JUDGMENT
D.K. Jain, J.
(1) The petitioner, M/s. Hindustan Lever Limited, is a tenant and in possession of the premises bearing No.C-108, defense Colony, New Delhi. The respondent, Mr. L.R.Kakkar is the landlord/owner of the said premises, which he had purchased from Lt. Col. A.K. Sachdeva in the year 1974.
(2) The respondent filed a petition on 28 March 1985 under section 14(l)(e) read with section 25B of the Delhi Rent Control Act, 1958 (for short the Act), for eviction of the petitioner from the said premises on the ground of bona fide requirement on the pleas of (i) paucity of existing accommodation and (ii) unsuitability of the existing accommodation. The petition was subsequently amended on 29 May 1985. The pleas raised by the respondent in his amended eviction petition were that he was residing in a tenanted first floor premises at 2/11, West Patel Nagar, New Delhi, comprising of four rooms (including Pooja room), a kitchen and bath which was insufficient for him and his family, which consisted of self, his wife, his 38 years old son, son’s wife, grandson aged 14 years and grand daughter aged 11 years; due to paucity of accommodation his younger son along with his family had shifted to another premises and that he had suffered heart attack about a year go and was advised not to climb the stairs and have a level walk in the morning; his sleep is disturbed due to heavy traffic on the main road of Patel Nagar where he is presently residing and the said accommodation was not suitable for him; the status of his family is sufficiently high and he wants to live in better surroundings.
(3) The eviction petition was resisted by the petitioner, deny ing allegation of bona fide requirement and claiming that the petition was mala fide, filed for ulterior purpose to have it vacated for selling the same with vacant possession to fetch higher value and/or to increase rent. It was also claimed that the premises in question had lesser accommodation than what was available with the respondent in Patel Nagar house and therefore the subject premises would not be sufficient for him and his family. The plea of respondent having suffered heart attack or any such ailment was also denied.
(4) After evidence, the learned Addl. Rent Controller allowed the eviction petition on 12 March 1992, against which the present petition has been filed under section 25B(8) of the Act by the petitioner, assailing the findings of the Addl. Rent Controller as being perverse and erroneous; the order based on surmises, in excess of jurisdiction exercised illegally and with material irregularity.
(5) I have heard learned counsel for the parties and have gone through the record and considered the rival contentions of the parties.
(6) The findings of the Addl. Rent Controller that the premises were let out for residential purpose, the respondent is the owner/landlord of the premises have not been assailed before me, are in order and are confirmed. The only point for determination is whether the respondent bona fide requires his defense Colony house for his and his family’s residence and the alternative accommodation at Patel Nagar is suitable for him or not. Respondent’s plea was that the first floor premises, where he is presently residing are insufficient and are unsuitable in view of the size of his family and the state of his health. The findings of the learned Addl. Rent Controller holding in favor of the respondent have been assailed by the petitioner and on his behalf it has been urged by Mr. Mukul Rohatgi, Senior Advocate, that (i) the learned Addl. Rent Controller has travelled beyond the case set up in the eviction petition (ii) he has totally ignored the ground of insufficiency raised in the petition (iii) he has misapplied the law on the subject, and (iv) his finding of ailment of the respondent is based on conjectures as the same has not been proved by the respondent by producing any expert evidence.
(7) It was maintained that though in the eviction petition, the respondent had taken the plea of insufficiency of accommodation with him, which comprised of four rooms as against the defense Colony accommodation which has two bed rooms, drawing – dining room, kitchen, two bath rooms, a garage and a room over it, shown in the site plan Ex.AW4/ 3, the Addl. Rent Controller had not given a positive finding on the issue but travelled in excess of his jurisdiction in holding that Patel Nagar accommodation with the respondent was not suitable for him.
(8) I do not agree with the contentions raised by Mr. Rohatgi that the Rent Controller has travelled beyond the case pleaded or misapplied the law or that his finding on ailment is conjectural. The arguments of the learned counsel completely overlook the whole case of the respondent and the bona fide requirement of the house. It was two fold (i) that the accommodation presently with him is insufficient and (ii) that it was unsuitable for his residence for health reasons. Both the respondent and his son,AW4 and AW5 respectively, when questioned in cross-examination, did state that the accommodation in that house was more than the defense Colony house. The son, however, added in cross-examination that the accommodation in the said premises will be made more by constructing the upper floors, which factor has been taken into account by the Addl. Rent Controller while returning the finding in favor of the respondent on the insufficiency of accommodation presently with him. Though a landlord placed in similar circumstances, shifting to his own house, will obviously have additional construction made to make himself comfortable in his own house, I am afraid, that not being the case pleaded, strictly speaking, the learned Addl. Rent Controller could not take this factor into consideration and on that basis hold that the accommodation presently with the respondent is insufficient for him.
