bye-laws and the regulations of D.D.A including. Admittedly, the Delhi Development Authority has leased out the plot to M/s. Riviera Apartments for constructing a residential multi-storeyed building. So, the mere fact that in Clause III (2) the mandatory words have not been used that the tenant shall use the premises only for residential purpose, does not mean that there was any ambiguity with regard to the Letting purpose agreed upon by the parties. The reading of all the clauses together should have led to clear inference that the parties had agreed that the premises in question could be used by the tenant only for residential purposes. Clause III (2) makes the tenant liable for paying penalties etc., if the tenant uses the premises for any purpose other than residential but that does not mean that the landlady had given any permission to the tenant to use the premises for a purpose other than residential. I have no hesitation in coming to the conclusion that the parties had agreed vide this particular lease agreement that the premises in question could be used by the tenant only for residential purposes.

6. Now coming to the contention of the learned counsel for the respondent that by subsequent agreement the letting purpose has changed as the landlady obtained increase in rent on the ground that premises have been used for office purpose as well. Counsel for the petitioner has argued that no-amount of evidence can be led to show any other letting purpose except the written agreement referred to above. There is no merit in this contention because there is no legal bar in parties agreeing to change the letting purpose subsequent to execution of the written lease deed. So, we have to see whether the letting purpose came to be changed or not on account of petitioner getting the increase in rent knowing that the premises are also used as an office. In letter Ex. AW4/9 dated July 1, 1976, the petitioner mentioned that in that area the flats are being used for commercial purpose and the prevalent rent of the commercial flats is Rs. 3-6 annns per square ft. and she wanted the rent of the flat in question to be enhanced and she demanded Rs. 2500/- per month as the rent. She also mentioned that the flat comprises the area 1000 sq. ft. The text letter is dated July 19, 1976, Ex. AW4/8. In this letter also she repeated her request for increase in the rent to Rs. 2500/- per month reiterating that the rate in the said area is Rs. 3-6 annas per sq. ft. and the tenant is anyhow using it as an office. Admittedly, the rent was increased to Rs. 1600/- per month on these requests of the petitioner and she also wrote letter Ex. AW4/3 dated March 23, 1978, expressing gratitude to the tenant for increasing the rent and she also requested that at least the rent be increased to Rs. 2000/- per month. The reference of the petitioner in one of the letters to the factum of tenant using the premises as an office as well has to be construed in the light of other facts. A casual perusal of this admission of the petitioner and later on petitioner obtaining the increase in rent may at a first glance give an impression that in fact the commercial user has been permitted in the premises in question. But if these facts are examined with close scrutiny vis-a-vis actual user of the premises as is evident from the letter of the tenant Ex. AW4.A 1 dated January 8, 1973, issued in response to the notice of the Delhi Development Authority dated December 21, 1972, Ex. RW4/1, the conclusion would have to be different. In this notice the Delhi Development Authority had objected to the use of the premises for commercial purposes. The tenant, however, denied that the premises have been used for commercial purposes rather the plea taken was that the premises had been taken for running a guest house-cum-resident director's personal office with a skeleton staff of a secretary/steno and a care-taker. It was not the case of the tenant that any commercial office was being run in the demised premises.

