Sh. Manohar Lal v. Smt. Pushpawati Jain .

P.K Bahri, J.:— All these petitions pertain to rent control proceedings in respect of different tenants of the same building and in all these cases', only ground of bonafide requirement for residence of the landlady and her husband has been set up. It is in the interest of justice that all these petitions are decided by this common judgment because facts in all these cases are similar and question arising on merits are also similar.

2. Property No. 4974, Ward No. XII situated at Mata Mandir, Roshanara Road, Subzi Mdndi, Delhi is located in a plot measuring 122-6″ × 18-8″. In this property rooms have been constructed in a row. “There are common facilities of latrine and bath available to occupants of various rooms in this property. All the tenants in various rooms are very very old tenants and the rooms are just kuchha kothris and the tenants who come from very lower strata of life have been living in these rooms, some since 30 years and other since 40 years or so, and are paying very petty monthly rent.

3. Chander Bhan, tenant, is occupying first one and a half room which abuts on the main road While Manohar Lal is occupying adjacent one and a half room, Ram Pyari is occupying the next room. These rooms are located on one side of the latrines and bathrooms. On the other side of the latrines and bathrooms, first room is occupied by Birbal and next two rooms are occupited again by Birbal and his son Ramesh. Earlier, one Puran Chand was alleged to be tenant of these rooms, but later on Birbal and Ramesh had been accepted as tenant by the landlady. Banarsi Dass, tenant, is occupying the accommodation comprising of two rooms and a store at the extreme end of the property.

4. It appears that by mistake, the map showing the rooms in occupation of Banarsi Dass was filed in eviction case No. 106/81 which was against Ramesh Kumar and his father Birbal and the map which depicted the portion of Ramesh Kumar and Birbal was by mistake filed in Case No. E-104/81 against Banarsi Dass. The office may substitute the plans in the two files.

5. The Additional Controller had consolidated the cases No JE-102, 105 and 106/81 against tenants, Manohar Lal, Birbal & Ramesh and Birbal and proceedings were recorded in case No. E-102/81 and these three cases were decided by the Additional Controller vide his common judgment dated November 11, 1986 and he had passed eviction order against these tenants on the aforesaid ground. The eviction case No. E-103/81 was dismissed by the Additional Controller vide his order dated February 9, 1987 giving the finding that as the eviction orders have been passed in respect of the three tenants, the accommodation, which would become available to the landlady in execution of those eviction orders, would be sufficient and suitable for the residence of the landlady and her husband. Similarly, the eviction case No. 104/81 against Banarsi Dass was also dismissed on the same ground. Apart from the case of Chander Bhan, where a plea has been taken by Chander Bhan that he has been let out the demised premises for composite purposes of residence and business, in all other cases it is not disputed before me that Pushpawati Jain is the landlady/owner of the property in question and premises to all other tenants have been let out for residential purposes only. Eviction pase was also brought against Ram Pyari, tenant, which is stated to have been dismissed on some technical ground and the landlady has not filed any revision petition challenging the said order of dismissal. So, Rain Pyari continues to be a tenant in one room in the said house.

6. The case of the landlady, as set up in all these petitions, in brief, was that she purchased the property in question vide Sale Deed dated September 6, 1963 and she bonafide requires the said property for her own residence and that of her family members dependent upon her and she does not own any other property in her name in Delhi or anywhere in India. She set up the plea that she is, at present, sharing the accommodation in the house of her married daughter at 49-UB, Jawahar Nagar, Delhi and thus she needs the property in question.

7. Giving the history of the family, it was mentioned that earlier the family was residing at Sadar Thana Road in Delhi in a tenanted house and her husband was doing business in Delhi, but for the last some years, they had shifted to Chandigardh. The landlady is stated to have two sons and five daughters. All daughters are married and well settled and out of the two sons, one is married and other son is also grown up and was of marriagable age. It was mentioned that the two sons had joined hands with the father and are carrying on business Chandigarh. It was pleaded that she and her husband have now become old and they want to occupy and spend the evening of their life in the house in question which they had purchased about 17 years ago. It is also stated that all the close relations of the landlady namely her real brothers and brothers-in-law and one real brother-in-law of the landlady are residing in Gur Mandi in Delhi which is in the neighbourhood of the locality when the house in question is situated. She has mentioned in para 19 of the petition that she needs all the six rooms in occupation of different tenants for her own residence and for residence of her family members.

