JUDGMENT
R.C. Chopra, J.
1. This petition under Section 25-B(8) of Delhi Rent
Control Act 1958 (hereinafter referred to as “the Act” only)
assails an order dated 11.9.2001, passed by learned
Additional Rent Controller, Delhi, in Eviction Petition
No. 108/95, passing eviction orders under Section 14(1)(e)
read with Section 25B of the Act in favor of the respondent
and against the petitioner/tenant.
2. I have heard learned Counsel for the petitioner and
learned counsel for the respondent. I have gone through the
records.
3. The petitioner-tenant assails the impugned eviction
order on two grounds. Firstly that the petition was bad for
non-joinder of necessary parties as all the LRs of the
deceased-tenant Paras Ram had not been imp leaded and secondly
that the respondent-landlady had bonafide need in respect
of the premises in question.
4. Learned counsel for the petitioner argues that the
premises in question were let out to deceased Paras Ram and
after his death the tenancy had devolved upon his widow, sons
and daughters but the eviction petition was filed against the
petitioner widow only without impleading the other LRs. He
relies upon a judgment in Mohd. Idress and Anr. v.
Mst. Nathi reported in 90(2001) DLT page 274 to counted that
the eviction petition filed by the petitioner is liable to be
dismissed on this ground alone. He also argues that the
respondent-landlady is permanently settled in U.K. Along with
her sons and daughters and has no intention of coming back to
India. It is submitted that respondent/landlady has no
bonafide need in respect of premises in question for her
residence. It is also pointed out that the first floor and
Barsati floor of the building in question are still in the
possession of the respondent and a sister of the respondent
is living there without payment of rent and as such
alternative accommodation is available to the
respondent-landlady for stay as and when she visits India or
as and when she decides to shift to India. Learned counsel
for the petitioner argues that the Court have to draw a
distinction between s “desire” to occupy the premises and
“requirement” defined under Section 14(1)(e) of the Act.
He relies upon Sri Kempaiah v. Lingaiah and Ors. reported
in VII (2001) SLT 602, Sushila Devi Etc. v. Avinash
Chander reported in 1987 RLR (SC) 137 and Amarjit Singh v.
Smt. Khatoon Quamarain reported in 1987 (1) RCR page 192 SC.
5. Learned counsel for the respondent on the other hand
submits that after the death of the deceased-tenant Paras Ram
his widow was inducted as a tenant in the year 1986 vide rent
agreement Ext. R-1 to which no LR had raised any objection
till the eviction petition was filed. He relies upon Mohd.
Yunus v. Nawabuddin reported in 2000 RLR page 74 to argue
that the objection raised by the petitioner in this regard is
absolutely frivolous. Learned counsel for the
respondent-landlady further submits that the respondent and
two of her sons are very keen to come beck to India in as much
as they are unemployed and are living on unemployment pension
only. It is also argued that the desire of the
respondent-landlady and her family to come back to India is
bonafide and for that reason only they had never let out the
first floor portion of the house in question and had allowed
the sister of the respondent to stay there till they came
back to India from U.K.. It is submitted that a genuine
desire to come back to one’s own country is a bonafide
requirement and as such the learned ARC was fully justified
in passing the impugned order against the petitioner.
Relying upon a judgment of the Supreme Court of India in
Shiv Sarup Gupta v. Mahesh Chand Gupta reported in AIR 1999
SC 2057, Learned counsel for the respondent argues that this
Court should not substitute its own view in place of the view
taken by the learned Rent Controller which was according to
law.
6. Coming to the question as to whether non-impleadment
of the other LRs of the deceased-tenant is fatal or not to
the eviction petition filed by the respondent, this Court is
of the considered view that all the LRs of the
deceased-tenant inherited tenancy rights in the tenanted
premises upon the death of tenant but when one of the LRs was
accepted as a tenant by the landlord within their knowledge
and they raised no objection they are now precluded from
objecting to the creation of tenancy in favor of only one
L.R. The agreement Ex. R-1 between the petitioner and the
respondent clearly shows that after the death of the deceased
Paras RAm fresh tenancy was created in favor of the
petitioner only to which no other LR objected for so many
years and as such this plea has been raised merely with a
view to resist the eviction petition. It can be safely said
that all other LRs of deceased Paras Ram had impliedly
surrendered their tenancy rights and thereafter fresh tenancy
was created in favor of their mother, the petitioner.
Therefore the impugned order does not suffer from any
infirmity on this score. In the case of Mohd. Yunus v.
Nawabuddin (supra) a learned Single Judge of this Court also
took the view that in a case in which after the death of a
tenant one of his LRs attorns in favor of landlord and then
on being sued contends that other legal heirs are necessary
party such a plea cannot be sustained. The judgment in
Mohd. Idress and Ors. v. Mst. Nathi (supra) was on entirely
different facts as tenancy was inherited by all the LRs. and
one of them was not imp leaded. It was not a case of creation
of tenancy in favor of one of the LRs.
