Sanjay Kishan Kaul, J.:— Respondent No. 1 (original petitioner) filed an eviction petition against the petitioner (tenant) on the ground of bona fide requirement under Section 14(1) (e) read with Section 25B of the Delhi Rent Control Act, 1958 (hereinafter referred to as the said Act) in respect of premises bearing no. A-56, Defence Colony, New Delhi.
2. The premises were let out to the petitioner for the purpose of residence vide lease deed dated 8-12-1980. The purpose of letting was not disputed by the petitioner. Respondent No. 1 claimed to be the co-owner/landlord of the said premises.
3. Respondent no. 1 is a dental surgeon and it was stated that he intended to shift his residence from Punjab (Mukheran distt. Hoshiarpur) to Delhi permanently and for this purpose he was also keeping one room in the said property vacant for his residence. It was also stated that Respondent no. 1 is a visiting surgeon in various hospitals at Delhi and all his near relatives are settled in Delhi.
4. In the replication filed by Respondent no. 1, besides denial of the contents of the written statement, an additional plea was taken that the written statement had not been signed and verified by the authorized person on behalf of the Petitioner and hence, the objections in the written statement were liable to be ignored and the petition allowed. The written statement filed by the Petitioner was signed by Mr. Mohd. Farooq, Managing Director of the Petitioner Company. The learned Additional Rent Controller (hereinafter referred to as ARC), on consideration of the pronouncements of this Court in Raigriha Paper Mills Ltd. v. General Manager Indian Security Press (200) II AD (Delhi) 863, and M/S Nibro Limited…Plaintiff v. National Insurance Co. Ltd.…Defendant AIR (1991) Del 25, the High Court of Punjab and Haryana in Food Corporation of India v. Sardarni Baldev Kaur and Ors. AIR 1981 Punjab and Haryana 113 and the provisions of Order 29 Rule 1 of the Code of Civil Procedure 1908, came to the conclusion that the written Statement is out rightly liable to be rejected on this ground as not signed and verified by a duly authorized person.
5. The learned ARC also found that assuming that the written statement did not suffer from any defects, the petitioner failed to make out any case on merits. The petitioner attempted to challenge the right of ownership of respondent no. 1. The learned ARC found that no such defence had been taken in the written statement and in fact, Mr. Mohd. Farooq, Managing Director of the petitioner company as RW1 had admitted during the course of cross examination that he accepted the petitioner as one of the co-owners and that the rent has been deposited in two accounts one of which was of respondent no. 1 It was admitted that Sh. Kirpa Singh, father of respondent no. 1 was the owner of the premises and after the death of Sh. Kirpa Singh, the property had devolved upon respondent no. 1, Mrs. Satwant Kaur (respondent no. 2), who was the sister of respondent no. 1 and Smt Puna Devi. The property was found to have been mutated in the name of the aforesaid persons vide supplementary lease deed Ex. PW1/3.
6. The petitioner also disputed the bona fide requirement of respondent no. 1. It was contended that the assertion of respondent no. 1 that he wants to settle in Delhi was not supported by any document and is the mere wish and desire of respondent no. 1 much less than a need of the petitioner to shift to Delhi and that no presumption was raised that the premises were genuinely required for use by respondent no. 1. The learned ARC took note of the pleadings and the deposition of respondent no. 1 in which it was stated that respondent no. 1 was practising in Mukheran and was a visiting doctor in Delhi and also attended conferences and presented his lessons in Delhi. The learned ARC found that Respondent no. 1 saying that in Delhi he has a brighter scope for his profession cannot be termed as a mere fanciful desire. It was found that where Respondent no. 1 intended to shift to Delhi for the reasons specified by him, such reasons supported by the verbal testimony of Respondent no 1 had to be accepted on its face value unless proved otherwise to be couched not in good faith but by others fanciful desire. The learned ARC took note of the pronouncement of the Apex Court in Sarla Ahuja v. United India Assurance 1999 (1) All India Rent Control Journal 158 wherein it was observed that when a landlord asserts that he requires the building for his own occupation, the Rent Controller shall not proceed on the presumption that the requirement is not bona fide and when other conditions of the clause are satisfied and the landlord shows a prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of the Landlord is bona fide. The Apex Court also observed that it is often said by the Courts that it is not for the tenant to dictate terms to the Landlord as to how else he can adjust himself without getting possession of the tenanted premises.