7. Now coming to the pleadings, the landlady petitioner in the eviction petition clearly mentioned that the premises has been let out for residential purpose only. In the written statement the plea taken was that the premises have been taken for running the office and that the broker who was engaged for getting the premises on rent also had been paid commission charges for procuring the lease of the flat in question for office purpose. It was pleaded that the premises have been used for resident director's office and also as a guest house. The respondent in the written statement itself made reference to the said letter written by the respondent to the Delhi Development Authority. So, the respondent cannot go beyond as to what has been pleaded by it in the letter written to the DDA. It is not the case of the respondent that any incorrect admissions of facts have been mentioned in the aforesaid letter written to the DDA. The learned counsel for the petitioner has rightly argued that the Rent Controller failed to appreciate the ratio laid down by the highest Court in T.S Talwar v. Prem Chandra Sharma, AIR 1984 SC 664, inasmuch as she failed to notice the distinction between a commercial office and a personal office. It is obvious that the case of the tenant was that the premises besides being used as a guest house were being used also as a personal office of the resident director. In the case of V.S Talwar (supra), the question which arose for decision was whether the premises being let out for residence-cum-personal office would cease to be premises let out for residential purpose only. It was held that although ordinarily an office would mean the place where official business is transacted but a personal office in contra-distinction to an office simpliciter of a commercial office would be a place where an outsider would not normally be admitted. In a personal office, normally commercial transactions do not take place and there would not be any flexity of the location of a personal office and the tenant is entitled to use any portion of the premises as a personal office and it was held that letting of the premises for residence-cum-personal office would not make the letting purpose for a purpose other than residential only. It is in context of the actual user of the premises by the tenant for guest house for its employees and resident director's personal office being there that the petitioner sought increase in the rent. It is evident that the petitioner did not press for increase of rent at the prevalent commercial rate. She pitched her demand much below the commercial rate by asking increase of rent at Rs. 2500/- per month while the rate of rent for commercial flat was about Rs. 4200/- per month or so. It is only when the petitioner found that the tenant was using the premises for residential purpose-cum-personal office of the resident director that she asked for increase of rent but at a rate less than the commercial rate. The Rent Controller was thus not right in drawing an inference from the said facts that the petitioner demanded rent at the prevalent commercial rates and got the increase in rent on that demand. In view of the fact that it has been the case of the respondent itself that premises have been used for personal office of the resident director besides being used for guest house of the company, the irresistible conclusion should have been reached that there has been no consent to the petitioner for changing the letting purpose from residential only to something other than residential. The ratio laid down by the Supreme Court in the aforesaid case squarely applied to the facts of the present case.

8. Counsel for the respondent has referred to Kaila Devi… v. Banarasi Das…., 1980 (2) RCJ 139, wherein it has been rightly held that the very first requirement to be satisfied before a landlord can avail of the ground of eviction covered by Clause (e) of Sub-section (1) of Section 14 of the Act is that the premises have been let out for residential purpose and for determining the letting purpose the Controller is to ascertain the purpose for which the premises have been let out by the landlord and not the purpose for which the premises have been used by the tenant. There is no dispute about this proposition of law. What has to be determined in the present case is as to what has been the letting purpose agreed upon between the parties. The document of lease, in my view, clearly showed that the premises have been let out for residential purpose only and the evidence discussed above with regard to reason for grant of increase of rent, in my opinion does not clinch the fact that there has been any agreement of the petitioner for changing the letting purpose from residential to commercial purpose.

9. I may also refer to Mis. Jagatjit Industries Ltd. v. Rajiv Gupta, 1980 (2) RCR 638, wherein it has been laid down that the premises let out to a company for using the same to accommodate its guests does not mean that the premises have been let out for any non-residential purposes. Counsel for the respondent made reference to Munshi Ram Sakhya v. Ram Pershad, 1981 Rajdhani Law Reporter (Note) 20, where it was found that the premises though let out for residential purpose were used incidentally for professional purpose with the consent of the landlord it was held that the premises ceased to be let out for residential purpose only. The facts are not similar to the facts of the present case. As already discussed above, it is not proved that the premises have been used for any commercial office even incidentally by the tenant. Hence, there is no question of letting purpose being changed in the present case. Counsel for the respondent also cited Satish Swarup Gupta v. Vraj Lal Mani Lal & Co., 1981 (1) RCR 310. In the said case only those factors have been highlighted which have to be kept in view to determine the letting purpose if the letting purpose cannot be found from any written document. Such is not the present case. It has been rightly held in M/S. Flowmore Pvt. Ltd., New Delhi… v. Keshav Kumar Swarup…., 1983 (1) RCJ 113 (SN), that where there is a written agreement showing the letting purpose, a reference to situation or locality or how the premises have been built and used is not necessary and in the present case also the letting purpose as has been agreed upon between the parties deductible from the lease deed is residential. So, there does not arise any occasion for making reference to the locality and the other properties in the vicinity to determine the letting purpose. So, I reverse the finding of the Controller in this respect and hold that it was proved that the premises have been let out only for residential purposes.

