JUDGMENT
J.B. Goel, J.
(1) This revision petition has been filed by the legal representatives of the deceased tenant Mussadi Lal under Proviso to Section 25-B(8) of the Delhi Rent Control Act, 1958 (for short Act) against the order of eviction dated 5th March, 1987 passed by an Additional Rent Controller, Delhi under Clause (e) of Proviso to Section 14(1) of the said Act i.e. on the ground of “requirement for residence”, in favour of the respondents (hereinafter called the landlords).
(2) Briefly the facts are that the respondents No.l and 2, Raghunath Pershad Nigam and Shri Prem Narain Nigam who are brothers, as owners of property No.905, Gali Inder Wali, Kucha Pati Ram, Bazar Sita Ram, Delhi had filed petition dated 24th September, 1984 seeking eviction of their tenant deceased Mussadi Lal Jain from the premises comprising of one room, one kotha, one dalan besides common latrine and bathroom on the ground floor of the said house for “bonafire personal need” as contemplated under Section 14(l)(e) of the Act, for respondent No.1.
(3) The procedure as provided under Section 25B of the Act was followed. The tenant had made an application seeking leave to defend which was contested by the landlords. Vide an order dated 18th September, 1985 the Additional Rent Controller had held that the application for leave to defend did not disclose any triable issue and the same was dismissed and at the same time it was also held that from the facts alleged in the petition it was not made out that the petitioners bonafire required the premises in dispute and accordingly the petition for eviction was also dismissed. The landlords had filed revision petition against the said order of dismissal of the petition being C.R.965/85. That petition was allowed vide order dated 21st May, 1986 and the order of the Additional Rent Controller was set aside, the case was remanded and the tenant was given leave to defend the petition. While that petition was pending in the High Court the tenant had died and his L.Rs. comprising of his widow, three sons and three daughters were substituted who are petitioners No.l to 6 and respondent No.3 herein. After this remand the L.Rs. of the deceased/tenant had filed written statement 78 dated 30th May, 1986 and contested the claim of the landlords for their eviction on various grounds denying ownership, purpose of letting and bonafires of requirement. The replication was also filed by the landlords denying various objections taken on behalf of the tenants. In support of their case the landlords examined Prem Narain, petitioner No.2 (in the eviction petition) and on behalf of tenants Ashok Kumar Jain, one of the substituted L.R. of the deceased/tenant was examined.
(4) Learned Additional Rent Controller has considered the case under following four heads: -1s1
1.ownership of the property
2.Purpose of letting,
3.bonafire requirement, and
4.Alternate accommodation.
(5) He gave findings on all these four counts in favour of the landlord and passed an order of eviction on 5.3.1987. The L. Rs. of tenant have come in revision under section 25B(8) of the Act.
(6) The petition had earlier come up for hearing on 29.7.1988 before one of us (P.K. Bahri, J) when it was noticed that divergent views had been expressed in some judicial pronouncements about the meaning and scope of the word “himself” vis a vis the need of the landlord for additional accommodation for the need of his near relations including married daughters. In some cases the view taken is that the landlord is not entitled for additional accommodation for married daughter or other guests or relations who off and on visit the landlord and stay with him. As this point arises in a number of cases it was desired by Bahri, J. that this point be decided by a larger bench. Accordingly, this case has come up before us on reference.
(7) The point to be determined thus is, “Whether while assessing the bonafire need of the landlord for additional residential accommodation the need of near relations including married daughters and other guests, who normally come and stay with the landlord off and on can be looked into or not?”
(8) Reliance on behalf of the petitioner -tenant has been placed mainly on two cases (1) Sat Pal Vs. Nand Kishore 1983 Rlr 19 and (2) Shayam Bihari Singh Vs. Smt. Sushila Devi 1982(1) Rcj 355. On the other hand the correctness of the.ratio of these decisions has been challenged on behalf of the respondent/landlord on the ground that the ratio is contrary to the view taken in a number of other cases by various other Benches in the following cases:
(1)S.D.Berry v. Madan Lal Puri 1971 Rcr 887.
(2)Ram Parkash Saroj Vs. Mohinder Singh 1981(l)RCJ 770.
(3)S.Kumar Vs.O.P.Sharma 1980(1)RCJ 36.
(4)Uttam Chand Suri Vs. Ram Murty 1980(2)RCJ 410
(5)Khurshid Haider&0rs. Vs.Zubeda Begum 1979(1) Rcj 621.
(6)Darshan Garg Vs. Sushila Devi 36(1980) Dlt 3.
(7)Dr.B.R.Malhotra Vs.M.R.Kukreja 1988(1) Rcj 220
(8)Federal Motors P. Ltd. Vs. D.N. Dhir
(9)Radhey Lal Vs.Kamla Devi 1987(1) Rcj 383
(10)Shiela Sapra & Anr.Vs.New India Electrical Industrial Co. Pvt. Ltd.
(11)Trilok Chand Vs.Jamna Dass 1986 Rlr 521
(12)Jhallani Tools Pvt. Ltd. Vs. B.K.Sood 1994 Rlr 46., and
(13)Raghubir Singh Vs. Vlrender Kumar 1994 Rlr 183)
(9) The ground for eviction as pleaded in Para 18(a) of the petition for eviction reads as under: “THE premises let out for residential purposes to the respondent are required bonafire by petitioner No. I landlord-owner for occupation as residence for himself and the members of his family and he has no other reasonably suitable residential accommodation. The petitioners are joint owners of the property which they inherited from their late father Shri Ladli Prashad Nigam as his sole heirs. Their father died at Delhi in the year 1941. The petitioner No.l is putting up on the first floor of the same house with just two rooms of ordinary size while he is to share the baths and latrines with other occupants of the building. The petitioners are income- tax payees and considering their social and economic status he is in need of additional accommodation on the ground floor so that the guests calling upon him may be entertained while the relatives who come and visit may be in a position to stay with him.”