7. The ARC found that nothing had been brought on record to show that while seeking the eviction of the Petitioner, Respondent no. 1 had any mala fide or fanciful desire and the demand of Respondent no. 1 lacks an element of truthfulness or the element of need. The learned ARC thus passed an order of eviction on 06-02-2001 in favour of Respondent no. 1. The present petition has been filed by the Petitioner aggrieved by the said order.
8. The submissions of Learned Counsel for the petitioner before this Court are limited to the question of the bona fides of the requirement of Respondent no. 1 as it is not disputed that the purpose of letting is residential, the respondents are owners/landlords and there is no alternative accommodation in Delhi.
9. Learned Counsel for the Petitioner contended that records of the proceedings in the court of the Rent Controller show that apart from bald assertions, Respondent no. 1 has not led any evidence to substantiate what he has pleaded in the eviction petition. Learned Counsel placed reliance on the decision of the Apex Court in Smt. Kamla Soni v. Rup Lal Mehra 1969 RLR 1017 in support of the proposition that a mere assertion that the landlord requires the premises occupied by the tenant for his personal occupation is not decisive. It is for the court to determine the truth of the claim, and also to determine whether the claim is bona fide. In determining whether the claim is bona fide, the court is entitled and indeed bound to consider whether it is reasonable. A claim founded on abnormal predilections of the landlord may not be regarded as bona fide. Learned Counsel referred to the judgment of the Supreme Court in Deena Nath v. Pooran Lal (2001) 5 SCC 705, in support of the proposition that the statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or fanciful desire by him; further such requirement must be bonafide which is intended to avoid a mere whim or desire. The bona fide requirement must be in praesenti and must be manifested in actual need which would evidence the court that it is not a mere fanciful or whimsical desire.
10. Learned Counsel for the petitioner contended that the landlord is required to prove that he in fact bona fide needs the premises for his personal occupation for otherwise the claim of the landlord for eviction is bound to fail if the evidence of bona fide requirement was unreliable or not sufficient to warrant a conclusion that the landlord bona fide needs the premises for his personal occupation or the occupation of a person dependent on him.
11. Learned Counsel for the Petitioner submitted that Para 18 (a) of the eviction petition does not disclose a cause of action as understood in law in the context of the imperatives of Section 14 (1) (e) of the said Act. In this context, learned Counsel relied on a decision of a full bench of this Court in Mohan Lal… v. Tirath Ram Chopra & Another…. Chopra 1982 (2) All India Rent Control Journal 161, wherein it was observed that “the landlord when he initiates proceedings for eviction on the ground of bona fide requirement has to plead and state all the material facts which are required to be stated under clause (e) to the proviso to section 14 (1) or 14 A, as the case may be, which would entitle him to get an order of eviction. Mere reproduction of the words used in the statute is not enough. The petition must disclose a cause of action based on the material facts for, in the event of the leave being refused, the statements made by the landlord in the application for eviction are deemed to be admitted by the tenant. … But as bona fide requirement of the landlord or absence of any other reasonably suitable accommodation has to be inferred from all the facts and circumstances, he must plead all such facts and circumstances in his application. He has to show as to how the need for getting the recovery of possession of the premises exists. In this connection he may have to plead the accommodation available with him, the non-existence of any alternative suitable accommodation, the extent of the members of the family dependent upon him and the extent of the alternative or additional accommodation”.