10. Now coming to the finding of the Controller with regard to bona fide need of the premises by the landlady, the facts which have come on the record are that after the petitioner purchased the flat in question, she along-with her only son lived in the premises. She has one unmarried daughter living in staff quarters of Lady Irwin College where she is employed. That daughter is now aged about 45 years. She has another married daughter living in Bombay. According to the petitioner, she had to let out the flat in question in order to pay off the loans taken from the bank for purchasing the flat and also to meet the expenses of studies of her son. The petitioner herself admitted that the loans which she had taken from the bank had been paid within 2-1/2 years of the letting but her son completed the education somewhere in the year 1977 or so. AW 3, official from the State Bank of India, proved that the loan was sanctioned to the petitioner to the tune of Rs. 41,500/- in January 1972, against some fixed deposit receipts of Rs. 88,000/- standing in the name of the petitioner and the loan was paid back within 2-1/2 years. There is no plea of the petitioner that any other loan was taken for purchasing the flat in question. The unmarried daughter of the petitioner is having a two rooms accommodation and after the premises in question were let out, the petitioner sometime lived with her unmarried daughter in Delhi and sometime with her married daughter at Bombay and sometime with other relations. Her son studied in Delhi University from 1971 to 1975 and resided in a hostel. He took some training in Tata Institute at Bombay and lived in a hostel and in 1977-1978 he worked with A.C.C Limited in Chandigarh and from 1978 onwards he has been working in Delhi and initially he got accommodation in Pomposh and now during the pendency of the proceedings he has shifted to some other accommodation. The petitioner has never lived with her son since her son started working. The case set up in the petition was that the petitioner who in now aged and is suffering from different ailments would like to live in her own flat in question with her son so that her son could look after her. She also pleaded that her daughter was likely to be married and her daughter does not wish her to continue to live with her. In evidence neither the unmarried daughter nor the son were examined as witnesses. In the application seeking early hearing in the revision petition i.e C.M 2675/87, the petitioner has mentioned that the accommodation of two rooms available with her unmarried daughter was not reasonably suitable and the petitioner who is having different ailments would like to live in her own flat and would like to employ a maid servant and she mentioned that her son has been married and has a small child and they are living now in a house at New Rajinder Nagar. It is not disclosed as to how much accommodation is available in the house where the petitioner's son is living. It is not the plea now set up that the petitioner is to live in the flat in question with her son. Unfortunately, the unmarried daughter remains unmarried for all these years and the possibility of her having a marriage at this late stage appears to be remote. In various letters the petitioner has been asking the tenant to increase the rent. In one of the letters dated March 6, 1977, the petitioner threatened that if rent was not increased to Rs. 2100/- per month, the tenant should vacate the premises as the same are needed for occupation as residence for herself. The moment she got increased the rent to Rs. 1600/- per month, she forgot about her need to occupy the premises for her own needs and she went on requesting the tenant to increase the rent further. In the last letter dt. March 23, 1978, Ex. AW 4/3, the petitioner again asked for the increase in rent mentioning that such like flats are fetching more rent per month as rent in Greater Kailash and she wanted the tenant to increase the rent to Rs. 2000/- p.m mentioning that was the only source of income for maintaining herself. The tenant did not agree to increase the rent and thus, this eviction petition was filed on Sept. 6, 1980, setting up the ground of bona fide requirement for residence. The married son and the unmarried daughter are not financially dependent upon the petitioner and they are not even dependent upon the petitioner for their residence. The petitioner of her own choice has been residing with her unmarried daughter when she is in Delhi and with her married daughter when she wants to live in Bombay. The petitioner has not shown to have changed her way of living in any manner. It is possible that the petitioner may be still shifting her residence some to Delhi, sometime to Bombay and sometime living in Delhi with her unmarried daughter and sometime living with her married son. The petitioner has not shown that since writing that letter in 1978 she had acquired any other financial source for meeting her day-to-day needs. She does not claim to be financially dependent upon her married son or unmarried daughter. She need not disclose as to how she was to maintain herself if she was to get the premises in question vacated from the tenant. With this background the Rent Controller was, in my opinion, right in giving the finding that the petitioner does not bona fide require the premises in question for residence and has filed this petition only to put pressure on the tenant to get further increase in the rent. No illegality appears to have been committed by the Controller in giving this finding based on the evidence and facts and circumstances. I affirm that finding and dismiss this civil revision leaving the parties to bear their own costs.