(10) This ground falls under “Proviso (e) to Section 14(1) of the Act which reads as under:
“14.Protection of tenant against eviction:- (1) Notwithstanding anything to the contrary contained in any law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant:
PROVIDED that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely-
(A)……..
(B)…….
(C)…….
(D)…….
(E)that the premises let for residential purposes are required bonafire by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation;”
AS the landlord is the owner of the premises the question for consideration is whether the premises are required bonafire by the Landlord for occupation as a residence for “himself”?
(11) The scope and meaning of the word “himself’ occurring in the after said clause (e) has been considered in a series of judgments. In P.D. Sharma Vs. Ram Lubhaya 1970 Rcj 160(Delhi) the word “himself’ has been considered and it has been observed as under: “THE word “himself’ at first sight appears to refer to the Landlord alone. Man is a social being and hardly anyone in the world lives alone by himself. The family of the landlord is, therefo, bound to live with him. It would be reasonable to consider the word “himself’, therefore, to include the family of the landlord also. …………..” In each case it would be a question of fact as to what particular members of the family would be necessarily entitled to live with the landlord so that it could be said that the premises are needed for “himself” and the necessary members of his family.
(12) In this case though the son of landlord who was an earning member and was . not dependent on the landlord, but the landlord was aged 70 years and his wife was aged 65 years, both were not keeping good health and needed the help of their son. In that case it was held that the Landlord’s requirement to accommodate his son and son’s family to help him was the requirement of the landlord for “himself”.
(13) Earlier in Vasudev Vs. Triloki Nath 1967 Plr (Delhi) 260 the same principle has been laid down where it has been held that in considering the question as to whether the landlord required the premises for “himself all the circumstances in which he is placed have to be taken into consideration. State of health of the landlord would be relevant in considering the bonafire requirement of the landlord. If his age is such that he cannot live alone and needs the presence, company and assistance of certain members of his family even if those members are not dependent on him, his requirement would be bonafire.
(14) Again in Sain Dass Berry Vs. M.L.Puri 1971 Rcr 887, P.N. Khanna,J. reiterated his observations in Jai Gopal Vs. Ramesh Lal, Sao 401/1968 decided on Feb. 5, 1970 while interpreting the words “residence for himself” occuring in aforesaid clause (e) where it was laid down that it cannot mean a residence for landlord living in isolation. “Himself” has to be interpreted with reference to a person living with his family with whom he is normally accustomed to live. Merely because the wife of the landlord in a given case is earning her independent living and, therefore, is not dependent on him cannot mean that while considering the needs of the landlord the need of his wife has to be ignored. Likewise the need of the adult independent son who normally is accustomed to live with his father, cannot be ignored when considering the needs of the father. It was reiterated that the words “for himself have to be interpreted to mean for ” himself as living along with his family members, with whom he is normally accustomed to live.” In this case it was further observed that two other sons of the landlord who worked outside Delhi and a married daughter who lived with her husband would also be visiting the landlord off and on, his need of some accommodation to provide temporary shelter to them would be bonafire requirement for himself.
(15) Again in J.L Mehta Vs. Smt. Him Devi 1970 Dlt 484 it has been held that the word “himself’ cannot be restricted to the landlord or landlady alone, as the case may be, as it would be making it completely unworkable if one was to restrict it in grammatical sense. It will have to be seen whether the requirement of the landlord in asking for eviction in claiming the requirement of some other person to live with him is justified by the circumstances so as to be covered by the requirement of the word “himself”. And it was held that the word “himself’ cannot necessarily exclude adult and earning members of the family of the landlord or landlady even if they are independent and able to set up separate residences if they are accustomed to live with the landlord/landlady.
(16) In S. Kumar Vs. Om Parkash 1980(1) RCJ36S. Ranganathan, J.(as his lordship then was), has held that though a married daughter cannot be a member of the Landlord’s family any longer, however, requirement for such married daughter would be taken into account in assessing the requirements of the landlord himself. In Ram Parkash Saroj Vs. Mohinder Singh 1981(1) Rcj 770 Sultan Singh, J. has observed that the word himself includes a person with whom the landlord is normally accustomed to live. Also that the daughter-in-law or the married daughters who visit the landlord have to be provided accommodation by the landlord and for that purpose the landlord was held entitled to one room as guest room.
(17) In Uttam Chand Suri Vs. Ram Murti Gupta 1980(2) Rcj 410, Sultan Singh J. again held that where the married daughters reside in Delhi it must be presumed that the married daughters visit their parents from time to time and stay overnight also. They do not severe connections with the parents and in such case one must take into consideration the habits and social conditions of the Society. The landlord was held entitled to additional accommodation for his daughter who was married in Delhi for her visits to him.
