Usha Mehra, J.— Dr. Avinash Mithal, respondent/landlord had sought ejectment order against his tenant Dr. Chander Sain Berry, petitioner herein. Dr. Avinash Mithal decided to come back to India from London alongwith his wife and settle permanently in his own house. The petitioner herein sought leave to contest the petition, mainly on the ground that the landlord/owner had no intention to settle in India as he was happily settled in London. He wants to sell the house or give the same to a contractor for reconstruction purposes. He does not want to live here. The fact that he has no intention to live in India can be inferred from the fact that his daughters are not interested to come with him to India. They have permanently been settled in United Kingdom. One daughter is married in England. She is a Doctor. Other two daughters after completing their education have taken up work at England. Hence it is only a wish of the petitioner to come to India in order to get the house vacated. He has put up a make belief desire made with an ulterior motive to get the house vacated and thereafter sell it. By the impugned order, the Additional Rent Controller (in short ARC) did not find any substance in these contentions of the tenant, hence dismissed his application for leave to contest. The learned ARC granted the decree of ejectment. Aggreived by the order whereby his leave to contest application was dismissed the present revision has been preferred.
2. The main thrust of petitioner's argument has been that the respondent wants to sell the demised premises to some developer/builder in order to make profit. He has no intention to settle down in India. Nothing has been brought on record to show that landlord's desire is genuine or that he wants to settle in India. The respondent/landlord admitted that his daughters are permanently settled in United Kingdom. They are not interested to come to India. Landlord has only three daughters. If they remain in England there would be none to look after them in this old age. Moreover, landlord has a placious house of his own in London. This he is still keeping. These factors would show that he has no intention to settle down in India nor his need is bonafide.
3. At the outset, it must be mentioned that so far as ownership of the premises in question is concerned there is no dispute about the same. There is also no dispute with regard to the purpose of letting. Premises was let out for residential purpose only. Relationship of landlord and tenant exists. The only dispute is with regard to bonafide requirement of the respondent. Mr. Ishwar Sahai, Senior Advocate appearing for the petitioner contended that the respondent never required this premises for his occupation. The reason for the same, Mr. Sahai contended rest on the fact that the respondent did not do anything from which it could be inferred that he has a genuine desire to come to India. Mere fact that respondent produced a certificate indicating that he and his wife are suffering from arthrities is not sufficient. Nor it proves that he wants to settle down in India. If his desire had been bonafide and genuine he would have come to India during winters and stayed here to show his genuineness. If he had been really interested to come to India he would have sold his house at London. That would prima facie lend support to his version. But that is precisely not done by the respondent herein. He has not been frequently visiting India nor staying as and when visited India. These facts show that he never had any desire to settle in India. No where in his petition even he pleaded of having come to India and staying here for a longer period either to avoid cold wheather or to make arrangement for the ejectment of the petitioner rather the letter written to petitioner speaks otherwise.
4. I have heard the learned counel for the parties and perused the record. The short point in controversy is whether the desire expressed by the respondent to settle in India is sufficient or does it require any evidence? The mere desire without being substantiated either by oral or documentary evidence cannot be accepted to be genuine on its face. It has to be proved by evidence as to whether landlord has in fact made up his mind to settle in India. In the absence of any document or evidence showing the genuinness of this desire, it cannot be said that the objection of the tenant is without substance. Mere desire is not sufficient nor proves the case of the landlord. In all those cases where the landlord residing out of India decided to come and settle in India, the Courts had the opportunity to go through the evidence and decided their case on merits. It is only after recording evidence findings were rendered. But in this case, except medical certificate there is nothing on record wherefrom the desire could be inferred. The issue raised by the petitioner requires consideration.
5. Mr. Pramod Aggarwal's contentions that the desire of the landlord to settle in India in his old age particularly when he is about 65 years and his wife 61 years cannot be called a sham desire. After all he built the house to settle in it in his old age. Therefore, his desire to settle in his mother land at the fag end of his life should not be called a whimsical desire. The petitioner was Govt. Doctor at London. He has since retired on 16th December, 1995. At this age after retirement he has nobody to fall back upon. Whereas in India he has his sister, other relations and friends residing in the same locality in his neighbourhood. He would have company. Moreover, he and his wife are suffering from Arthrities. It get worst in winter weather. Therefore, certificate issued by Doctors advising them to be out of cold climate should be given due weightage. To support his contention Mr. Aggarwal relied on the decision of this Court in the case of T.D Dhingra… v. Pritam Rai Khanna…., 48 (1992) DLT page 208 where the landlord even after having acquired British citizenship wanted to return to India and settle here. He had not returned that citizenship but wanted the premises for his residence. The objection of the tenant was that the desire of the landlord was not bonafide as he had acquired British citizenship. He was disentitled to eviction. Repelling these arguments this Court opined that even if the landlord had acquired foreign citizenship it would not disentitle him to enjoy his own residence and his own property in India when he chooses to return to India. In that case, evidence by producing passport to show that he had been residing in India clinched the issue. Eviction proceedings in that case were initially instituted in the year 1982. Since 1988 he started staying in India. It was in this backdrop that this Court found that his desire was not a mere wish but he had actually shifted to India, therefore, needed his own house for his residence. This authority, to my mind, is of no help to the respondent at this stage. It may be relevant at the time of deciding the case on merits. In that case the intention was inferred on the basis of evidence which had come on record. On record it was proved that he actually shifted to India. That factor was considered to be sufficient to establish the bonafide need of the landlord. Similarly, reliance placed by the respondent to the decision of Col. Surinder Pal Singh Bhattal (Retd.) v. Rakesh Kumar Jain., (1996) 4 SCC page 275 is of no help to him.
6. Col. Surinder Pal Singh Bhattal (supra) was a case of an armed forces personnel. The leave to defend was rejected by the Court finding that simply because of withdrawal of the suit for specific performance by the persons with whom agreement to sell was entered into was no ground to grant leave to defend. That, however, is not the case in hand. The armed forces personnel fall within the category of specified landlord. Therefore, taking that factor into consideration, the Apex Court decided his case. The facts in the case of Col. Surinder Pal Singh Bhattal (supra) are distinguishable.
7. The respondent landlord has yet to establish that his desire is genuine and he wants to settle in India. This can only be possible alter recording of the evidence.
8. Reliance by the respondent on the case of Mrs. Meenal Eknath Kshirsagar v. M/s Traders & Agencies & anr., JT 1996 (6) SC page 468 is also of no avail on the facts of this case. No doubt landlord is the best Judge of his residential requirements but in the facts of this case, he has yet to prove his genuinness. To my mind, the tenant has raised a triable issue. The same can be determined on merits which, of course, the landlord will establish on the basis of his evidence. At this stage on the basis of the record available it can only be said that a triable issue has been raised, and therefore, leave to defend be granted.
9. In view of the circumstances explained above, the order of the learned ARC thereby rejecting the leave to defend is set aside. Conditional leave is granted to the petitioner only to a limited extent i.e to prove or disprove the intention of the landlord to settle in India.