(9) However, the second ground on the plea of bona fide requirement is non- suitability of the existing Patel Nagar accommodation with him, which has been made out. The respondent’s witness, S.P.Soni, U.D.C. brought AIIMS medical record and stated that as per the record, the respondent was under the treatment of Dr. R.Tandon, Professor and head of the department of Cardiology. Besides, the respondent as AW4 and his son AW5 both swore about the respondent’s treatment at Aiims and proved the medical certificate AW4/5, in support of respondent’s case of his ailment, requirement of the residence on the ground floor and in better surroundings. The respondent stated that he was a heart patient, under the treatment of Dr.Tandon and other doctors and had been advised not to climb the stairs. He further stated that on account of location of the house at Patel Nagar, he was getting lot of disturbances. Similarly, his son, AW5 has stated that the respondent suffered a heart attack in December 1989, was admitted in Escort Heart Institute for heart surgery and was operated upon. He also stated that the doctors had advised him to take rest and not to climb stairs.This finds support from documentAW4/5, a certificate proved to be that of Dr. Tandon. It is, therefore, in evidence that the respondent has been suffering from heart ailment for more than nine years, had suffered heart attack, underwent bypass surgery at Escort Heart Institute and had been advised not to climb stairs. There has been no cross-examination on this aspect, which goes unchallenged. The mere non-examination of Dr. R.Tandon, Professor of Cardiology, who had issued the certificate Ex.AW4/5, would not wash away the aforesaid vital factors. No expert opinion was required on an assertion that a heart patient should avoid, as far as possible, all exertions including climbing of stairs. The finding of ailment of the respondent cannot be said to be conjectural. It is not in dispute that the Patel Nagar house abuts the main road, which is perhaps one of the busiest and congested roads in Delhi with heavy vehicular traffic, noise and smoke, making it unsuitable for a heart patient. On the contrary. defense Colony house is certainly in a much quieter and less polluted area. The fact, thus, remains that the respondent is a heart patient, has undergone surgery and the first floor alternative accommodation on the main road of Patel Nagar with lot of traffic and noise pollution cannot be said to be reasonably suitable accommodation for him.
(10) It is true that a mere wish or desire of a landlord to reside in his own house cannot be the deciding factor and there is no dispute with the ratio decidendi in Ajit Singh vs. Inder Saran and others, 1979(l)R.C.R.602 and Gulabbai vs. Nalin Narsi Vohra and others, 1991 (2) R.C.R.453(S.C.), relied upon on behalf of the petitioner. His desire has to be considered objectively and should not be unreasonable. The question of sufficiency of accommodation and the bona tide need for shifting is inextricably linked with non- availability of suitable alternative accommodation. A proper and just balance has to be struck and a cumulative view has to be taken. If the existing accommodation with the landlord is not suitable for his residence, the extent of existing accommodation with him would not override or nullify his bona fide requirement to shift to his own house, if it is more suitable, considering its localion, nature and peculiar requirement of an owner landlord, which depends on the facts of each case.
(11) As held in Shri Krishna Kumar and another vs. Mrs. Vimla Saigal, 1969 R.C.R. 236, the request of the landlord has to be viewed from a practical point of view, not confined to considerations of extent of accommodation alone and he must be conceded reasonable liberty to select for rational plausible reasons to live in his own house. The question of the landlord owner having other reasonably suitable residential accommodation has similarly to be determined not from the point of view of mere space but on a consideration of all the relevant factors in a given case, including age, general health of the owner landlord and of the members of his family and a host of other relevant considerations which cannot exhaustively be enumerated or specified.
(12) The learned Addl. Rent Controller has found that the existing first floor Patel Nagar accommodation with the respondent is not suitable for him having regard to his age and state of health and defense Colony accommodation is more suitable for him. I am in agreement with him. He has taken a cumulative view of the entire matter. By not deciding the issue of bona fide requirement solely on the extent of the existing accommodation, he cannot be said to have travelled beyond the case set up in the pleadings or misapplied the law. Suitability is not confined to need based on insufficiency of existing accommodation but host of other factors.
(13) The respondent’s plea of bona fide requirement was sought to be assailed by the petitioner in its reply on the ground that the respondent wanted the rent to be increased from Rs.l,000.00 p.m.to Rs.2,000.00 p.m. to which the petitioner did not agree and later learnt through brokers that the respondent was out to sell the house, on which negotiations for sale of the house took place but the parties could not come to an agreement after which the respondent filed the eviction petition. No credible evidence has been producer by the petitioner to support its defense. No broker was produced by the petitioner to support the plea. Petitioner’s employee in occupation of the house in question at the relevant time (when intending purchasers or brokers must have come to see and enquire) was also not produced to support the defense of its learning about the respondent’s intention to sell the house. Instead, the petitioner produced two of its retired employees, namely, Mr. P.N.Mongia, RW1 and Mr. D.N.Mehta, RW2, who generally stated about the demand of higher rent and sale of the property. Rwi, cross-examined, denied the suggestion that there was no talk whatever for increase of rent of sale of the property and further cross- examined stated that the talk for increase in rent took place in July 1975 but did not add that the talks for this purpose took place subsequently also. According to RW2, talks for enhancement of rent took place to wards the close of 1983 and beginning of 1984 but he could not tell the month or date, when and where and in whose presence talks with the respondent took place. Their testimony inspires little confidence. As noticed above, the best available evidence could be brokers from whom the petitioner claims to have learnt about the respondent’s intention to sell the house or the occupant of the house, who in normal course could have known about it, have not been produced. The learned Addl. Rent Controller thus, rightly concluded that the petitioner’s plea set up in resistance to the petition was not correct.
(14) For all these reasons, the order of the learned Addl. Rent Controller is in accordance with law and I see no ground to interfere in the conclusion drawn by him that the premises are required bona fide by the respondent for his and his family’s residence and therefore, he is entitled to an order of eviction.
(15) As a result, this petition fails and is hereby dismissed but without any order as to costs.I would, however, grant two months’ time to the petitioner to vacate the premises.