(18) In Khurshid Haider & Ors. Vs. Ms. Zubeda Begum 1979(1) Rcj 621, Avadh Behari, J. held that the two married daughters had not severed connections with their mother and they will come and stay with her and her requirement for the visits of such daughters could not be ignored. In Radhey Lal Vs Kamla Devi & Ors. 1987(1) Rcj 383 N.N. Goswamy, J. has also observed that there can be need of the landlord based upon the visits of his Sons and daughters who were married but do not normally live with him. Following Radhey Lal in Federal Motors Pvt. Ltd. Vs. D.N. Dhir , Mahinder Narain, J. held that the need of the landlord for the married sons and daughters who do not normally live with him but come to visit occasionally would be needing a separate accommodation during their visits would be bonafire need of the landlord.
(19) In Jhallani Tools (P) Ltd. Vs. B.K. Soni 1994 Rajdhani Law Reporter 46, Jaspal Singh, J. has again observed that in the social set up of our society a married daughter continues to enjoy a place of pride in her maternal home and marriage does not severe the ties and requirement of the landlord for additional accommodation for such daughter’s visits cannot be lost sight of. In Raghubir Singh Vs. Virender Kumar 1994 Rlr 183 K.S. Bhatt, J. has also held that married sisters who will be visiting the landlord frequently at least during festivals and vacations and keeping in view the visits of such guests, the requirements of the landlord for additional accommodation has to be taken into consideration.
(20) In Smt. Darshan Garg Vs. Sri Kishan Dass , P.K. Bahri, J. has observed that the word himself occuring in clause (e) would not mean that only the physical need for the residence of the landlord is to be taken note of. After all a human being is not physical being but is also emotional and a social being. It is the emotional needs of the landlord that necessitate the visits of married daughters to bis house often and their stay with their parents quite for some time every year. Keeping in view the habits of our society it cannot be said as a broad proposition of law that need of married daughters can not beat all taken into consideration while assessing the need of the landlord for more accommodation.
(21) In Hargun Dass Vs. Shri Rewa Chand 1986(1) Rcr 147 J.D. Jain, J. has observed that it was common knowledge that in Hindu Society married daughters keep on visiting their father’s house off and on not only on social functions but even otherwise. The cords of affection in the family are not suddenly snapped as a daughter getting married or a son being away from his parents to eke out his livelihood and the need for additional accommodation on that count cannot be said to be unreal or malafide. It was further observed that the resultant hardship to the tenant who faces imminent eviction is not a factor to reckon with the relevant provisions of the Act. Sat Pal’s case was referred to but was not followed.
(22) In Dr. B.R. Malhotra Vs. M.R.Kukreja, (since deceased) through L.Rs. 1988(1)RLR 417 Shyam Bihari Singh Vs. Smt. Sushila Devi 1982(1) Rcj 355 was relied on behalf of tenant wherein it was observed by B.N. Kirpal, J. (as his lordship then was), that the requirement of guest room by the landlady for occasional visitors from outside who do not fall in the category of the family members of the landlady cannot be considered, but was distinguished on facts as the landlady had converted one room into a shop and she was found to be in possession of sufficient accommodation and the Court came to the conclusion that the landlady did not require any additional accommodation. And it was observed that it can not be stated as a broad proposition of law that the requirement of the family guests can not at all be taken notice of while assessing the need of landlord. The need of landlord is to be assessed in the whole perspective, viz., his way of living, his social status and the number of family members living with him and the accommodation available to him. In that perspective the need of the visiting close relations like brothers, sisters, married daughters has to be given due importance. In this case the son of the petitioner was studying in Andhra Pradesh and petitioner’s testimony was that he was visiting Delhi in his vacations three times a year. It was observed that the Rent Controller was wrong in ignoring the need for this son.
(23) In Shiela Sapra & Anr. VS. M/S. New India Electrical Industrial Co. Pvt. Ltd. agreeing with the ratio in the cases of Hargun Dass, Darshan Garg, S.Kumar Vs. Om Parkash, C.M. Nayar J. has observed that “the law is well settled that married daughters alongwith their families often come and stay with their parents for sometime in the year and it cannot be held that the need of such family members can not at all be taken into consideration for assessing the bonafire requirement for the landlord”. And the contrary view taken in Sat Pal’s case which was followed in I.D. Rajput Vs. Ramji Dass 1983 Rcr 531, by Leila Seth, J.(as her lordship then was), has not been followed or was otherwise distinguished observing as under: “THE question of the need for married daughters and their families has been considered by the court in a number of cases. The consensus has been that such need obviously has a bearing as the requirement of the landlord and simply cannot be brushed aside on the ground that they cease to be members of the family. The learned Judges in the case of Sat Pal (Supra) and Shri I.D. Rajput (supra) did not lay down the proposition that at no cost such a need can not be considered to determine the bonafire requirement of the landlord and these cases were decided on their own facts.”
(24) In Kanwal Narain Vs. L.F. Tellis M.L.Jain, J. has observed that the requirement of casual visitors cannot be taken into consideration and the word “himself’ includes only those persons with whom the landlord is normally accustomed to live whether they-be servants or other persons who may be there to look after him. His Lordship further observed that whether the requirement for himself extends to include servants and guests is a question of fact and he would not like to be categorical about it and would like to judge every such allegations on its merits case by case.