8. The case, set up by the tenants, however, was that the landlady is not residing in Delhi at all and she, her husband and their two sons are residing in Chandigarh comfortably in House No. 3323, Sector 21 D, Chandigarh and sons of the landlady are carrying on business under the name and style of ‘Wool Mandir’, Booth No. 38, Sector 22 D, Chandigarh and have a telephone at their shop and the saidbusiness is joint and is quite flourishing. The elder son of the landlady is married and is having children and there is no ground shown that landlady and her husband would shift to Delhi alone and live in the dilapidated house in question. It was pleaded that normally aged parents would prefer to live with their close family members than to live separately at a far off place like Delhi.

9. It appears that in reply to leave to defend application, the landlady and her husband had come up with a new plea that both of them were having some ailments which required treatment in Delhi and thus, it is necessary for them to live in Delhi. This fact was controverted by the tenants in their written statement pleading that such a plea is an after thought and originally it has not been taken in the eviciton petitions and moreover, this plea is false that neither the landlady nor her husabnd are having any serious physical ailments for which treatment is not available in Chandigarh.

10. Shri Rattan Chand Jain, husband and attorney of the landlady, was examined as sole witness in support of the evicion petitions. He categorically stated that he and his wife did not own any other property in Delhi and they want to come to Delhi and settle in Delhi permanently. He came out with a new plea that in fact he had started business of electronic goods at Delhi at the house of her married daughter and he produced certain certificates Ex.AW 1/3 to AW 1/5 showing payment of some commission regarding the business by certain firm s. I need not dilate on these aspects of the case because counsel for the landlady frankly conceded that there is no sufficient evidence led to show that either the landlady or her husband are carrying on any business in Delhi.

11. Shri Rattan Chand further deposed that earlier he, his wife and their children were living in Delhi and he was carrying on wool business, but he suffered heavy loss and he shifted with his family to Chandigardh for doing some new business and he has taken a house on rent at Chandigarh and is paying Rs. 200/- per mensem rent and that he has started a business at Chandigarh and now the said business had been closed and his two sons are jointly carrying on their business in Chandigarh. He further deposed that in fact whole of his family wants to shift from Chandigarh to Delhi, but again counsel for the landlady frankly conceded that in fact only the landlady and her husband want to shift to Delhi and live in their own house whereas the two sons, the younger son also having been married during the pendency of the case, are having their business in Chandigarh and are settled in Chandigarh and they have no desire to shift to Delhi. Neither of those two sons were examined as a matter of fact to show that they want to wind up their business at Chandigarh and shift to Delhi.

12. In 1981, the landlady was aged about 53 years whereas her husband was aged about 59 years. They have now become very old people during the pendency of these proceedings. The landlady has not appeared in the witness box at all to show any keen desire to live separately from her two married sons and grand children who are comfortably living in Chandigarh. Normally, the Court does not draw any adverse inference against a landlady if the landlady's husband, who is well conversant with the facts, has appeared in the witness box and no prejudice is caused to the tenants for non-production of landlady in witness box. But where facts are peculiar and it becomes necessary to know the state of mind of the landlady, then non-production of such a landlady would definately lead to an adverse inference being drawn against her that in case she had appeared in the witness box, she might not have given a statement that she would like to live away from her married sons and grand children.

13. In Virendra Pal v. Daljit Singh Sandhu 1978 (1) R.C.J 365, it was held that the best person to prove the bona fide requirement of the landlord was the landlord himself and in case he could not appear in Court, he could have got himself examined on commision. In the said case, the landlord was resident of Muktsar where he was carrying on his business. He did not appear in the witness box to depose and disclose his state of mind that he wished to close his business at Muktsar and shift to Delhi. The testimony of his attorney and relation on this aspect of the case was not given any importance by the Court.

14. In Nanalal Goverdhandas & Co. v. Smt. Samratbai Litachand Shah, A.I.R 1981 Bombay 1, it was held by the Court that the bona fide requirement is in the first place a state of mind though it may be something more. It must, therefore, be deposed to by the person who is requiring the premises and if the landlord does not step into the witness box to bring before the Court legal evidence for proving his requirement, then it cannot be said that he reasonably and bonafide requires the premises. The landlord can delegate the authority to conduct a case but he cannot delegate the duty to depose. It this case, the landlady's son, who was duly constituted attorney, had appeared in the witness box in place of the landlady. Still the Court drew adverse inference against the landlady on account of her inability to testify in Court regarding her bona fide requirement of the premises.