7. The plea of the petitioner that the respondent and
her family is settled in U.K. for the last about 35 years
and have become citizens and green card holders and as such
have no intention to shift to India, requires consideration
for the reason that the Courts exercising powers under
Section 14(1)(e) read with Section 25-B of the Act have to
ensure that no unscrupulous landlord is able to evict a
tenant on a false and frivolous plea of bonafide requirement.
However, the Courts also have to ensure that no
landlord/owner is kept deprived of his property. in the hands
of a tenant, inspite of the fact that he bonafide needs the
same for his own residence and the residence of his family
members. The respondent who appears as AW 1 made a
statement on oath that she wanted to shift to India. AW 2
Varinder Kumar Sahdev, son of the respondent-landlady, also
stated that he was unemployed for the last about 10 years and
he Along with his wife were desirous of shifting to India.
According to him his younger brother was also interested in
coming back to India. The respondent-landlady, who is
suffering from various ailments including some problems in
the backbone appears to be keen to come back to India and it
is not un-natural also for the reason that all those who move
out of their own country for the sake of business or career,
at one stage or the other feel like going back to their roots
so that towards the end of their lives they are in their own
country and with their own people. In such cases the desire
to come back to one’s own country gives rise to bonafide need
and cannot be out right rejected as malafide unless there is
some positive evidence to show that the desire is a hoax and
real motive is somethingelse. The respondent and her family,
even if they do not shift to India permanently require the
premises for use and occupation in the course of their visits
and as such the plea of the learned counsel for the
petitioner that the plea of bonafide need as set up by the
respondent should be rejected cannot be sustained.
8. In Sri Kempaiah’s case (supra) the Apex Court while
dealing with a case of eviction on the ground of bonafide
requirement emphasised that a mere wish or desire on the part
of the landlord is distinguishable from “bonafide
requirement” and a duty is cast upon the Court to satisfy
itself in regard to the bonafide of the requirement. The
emphasis in this judgment was that Courts should not be
influenced by mere wish or desire but try to look for
something more to know as to whether the plea of requirement
is bonafide or not. It may be stated that in cases like the
present one requirement is preceded by a wish or desire to
shift to one’s own country and if there is nothing on record
to show that the wish or desire on the part of the owner is
sham or mere pretence to make out a case bonafide
requirement the existence of such wish or desire assists the
Court in ascertaining the bonafide of the plea of
requirement. The plea of the petitioner that the respondent
wants to sell off or let out the premises on a higher rent
after evicting the petitioner cannot be accepted for the
reason that there is no evidence on record to suggest even
that the respondent is going to sell or let out the premises
in question after evicting the petitioner. Moreover such
apprehension can be echoed by every tenant to oppose an
eviction petition, but as rightly observed by learned ARC,
Section 19 of the Act takes care of such apprehensions.
9. A Single Judge of this Court in T.D. Dhingra v.
Pritam Rai Khanna upheld the
claim of bonafide requirement by a landlord-owner who had
acquired British citizenship but was claiming eviction on the
ground of bonafide requirement for his stay in India. In the
present case the respondent-landlady and her two sons have
deposed on oath before the Trial Court that they intend to
return to India. Nothing could be brought out in their cross
examinations to falsify them on this issue. The petitioner
inspite of raising a plea that the respondent intends to sell
the property in question has not produced any evidence to
establish that the respondent has been negotiating with some
one in regard to sale of this property. The fact that the
respondent had never let out the first floor portion and had
kept it with her sister for so many years fully corroborates
her plea that she is not interested in any monetary gain and
she genuinely intends to come back to India with her one or
two sons and stay here. The respondent being an old lady and
suffering from so many ailments and physical problems is
unable to use the first floor portion and as such is in
bonafide need of premises in possession of the petitioner.
In view of the status, life style, habits, six of family of
the respondent and her sons their need for the ground floor
as well as first floor of the building in question for
resindential use is neither unreasonable nor exaggerated.
This Court does not find any good ground for holding that the
plea of bonafide need as raised by the respondent is a
pretence only and the respondent does not require the
premises in question for residential use.
10. It is also well settled that while exercising powers
under Section 25-B(8) of the Act the High Court has to test
the orders of the Rent Controller on the touch- stone of
“whether it is according to law” or not. The High Court must
not substitute its own opinion in place of the view taken by
the Controller unless the view taken by him betrays lack of
reason or objectivity or appears to be so unreasonable that
no prudent man could have taken that view. The impugned
order passed by learned Additional Rent Controller does not
suffer from any illegality, perversity or error of
jurisdiction. The learned ARC had upheld the claim of the
respondent after properly appreciating the evidence on record
and had come to the conclusion that the respondent was in
bonafide need of the premises in question. There are no good
grounds for taking a different view in the matter.
11. In the result it is held that there are no goods
grounds for interfering with the impugned order.
12. The petition stands dismissed.