(25) On the other hand, in Satpal Vs. Nand Kishore & Anr. T.P.S. Chawla, J.( as his lordship then was), had observed as under:
“NOW,undoubtedly, there are some cases which show that visits by married daughters and guests may be taken into account whilst assessing the needs of the landlord. But, I think, it would be wrong to give too much importance or weight to this factor. After all, it must be remembered, that it is the eviction of a tenant from his established home which is at stake; and he is pushed out into a world where accommodation is very scarce and expensive. One of the main objects of Delhi Rent Control Act is to provide protection to a tenant against eviction. This protection is withdrawn, by the proviso to section 14 of the Act, on limited grounds. One of them is, when the premises are actually ‘required’ by the landlord himself. Obviously, this exception should not be so worked as to defeat the whole purpose of the Act. It must be applied in a broad common sense way, so as to hold the balance: see Mangharam v. B.C. Patel and others . Surely, it would be a total distortion of the law to make an order for recovery of possession against a tenant so that the married daughters and friends of the landlord may be more comfortable during their fleeting visits. And, the tenant is evicted not for the short spell while the visit lasts, but for ever. To my mind, that is no way of holding the balance.”
IN Rattan Lal Vs. Jhandu Ram, 1975 R.L.R. (Note) I, there was a very special consideration. The landlord’s wife was in ill health, and, therefore, his married daughter had frequently to come and stay with them. Hence, some provision had to be made for her. Besides, the other daughter had grown up in the meantime, and her need was a legitimate component of the need of the landlord as she was a member of his family. The judge was careful to rest his decision on the particular ‘cicumstances of the case’. In S.B.Khanna Vs. Trilok Nath, 1980 R.L.R. 187, and Shri Ram Prakash Saroj V. Shri Mohinder Singh, 1981 (1) R.CJ. 770, the visits of a married daughter were taken into consideration alongwith other matters. But those cases do not go into the question as to the weight and importance to be given to such visits. Moreover, the attention of the court was not drawn to Ajit Singh Vs. Inder Saran and others, 1979(1) R.C.R. 602, in which it was said: To allow the owners to evict a tenant of a complete residential unit ……………………..
……………..TO provide for the occasional guests of the owners would be virtually restoring to them the unrestricted rights to move in their own property which is not what is intended by clause (e) of the proviso to section 14 which advisedly entitles the owners to evict the tenant only to the extent of the reasonable need of the owner. I entirely agree with that view. It is only in the most exceptional cases that visits of married daughters or other relations or guests would have any tangible effect on the result 8 of a proceeding for eviction.”
(26) His Lordship has distinguished Rattan Lal Vs. Jhandu Ram for two reasons (1) Because the landlord’s wife was in ill health and, therefore, his married daughter frequently used to come and stay with them and for that reason some provision had to be made to accommodate her. (2) The other daughter had grown up in the meantime and her need also had been treated as a part of the combined need of the landlord as she was a member-of his family. So far as the second ground is concerned there is no dispute that the requirement of the landlord for grown up daughter or for that purpose of any member of his family living with him would be legitimate consideration for additional accommodation as “for his requirement.” But so far as the first ground is concerned we find no reason to distinguish two cases, namely, (1) where the married daughter has to visit her parents voluntarily as a part of normal habit and custom of our society during vacations; or on religious or social functions or just paying visits during illness of her parents or other relations and stay with her parents for smaller or for longer periods and (2) the case where such married daughter has to visit and stay with her parents purposely during their illness and to look after them. In latter case also she may or may not be staying with her parents for a long time
(27) The consideration, in our view, should be whether or not accommodation available With the landlord is sufficient enough to accommodate his married daughters and for that purpose any other of his family members and also other relations living elsewhere who are normally expected to visit and stay with him according to customs and traditions of the society. If accommodation already available with such landlord is insufficient even for temporarily accommodating them, we do not find any reason as to why this should not be a relevant consideration to judge the requirements of the landlord?
(28) It is not always that only married daughters visit the landlord; A landlord may not have a married daughter but at the same time there may be other relations who would be visiting such landlord. As such if the requirement for married daughters or sons and daughters-in-law who may be living outside for various reasons and visit the landlord would be requirement of the landlord, there is no reason why requirement for relations like in-laws of the landlord or other relations who do visit and stay with him should not be given the same treatment.
(29) Again his Lordship has distinguished the cases of S.B. Khanna Vs. Trilok Nath and Shri Ram Parkash Saroj Vs. Mohinder Singh on the ground that “visits of married daughter were taken into consideration alongwith other matters but those cases again do not go into the question as to the weight and importance to be given to such visits”.
(30) In Ram Parkash Saroj’s case the family of the petitioner consisted of himself, his wife, three sons two of whom were married and one married daughter. The eldest son of the petitioner was a Major in the Army and was posted in Laddakh. His wife and children who were residing at Chandigarh wanted to shift to Delhi to reside with the petitioner. His second son was married. He was employed and was living at Nabha with his family and be had stated in the court that he found difficulty to stay with his parents due to accommodation. His third son aged about 25 years was of marriageable age but his marriage was stated to have been postponed on account of shortage of accommodation. The accommodation with the petitioner comprised of three rooms besides Kitchen, bath, and W.C., two Manias over the passage and a garage. The landlord sought eviction from two tenants in occupation of one living room each. The contention of the tenant was that two married sons and the married daughter are not the members of the petitioner’s family and so the requirement of the petitioner for them could not be taken into consideration. This contention was negatived with the following observations: “5.The next argument of the respondent is that the two married sons and the married daughter are not the members of the petitioner’s family. This is incorrect. The Division Bench in Govind Dass & Ors. Vs. Kuldip Singh, has observed that the word ‘dependent’ is not restricted to persons financially dependent but is comprehensive enough to include persons who are dependent on landlord for residential accommodation. Further it has been observed that when a person needs his kith and kin to be near him, and therefore, seeks possession of residential accommodation from a tenant, the requirement can be said to be his own requirement and not only that of his family. Thus it seems that the sons and daughters of the petitioner are included in the word himself when he claims eviction of the tenants from the suit premises for the residence of himself. In Sain Dass Berry Vs. Madan Lal Puri, this Court has observed that “residence for himself cannot mean residence for landlord living in isolation and that the word himself includes a person with whom landlord is normally accustomed to live. In the present case the landlord was accustomed to live with his family and so it seems that when the daughter-in-law or the married daughter visits the petitioner, he has to provide accommodation. In this view of the matter one room must be provided as a Guest Room to the petitioner.”