15. In Chinta Narayanamma v. Kholli Sahu, A.I.R 1982 Orissa 183, again the Division Bench of the said Court drew adverse inference on failure of the landlady to examine herself as a witness to substantiate her case of bonafide requirement.

16. It is true that there cannot be laid down a broad proposition of law that in every case where ground of bona fide requirement is set up by the landlady or landlord, the failure to appear in witness box by such landlady or landlord should always lead the Court to draw adverse inference. It may be that peculiar facts of a particular case, all the requirements of bonafide requirement are brought on record through the testimony of convincing witnesses and through her close relation like husband or son, in such a case, the Court may not draw adverse inference on failure of the landlord or landlady to appear in the witness box.

17. Such was the case in Khurshid Haider v. Mst. Zubeda Begum. 1979 (1) R.C.J 621. In the said case, the landlady did not appear in the witness box but her witness, who was a constituted attorney, appeared in the witness box and gave out the facts which were not subjected to cross-examinaiton and thus facts clearly established the ground of bona fide requirement and the Court did not draw any adverse inference against the landlady on her failure to appear in the witness box.

18. Similarly, in Uttam Chand Suri v. Smt. Ram Murti Gupta, 1980 (2) R.C.J 411, the landlady, who was a house-wife, had not appeared in the witness box but her husband had appeared as a general attorney and had given all the facts from which the conclusion was reached that ground of bona fide requirement was made out and the Court did not draw adverse inference against the landlady in her inability to appear in the witness box.

19. So, it depends upon facts of each case whether an adverse inference should be or should not be drawn on account of inability of the landlord or landlady to appear in the witness box.

20. The present case presents peculiar facts. The landlady has reached ripe old age and admitteldly is comfortably living with her married sons and grand children at Chandigarh. It is her state of mind which has to be established by leading proper evidence to show that she would like to live away from her married sons and grand children and live alone with her husband at Delhi, It such a case, I think it was incumbent upon the landlady to have appeared in the witness box and made clear her state of mind. As the landlady has not been examined as a witness in the present case, I think an adverse inference must be drawn that in case she had appeared in the witness box, she might not have expressed any desire to live away from her married sons and grand children.

21. It is true that there are some close relations living in Delhi, but the question is of landlady deciding whether to live in Delhi where other close relations are available or to continue to live with her married sons and grand children at Chandigarh. It is not the case set up that landlady was having any differences with her daughters-in-law or sons and in any manner was inconvenienced in living at Chandigarh.

22. It is true that if landlady, who may be an aged one, bona fide desires to live in her own house, then it is not for the Court to give any gratuitous advice that she should continue to live in any other premises with her other relations. That was the ratio laid down by the Supreme Court in the case of Prativa Devi (Smt) v. T.V Krishnan, JT 1987 (1) SC 764. In that case, a landlady aged about 70 years, who had nobody else to took after her, and was living earlier in the house of her friend had filed the petition on the ground of bona fide requirement pleading that in her old age she would like to live in her own house. Her claim was upheld by the Supreme Court. It may be that if the landlady had appeared in witness box and had made her mind clear to the Court that she wanted to live in her own house, may be a dilapidated one, away from her married sons and grand children, the Court may not have been able to negative her claim in such a situation.

23. The counsel for the landlady has cited judgment of this Court in the case of Smt. Darshan Garg… v. Sri Kishan Das…., 1988 (2) R.C.J 398. This judgment is based on its own facts and is of no help in deciding the present case.

24. Similarly, the last case cited by the learned counsel for the respondent i.e Sita Nagpal v. Vinod Kumar Nijhavan, 36 (1988) D.L.T 238 is distinguishable on facts. It is well settled principle of law that the landlady must be having alegal right to occupy some premises before it could be said that landlady has a reasonably suitable alternative accommodation.

25. It is highly improbable that landlady and her husband would like to shift to Delhi and live in this dilapidated house away from their married sons and grand children. So, in view of the above, I hold that the landlady failed to establish that she bona fide requires the property in question for residence of herself and her husband.

26. I hence allow the Civil Revisions No. 955/86, 37/87 and 6/87 and set aside the judgment of the Additional Controller and dismiss the eviction petitions.

27. Civil Revision No. 365/88 and 397/88 are dismiss. Parties are left to bear their own costs throughout.