12. Learned Counsel for the Petitioner submitted that a bare perusal of the eviction petition would show that all the material facts required to be pleaded, upon proof of which alone, the Rent Controller gets jurisdiction to pass Order of eviction against the tenant, are totally absent. In this behalf, learned counsel relied upon the judgment of this Court in N.D Khanna v. Hindustan Industrial Corporation AIR 1981 Delhi 305, wherein it was held that
“10. In view of the various authorities, it seems to me that the facts constituting the cause of action must be pleaded in the plaint and if the same have been included in the replication in reply to the written statement, the same cannot form part of the plaint …….if a plaint does not disclose a cause of action, it is liable to be rejected under order 7 R. 11 of the Code specially when the defendant respondent has taken a specific plea that the plaint does not disclose a cause of action. Thus, I am of the view that when a plaint or eviction application is filed, it is the duty of the Court/Controller to see whether the plaint or the application contains the allegation which must be proved before a decree or an order of eviction can be passed. If the allegations in the plaint or the eviction application are insufficient or the facts constituting the cause of action are not disclosed, the Court or Controller must reject the same.
11. Reading the eviction application specifically the ground of eviction as contained in para 18 of the eviction application reproduced herein above, I am of the considered view that it does not disclose a cause of action. In other words, the petitioner does not plead all the facts constituting the cause of action for claiming eviction on the ground covered by clause (e) of the proviso to sub section (1) of Section 14 of the Act”.
13. Learned Counsel also referred to the judgment of the Apex Court in Adil Jamshed Frenchman (Dead) by LRs. v. Sardar Dastur Schools Trust and Others (2005) 2 SCC 476, to advance the proposition that the question to be asked by a judge of facts by placing himself in the place of the landlord is whether in the given facts proved by the material on record, the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. In T. Sivasubramaniam v. Kasinath Pujari (1999) 7 SCC 275. also it was held that when a landlord desires a premises, the requirement of law is that the landlord must set out his need for the premises in the petition and establish that such need is bona fide. The need must be bona fide, genuine, honest and conceived in good faith. In this case, the court found no material on record to show that the landlord required the premises and that his need was bona fide. The material on record for the eviction of tenants before the Rent Control Authority was the mere desire of the landlord to live separately from his father.
14. in Freddy Fernandes v. P.C Mehra 1973 RCR 53 learned single judge of this court held that the expression bona fide is not to be understood as indefinitely enlarging the choice of the landlord and leaving it to his own subjective discretion. Further whenever the subjective discretion of a person is to be scrutinised by a Court or a tribunal, it necessarily follows that such subjective discretion has to be reasonably exercised. The need of the landlord, even if subjective to the extent of being based on his requirements cannot be limitless and has to be reasonable vis-a-vis the protection afforded to the tenant by the Act against eviction.
15. Learned Counsel for the Petitioner relied on the decision of the Apex Court in Shiv Sarup Gupta v. Mahesh Chand Gupta (1999) 6 SCC 222 to advance the proposition that “the High Court is obliged to test the order of the Rent Controller on the touchstone of whether it is according to law. For that limited purpose, it may enter into reappraisal 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 material available. Ignoring the weight of evidence, proceeding on a wrong premise of law or deriving such conclusion from the established facts as betray a lack of reason and/or objectivity would render the finding of the Controller ‘not according to law’ calling for an interference under the proviso to sub-section (8) of section 25b of the Act.”
16. Learned Counsel for Respondent no. 1 submitted that Respondent no. 1 wants to shift to Delhi as it is a better place than Mukheran for his profession as well as the education of his children and such need cannot be termed as a mere desire or fanciful.
17. Learned Counsel for Respondent no. 1 relies on the judgment of the Apex Court in S. N. Kapoor v. Basant Lal Khatri (2002) 1 SCC 329 to contend that no material has been brought on record and no proof has been made by the tenant by any positive material that the requirement of the landlord is neither genuine or bona fide or reasonable but a mere excuse to get rid of the tenant. Though the choice or proclaimed need cannot be whimsical or merely fanciful, yet a certain amount of discretion has to be allowed in favour of the landlady too and the courts should not impose their own wisdom forcibly upon the landlady to arrange her own affairs, according to their perception carried away by the interest or hardship of the tenant and the inconvenience that may result to him in passing an order of eviction. So far as a claim under Section 14(1)(e) is concerned, the very requirement has to be shown not only to be bona fide but the move of the landlord/landlady to seek eviction of the tenant must be genuine.