(31) In this case, if the requirement for the stay or visits of the two married sons and married daughter is excluded from consideration it cannot be said that the accommodation of three rooms already available with the landlord whose family comprised of himself, his wife, and one son, would have been insufficient. In this case the ratio of the judgment, in our view, clearly is that the requirement of the landlord to accommodate married sons and married daughters, may be temporarily during their visits to the landlord, has to be given due consideration and for that purpose it was held that one room must be provided as a guest room to the landlord. In the circumstances, the distinction drawn, with great respect, does not appear to us to be real and justified.
(32) In “S.B.Khanna Vs. Trilok Nath” 1980 Rlr 187 the family of the landlord consisted of himself, his wife, three sons and one daughter, one son was in the Army who often visited him and another son has been transferred from Chandigarh to Delhi, one of the daughters had been married and another daughter had been adopted by his sister and was married. Both the married daughters kept on coming to the landlord. The children were growing and the marriages of the grown up sons were to take place in the near future. The accommodation available with the landlord consisted of two bed rooms, one drawing-cum-dancing room and two closed verandahs. He had sought eviction of the tenant from the premises comprising of one Barsati with temporary kitchen and open bath-cum-latrine on the second floor. It had been contended that the Rent Controller should not have taken into consideration the requirement for the married daughters; one of whom had been given in adoption to his sister. It was held by M.L.Jain, J. that it is not unusual in Hindu family that even children given in adoption too often visit their parents though in law they have severed connections with them. It was also held that the consistent view of this court had been that the landlord is entitled to live in reasonable comfort and the requirements of the married daughters has to be taken into consideration while determining the residential requirement of the landlord. We do not find any special circumstance in this case to distinguish it as done- by his Lordship T.P.S. Chawla, J.
(33) Again his Lordship in Sat Pal’s case appears to have been influenced immensely by the following observations made in Ajit Singh Vs. Inder Saran and another, 1979(1) Rcr 602:- ‘ TO allow the owners to evict a tenant of a complete residential unit ………….. …. ………….to provide for the occasional guests of the owners would be virtually restoring to them the unrestricted rights to move in their own property which is not what is intended by clause (e) to the proviso to Section 14 which advisedly entitles the owners to evict the tenant only to the extent of the reasonable need of the owner.”
(34) These observations, with great respect, cannot be read in isolation out of the context. These have to be read in the light of the facts and circumstances of that case. In that case landlords, one son and his widowed mother who before partition lived in Lahore in 20 rooms mansion had on migration rented premises comprising of a covered area of about 1200 sq. ft. consisting of three bed rooms, drawing room, dining room, a store, a kitchen and toilet in 19-A, Alipur Road, Delhi. In 1957 the landlords purchased property No.l9, Faiz Bazar, Daryaganj, Delhi. Ground floor being in commercial use, partly of landlords and partly occupied by tenants. And first and second floors comprised of 8 residential units, i.e., four units on each floor occupied by 8 tenants. Son got married and had a son in 1964 when the landlords filed eviction proceedings against all the eight tenants on first and 2nd floors. Eviction orders were passed against 4 tenants on first floor, one petition had abated on death of one tenant while 3 oilier petitions were dismissed. In appeal about the extent of accommodation available in this house it has been observed as under: “AS against the drawing-dining, three bed rooms, store, kitchen and a toilet available at present, the four units on the first floor would have given to the owners 4 large drawing rooms, 6 bed rooms, 2 box rooms, 4 bath rooms, 4 W.Cs. 4 kitchen, 2 kitchen stores, and 2 front covered verandahs and 4 open court-yards. From the point of view of the area in the 1st floor, it works out to almost thrice of the total area in their occupation at present while from the point of view of accommodation it would have given to the owners more than double the existing accommodation.” It was in this context that the aforesaid observations relied in Sat Pal’s case, were made and after these observations it was held that, “having regard to all the circumstances, there would be no justification to evict the tenants of the two smaller units of first floor.”
(35) In Ajit Singh’s case the question of hardship to be caused to the tenant on eviction was also repelled as under:- “LASTLY,the plea of eviction was sought to be resisted on the ground that it would cause untold hardship to such of the tenants who would be required to vacate. It is no doubt true that considerable hardship would be caused to the tenants whose eviction is being allowed in that they would be compelled to shift from comfortable apartments in a centrally located area at a nominal rental where they have been living for almost a quarter century. It would be particularly hard on Dr. Sikka, a busy medical practitioner in his early seventies, because of the prospect of being faced with house hunting at this age. It is equally true that it would be impossible to get a similar premises for residence in the vicinity of his clinic or to get any accommodation anywhere in Delhi at the present rental. That the evictees would have to pay rent which will be many times more than the present rent can also not be denied. Unfortunately that is one incident of occupation of a tenanted premises and in granting eviction Court has to strike a reasonable balance between the bonafire needs of the owner and the minimum required protection to the tenants. The Act unfortunately makes no provision for alternative accommodation for the evictees and the hardship that may be caused to them is not a ground to deny to the owners their bonafire of a premises.”
