MANMOHAN NATH Vs. SUBHASH CHANDER

JUDGEMENT

(1.) Civil Revision No. 331 of 2001 is directed against the order of the Additional Rent Controller dated 15.1.2001 in E-70/90 whereby the learned Rent Controller has allowed the petition under Section 14(1)(e) of the Delhi Rent Control Act, 1958.

(2.) Brief facts of the case, as have been set down in the judgment under challenge, are that : "petitioners claim themselves to be the owner/landlord of the demised premises comprising of one room, miani above the front corridor, one verandah with two sides open at the back, kitchen, store, bath and WC with a common use of the back courtyard in the suit premises which is under the tenancy of the respondent let out and used for residential purposes. It is the case of the petitioner is that the suit premises is a three storeyed building and the ground floor portion comprises of two rooms let out for commercial purposes to two different tenants plus the tenancy portion with the respondent in a tin shed at the rear of the premises which is in occupation of the petitioners and used as a garage, that the first floor comprises of comprises of one drawing room measuring 12.5' x 17.9' and three bed rooms (12.6' x 11.0'/12.3' x 12.0'/12.3' x 2.9') 1 miani between the ground floor and first floor with entry from the rear stair-case (22.5' x 8' and a height of approx 5.5') with a kitchen, store, bath and WC; that the second floor/barsati floor is comprising of two rooms, kitchen, bathroom and WC is in occupation of the tenant Dr. Virmani since the year 1969. The eviction of the respondent is sought on the ground of petitioner requiring the premises for their bona fide residence and the members of their families dependent upon them. It is stated that the family of petitioner no.1 comprises of his wife and three college going daughters aged 21, 18 and 16 years apart from himself and similarly the family of petitioner No.2. Consists of his wife and two college going daughters aged 18 and 16 years. Besides the above, the petitioners have five sisters, three of which are settled in Delhi and the remaining two are in Bombay and Dehradun. It is averred that they constantly visit the petitioners with their husbands and children and reside with them. It is averred by the petitioners that the petitioner no.1 requires one drawing cum dinning room, one bed room for himself and his wife, two bed rooms for three children and one study room alongwith kitchen bathroom etc. and therefore, on the minimum requires at least five rooms, and in case the petitioner No.1 has at his disposal the four rooms on the first floor and the miani room between the ground floor and the first floor from the rear stair case the requirement of himself and his family would be squarely met. Similarly it is pleaded that petitioner no.2 atleast needs four rooms as drawing-cum-dinning room, the bed rooms, study rooms for his family and in case the petitioner no.2 has at his disposal the ground floor of the premises presently under occupation of the respondent alongwith the barsati floor then the requirement of himself and his family members would be squarely met. It is pleaded that the petitioners are men of means and affluence used to high standard of living and are also Income Tax payees; that the petitioner No.1 was employed as a Senior Observer in the Indian Meteorological Department, New Delhi and was on deputation in Libya during the period 1975 to 1986 as Hydrologist and his monthly salary was around Rs.15,000/-; that his wife was also employed as a teacher in Libya and they came back in June, 1986 to India and petitioner No.1 resigned from the service in 1996 and as regard petitioner no.2 he is employed as a Director with the Burear of Indian Standards, New Delhi on a monthly salary of Rs.7,500/-. It is also pleaded that the accommodation with the petitioner no.1 after his return to India in the year 1986 on the first floor along with petitioner no.2 is extremely small and inadequate and the petitioners and their family members are living in most incongenial and suffocating atmosphere so much as that the scarcity of the space lead to frequent quarrels and rift between the family members (especially the women folk affecting the privacy and good relations). Lastly, it is also pleaded the petitioners does not own any other reasonably suitable residential house in Delhi. Hence this eviction petition. The summons of the petition were served in the prescribed form as per Schedule III of the Act on the respondent who filed an application for leave to contest the matter as per Section 25(B), (4) & (5) of the Act and vide order dated 17.2.1994 the respondent was granted leave to contest the matter. The respondent contested the matter and filed written statement in which inter alia he took the preliminary objections that the petitioners were not the owners and landlord of the demised premises since it was let out by late Shri Raj Suraj Bhan who was survived by his wife and five daughters apart from two petitioners and some time in the year 1982-83 widow of the previous landlord also expired and the present petition is bad for non-joinder of the necessary parties; that the premises was let out for residential-cum-commercial purposes and used as such since the inception of the tenancy; that the petition was made for seeking eviction of partial tenancy; that the petition was made for seeking eviction of partial tenancy and it was averred that the actual tenancy premises consists of one big room, two small rooms, one miani over two small rooms, kitchen, store and bath room and WC with verandah and open courtyard on the ground floor. In the written statement it was also alleged that the petitioner unlawfully encroached upon a portion measuring 10' x 8' at the corner of the open courtyard on the ground floor which was in the tenancy of the respondent. In the preliminary objections taken in the written statement, the respondent also contested the extent of accommodation available with the petitioners and it was alleged that the present petition was malafide to force the respondent to increase the rent to Rs.1,500/- per month and to force him to pay the rupees of Rs.1 lac. Inter alia it was also averred that the petitioner no.2 had taken a House Building Loan from his department which was utilised for construction of a house in Dera Ghasi District Refugee House Building Co-operative Society Ltd., wherein the petitioner No.1 and petitioner no.2 are shown as members of the society and at page 2 with Membership No.F-34 and F-35 and it was also alleged that petitioner no.2 was owning a residential flat in Masjid Moth which is lying vacant. On merits the averments of the petitioners in the petition are vehemently denied. The petitioner filed a replication to the written statement of the respondent and denied the allegations and contentions raised therein and at the same time reiterated and reaffirmed the averments in the petition. Inter alia it was averred that their father Late Ria Suraj Khan was Perpetual lessee in respect of the suit property allotted by the L&DO Office, Govt. of India what on his death, their mother Smt.Dayawati acquired the rights and interests in the suit premises vide Will dated 11.2.1987 and on the death of their mother the petitioners acquired the said rights and interest in the said properties by virtue of Will dated 01.11.1972; it was averred that the said flat was situated on floor without any provision of light and water and there was a constant water problem in the flat since the water pressure is very low and since the wife of the petitioner is also suffering from Arthritis and the said flat is unsuitable for their residence.

(3.) The learned Rent Controller, on the basis of material placed on record and elaborately discussing the same, returned a finding that the respondents herein have proved that they are owners of the demised premises and that the purpose of letting out the premises was for residence and that they now require the same bona fide for personal use and occupation. The learned Rent Controller has also held that the DDA flat at Masjid Moth on the third floor was not suitable accommodation in view of the age and ailments of the respondents.