18. Learned counsel further refers to the judgment of the supreme Court in Sarla Ahuja v. United India Insurance Company Ltd.. AIR 1999 Supreme Court 100 to advance the proposition that when a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When the other conditions of the clause are satisfied and when the landlord shows a prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by the Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of the bona fides of the requirement of the landlord, it is quire unnecessary to make an endeavour as to how else the landlord could have adjusted himself.
19. Learned Counsel for the petitioner however contends that the case of Sarla Ahuja v. United India Insurance Company Ltd.., supra does not advance the case of Respondent no. 1 in that a presumption of bona fide requirement can be drawn only when other conditions of the clause are satisfied and the landlord has made out a prima facie case. In the present case, besides the mere assertions of Respondent no. 1 there exists no evidence on record to substantiate the claim of bona fide requirement of Respondent no. 1 and the conditions on the fulfilment of which the presumption of bona fide requirement can be lawfully drawn are totally non-existent.
20. Learned Counsel for Respondent no. 1 refers to the judgement of learned single judge of this Court in Arun Ahuja v. SC Mehra (1999) 1 All India Rent Control Journal 360 in support of the proposition that the landlord is the best judge of his requirement and he is entitled to make his decision in this regard.
21. The conspectus of the aforesaid judgments shows that the broad principles have been set down of the requirement of a landlord not being a mere whim or fanciful but that it should be a genuine need of the landlord. It is only then that the requirement can be said to be bona fide within the meaning of under Section 14(1)(e) of the said Act. This would naturally require all the necessary matrix in terms of the factual averments and the evidence to be adduced in that behalf. Simultaneously it has to be kept in mind that the landlord is the best judge of his requirement and a tenant cannot dictate the terms on which the landlord should live. The bona fide requirement of the landlord would also depend on his financial status and his standard of living. The ARC found in favour of the landlord/owner and thus what has to be considered is whether there is any illegality or jurisdictional error in the impugned order and not to sit as an appellate court though the scope of scrutiny in a rent revision would be more than a revision petition under Section 115 of the Code of Civil Procedure, 1908.
22. The respondent no. 1 in the present case is a dental surgeon. He has expressed his desire to shift to Delhi where in any case he keeps on visiting different hospitals. The furtherance of a professional career as a doctor and the need towards that object of staying in Delhi, in my considered view, can hardly be called fanciful. It cannot be expected that a doctor of the standing of respondent no. 1 should first come and stay in the one room available with him to establish that he has an intent to shift to Delhi. The added factor is the periodic visits of respondent no. 1 to Delhi for professional reasons. It can hardly be doubted that the prospects available to respondent no 1 at Delhi are far better than available in a District in Punjab. The oral testimony of respondent no. 1 is clear and thus has been believed by the ARC. The requirement of law is not that every desire of a landlord has to be looked at with suspicion and the matter proved beyond reasonable doubt applying the test of criminal jurisprudence. Respondent no. 1 being a doctor, visiting Delhi periodically for professional reasons and the better prospects available to a doctor in Delhi are all good reasons why the requirement of respondent no. 1 cannot be held to be fanciful and unjustified. No material has been produced to show that the requirement of respondent no. 1 should be looked at with suspicion or that his testimony should be treated as not being truthful.
23. In view of the aforesaid, in my considered view, it cannot be said that the impugned order suffers from any infirmity or erroneous exercise of jurisdiction.
24. It may be noticed that though the ARC has found that the written statement was not signed and verified by an authorised person, the rival contentions of the parties have in fact been examined on merits. It is thus not necessary to further dwell on this issue.
25. The petition is dismissed leaving the parties to bear their own costs.
26. The petitioner is granted one month's time to vacate the tenanted premises.
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