(36) In Sat Pal’s case even otherwise requirement of landlord for accommodation in the facts and circumstances of the case has not been found bonafire.
(37) In Shyam Bihari’s case interalia objection was taken in the High Court that the Rent Controller erred in taking into consideration the requirement of guest room and where it was observed as under:
“THE objection is well founded. Under section 14(1)(e) the bonafire residential requirement is to be proved of a landlord or any member dependent upon him or for any person for whose benefit the premises are held. Apart from the members of the family whose requirements have obviously to be taken into account under section 14(1)(e), the word “himself has also been interpreted to include those persons with whom the landlord is normally accustomed to live. It is for this reason that the requirements of the married daughters have been taken into consideration. It would also be legitimate in this context to take into consideration the requirements of other persons who live with the landlord whether they be servants or other persons who may be there to look after him. The requirement of casual visitors, however, cannot be taken into consideration. It is for the landlady to show and prove her bonafire requirements. She has been able to show that her sons, daughters-in-law and grand children are dependent upon her for accommodation. There is no evidence to show that she has any member of the family who lives outside Delhi and comes to visit her for whose benefits she required the guest room. ……………..
……………..The requirement for occasional visitors from outside who do not fall in the aforesaid categories cannot be recorded as the requirement of the landlady as envisaged by section 14(1)(e)”
(38) In this case also it is conceded that requirement of the married daughters and other persons who are normally accustomed to live with him on their visits is the requirement of the landlord for “himself”.
(39) Sat Pal’s case has been followed by Leila Seth, J.(as her lordship then was), in I.D. Rajput Vs. Ramji Dass . Briefly the facts of that case are that tenancy in this case was created in May, 1970 at the rate of Rs.550.00 per month under section 21 of the Act for 11 months. Tenant was pressurised after three months to increase the rent to Rs.850.00 per month. Thereafter a number of petitions under section 21 of the Act were filed and permission was obtained for creating further tenancy for 11 months every time. In March, 1975 the period of last limited tenancy expired and the tenant was asked to increase the rent or vacate the premises. The rent demanded was between RS.1,000.00 to Rs.1200.00 . Eventually Rs.800.00 per month was fixed w.e.f. November, 1975. thereafter, on 19th January, 1976 an application under section 21 of the Act was presented but was rejected by the Rent Controller. It has been observed that there has been no substantial change in the landlord’s situation since then. His wife had died in the meantime. Three of his sons were married. Only his one son with his wife and two daughters was residing with the landlord. The accommodation with the landlord comprised of four rooms on first floor and a big room on the Barsati floor. On behalf of the landlord one of the contentions was that apart from his use he needs extra accommodation for the visits of his married daughters and his sons settled abroad. In the case the landlord had admitted that he has been comfortable in the existing accommodation prior to 1976. In the facts and circumstances, it was held that the demand for extra accommodation was not reasonable and bonafire. This case also does not lay down that requirement of a room for visiting guests cannot be taken into consideration in any case.
(40) From the cases referred to above the near consensus is that requirement of additional accommodation for married daughters and independent sons and daughters in-law living outside who visit and stay with the landlord off and on would be the requirement of the landlord for “himself and would be a legitimate consideration to judge the requirement of such landlord. We also agree with the proposition and with respect, we do not agree with the contrary view taken in Sat Pal Vs. Nand Kishore and I.D. Rajput Vs. Ramji Dass.
(41) On principle we find no reason as to why the requirement of a landlord who is in possession of accommodation which is insufficient or hardly sufficient for members of his family actually living with him, to accommodate other relations and guests (and obviously mostly guests will also be the relations) who also visit and slay with him off and on, should not be taken into consideration while considering the requirements of the landlord for accommodation. After all human being is a social being and does not live alone or aloof. One visits his relations and his relations visit him and such relations or one or the other relations continually visit each other off and on. Social customs, conventions, habits and usages and practices of the society and similar other considerations cannot be completely ignored as irrelevant while considering the question of the requirement of the landlord. In our view it would not be proper to say that as a broad proposition of law that the requirements of the family guests visiting the landlord off and on cannot at all be taken into consideration while assessing the need of the landlord. The requirement of the landlord for guests and relations who visit and stay with him off and on, in our view, is also entitled to be considered keeping in view the facts and circumstances of each case as has also been observed by M.L. Jain, J. in Kanwal Narain Vs. L.F. Tellis.
(42) Now as per order of reference this case itself has also to be decided by this bench.
(43) In the petition for eviction the landlord sought eviction of the tenant from the premises consisting of one room, one Kotha, one Dalan, common latrine and bath on the ground floor for the requirement of petitioner No.l, i.e., Shri Raghunath Parshad Nigam. The ground of eviction has been pleaded in para 18(a) of the eviction petition which has been reproduced earlier. In reply on the aspect of the need of the petitioner the tenant denied that the premises are bonafire required by the petitioner because his family consists of himself and his wife and that he has ample accommodation; as that the petitioner No. I was in occupation of three rooms on the first floor, one room on the second floor besides a Dalan, and a store on the ground floor under the stairs. It was denied that the petitioners/landlords are Income-tax payees or that there was shortage of accommodation with them according to their status. In the replication it was pleaded that the petitioner No. 1 is in occupation of two rooms measuring 15′ x 8′ and 8′ x 7′ and this accommodation was not sufficient even to keep modern gadgets like refrigerator, Sofa Set, Cooking Range, Cooler etc. and the guests and relations who often come to visit the petitioner No. I cannot be accommodated in this accommodation. It was denied that the petitioner No. I was in occupation of 3 rooms or was in occupation of any Dalan on first floor or a store on the ground floor. It was again asserted that the accommodation was short.
(44) In support of the case of the landlord Prem Narain petitioner No.2 appeared as AW1. He has deposed about the accommodation available with them, their family members and their financial status as under:
1.Accommodation
(45) The petitioner No. 1 is occupying portions mark A, B, C in Ex.AW.1/2. Mark ‘G'(wrongly stated as mark ‘A’) is common, portion ‘E’ on first floor and ‘F’ on 2nd floor are with him (Petitioner No.2). He also stated that petitioner No. I is unable to keep his belongings like Tv, Fridge, Dining Table etc. in the accommodation with him and the accommodation with him is not sufficient.
2.Regarding Families
(46) He has stated that family of petitioner No.l consists of himself and his wife. His own family consists of himself and his wife and two children aged about 10 and 5 years ( on 13.11.86). He also stated that many of the relations of petitioner No.l who reside outside Delhi come and stay with him. There is no place for them to stay with him, their sisters also keep on visiting and his own in-laws also visit him.
3.Regarding Financial Status
(47) He has stated that they are assessed to Income Tax and are carrying on Sanitary Goods business. They also own one property at Sirkiwalan comprising of a shop on ground floor and a room on first floor which are with tenants. In cross-examination he denied the suggestion that portion marked X-3 to X-5 in plan Ex.AW.I/2 are also with them. He stated that portion X- 3 is with Kamal Kishore Saxena whereas X-4 and X-5 are with Mr. S.P. Sharma tenant. He denied the suggestion that they are not doing business in sanitary goods. There is no suggestion that the petitioners are not Income-tax assessees or that they are not doing any business nor it is suggested that their relations do not visit or stay with them. He had stated that the accommodation with them is not sufficient and on this no specific cross-examination was directed. On the other hand, RW.I had deposed:
REGARDING accommodation
(48) Portion X-3 is lying vacant. Petitioner No.1 is in possession of the portion marked A, B, C, and D. Kitchen D is in their joint possession and use; mark ‘G’ is covered verandah used as dining hall jointly by them. Portions X-4 and X-5 and mark ‘F’ and Tin shed ‘H’ are with petitioner No.2 while Tin Shed mark ‘I’ is with petitioner No.1.
REGARDING family and guests
(49) He has stated that he has not seen relations of the petitioner visiting and staying with them, that the No.l does not have Tv Set, Sofa. He has also stated that the petitioner did not require the premises. He has not stated anything about the financial status or family members of the petitioners. In cross-examination it was suggested to him that portion X-1 and X-3 is with J.K. Jain while portion X-4 to X-7 is with Sat Parkash Sharma and portion ‘H’ & I’ are with Kamal Kishore Saxena which he has denied. He has admitted that in-laws of both petitioners belong to Kanpur, but denied that they visit the petitioners.
REGARDING Financial Status
(50) He has stated that he did not know what business the petitioners deal with or that they had a big business of sanitary goods in Chawri Bazar or they are assessed to Income Tax.
(51) The learned Additional Rent Controller on evaluation of the evidence has come to the conclusions as under: “TO my mind also the respondent had failed to prove that petitioner is having sufficient accommodation. Even as per his own statement he has slated that petitioner No.l is having only portion A, B, and C on the first floor in addition to the portion mark ‘I’ on the second floor. Out of portion Abc, I find that portion B and C are not habitable rooms since they are not fit to be lived in as per municipal bye-laws and portion ‘I’ is having a tin shed which can also not be used as a living room. So I hold that petitioner No.l is not having sufficient accommodation and he does require the premises for his guest and relations.”
(52) Earlier it was also held that portion ‘G’ is covered verandah without door and is used as a common passage to approach the other portions on the first floor and as such it cannot be used as a dining room or drawing room. He has also found that petitioner is well established in business and is an income tax assessee, has to maintain his social status and the accommodation is not sufficient for a person of the status of the petitioner No.l because he is expected to receive his relations and guests and sisters as in a Hindu Society it is very common that sisters and relations can often visit each other on social functions and even otherwise also the petitioner No.l has to face shortage of accommodation whenever there is guest.
(53) To our mind the findings are that the accommodation available with the landlord No.l comprises of a room mark A (15’6″ x 8′); Store mark B(6’10″x7’5″) and another store mark C (8’x7′), he has a family consisting of himself and his wife, his in laws who live at Kanpur, his sister and other relations visit him, petitioners are having well established business and are income tax assessees and persons of means and the accommodation available with the Petitioner No.l is not sufficient. It is also not disputed that the tenancy in this case was created more than 50 years ago and the rent of the premises is Rs.ll.80 P. per month as pleaded in the petition. These findings of the learned Additional Rent Controller are not being disputed nor challenged and we do not find any infirmities in these findings.
(54) This shows that the petitioner No.l landlord is in occupation of only one living room besides two stores. The petitioner is an income tax payee and his relations visit him off and on. His relations who visit include his in-laws living at Kanpur. Obviously, he has no place to accommodate such relations who visit and may be staying with him. He even is not having any drawing room or Baithak even to entertain casual visitors. In the circumstances, in our view, no fault can be found with the finding of the learned Rent Controller about the bonafires of the requirements of the petitioner for additional accommodation.
(55) While these proceedings were pending in this Court the appellant tenants have very belatedly filed an application being C.M.No-3471/95 under Order 7 rule 7 and Order 6 rule 17 read with section 151 Civil Procedure Code pointing out certain new facts and claiming read judication of the petition on those grounds or for amendment of the written statement. The facts pleaded are that the landlord owned Property No.2886 Sirkiwalan, First and Second floor of that property were earlier in occupation of a tenant named Parmanand for his residential use and after his death his widow occupied the said premises. The said widow had vacated the premises in 1992 and thereafter the respondent, i.e., the landlord had let out that property again to a new tenant in July, 1992 at a monthly rent of Rs.2,000.00 for commercial use and in view of this additional accommodation being available but not occupied the requirement ceased to exist and is not bonafire. This allegation is being contested as grossly malafide to delay these proceedings and it is stated that the present tenants are not living in the premises but have converted the premises into commercial premises and want to perpetuate their possession inspite of order of eviction. Regarding their acquiring premises in after said property at Sirkiwalan it is pleaded that the entire property in Sirkiwalan is commercial property and the Sirkiwalan area is purely a commercial area and that property is in occupation of tenant who is using the same as an office, that property is constructed on an area of 24.8 sq. yds. and each floor comprises of a room and a toilet and due to heavy traffic that area is not suitable for residential purposes.
(56) Obviously the landlord was not inclined to shift to the premises situated at which was vacated by the tenant on the ground that the premises is situated in a congested commercial area and is not suitable to him and so has been let out for commercial purpose. Where two premises are available to a landlord the landlord normally will be entitled and justified in selecting either of them as may be suitable to him and neither the tenant nor the Court would be justified in imposing on the landlord to shift in a particular accommodation, so long as his selection is not unreasonable or is malafide. In the present case the two brothers have been living in the same property since their birth for over 60 years and as such the preference of the landlord to live in this very house cannot be said to be unreasonable or unjustified. Simply because the other property has been let out at higher rent also would not justify the inference that the requirement is not bonafire or has ceased to exist. In the circumstances, this contention of the tenant in our view has no merits.
(57) It was also contended on behalf of the tenant that there was another tenant on the first floor where the landlord is living and those premises were more suitable and convenient and eviction ought to have been sought of S.P. Sharma living on first floor. Again, it is for the landlord to decide which premises he wants to occupy and he can sue any of his tenants for recovery of the possession of the premises which is more suitable to him. It appears that the other tenant on first floor is occupying 3/4 rooms whereas the landlord has sought eviction in respect of one room and it cannot be said that requirement of premises on ground floor is not bonafire for this reason.
(58) It is also contended on behalf of the petitioner that the landlord who needed accommodation had not entered the witness box and as such it cannot be said that he required the premises bonafire for his needs. Learned counsel for the landlord on the other hand has disputed this contention and has contended that the original petitioners are two brothers who are owners of the property and they are living in the same property and the petitioner No.2 has appeared in the witness box and deposed about the facts and circumstances and it is not necessary that the petitioner No.l should have also entered the witness box.
(59) In Uma Rani Vs. V.K. Dubey similar objection has been taken and it was observed as under:- “WHETHER the premises are required bonafire or not cannot be wholly left to the subjective satisfaction of the landlord. It is to be seen objectively by the Court on the evidence produced before it as to whether the landlord bonafire requires the accommodation in the occupation of the tenants or not. There is nothing in the Rent Control Act which suggests that the landlord must step into the witness box. It is open to the landlord to lead any evidence which he chooses in order to substantiate his averments that he bonafire requires the premises for his own residence. A similar objection of the landlord not appearing in the witness box was also taken before this Court in Khurshid Haider & Ors. Vs. Mst. Zubeda Begum 15(1979) Dlt (SN)233 but without success. In my view, therefore, if the admitted facts on the record show that the need of the landlord was bonafire then she would be entitled to order of eviction even if she has not appeared in the witness box.”
(60) This has been followed in Vldya Prakash Vs. Khushi Ram, 1991(2)Rent Control Reporter 106 where it has been observed as under: "IT is well settled that the -court has to do objective assessment of the evidence to determine whether the landlord bonafire requires the accommodation in the occupation of the tenant or- not, even if the landlord does not choose to examine himself." (61) A similar objection was negatived in Uttam Chand Suri Vs. Smt. Ram Morti Gupta 1980(2)RCJ 410. Again in 0m Parkash Vs. Vaid Shyam Sunder 1992(1)RCJ26 where also similar objection was rejected as under:- Thahriani
the learned counsel for the appellant that the appellant (sic for respondent) has not appeared as his own witness in support of his case which involves a substantial question of law does not help the appellant in the present circumstances of the case. It was not essential for the landlord to appear in the witness box when all the necessary facts have come on record. There is sufficient evidence on the record for proper adjudication of the case and that non- examining the petitioner as his own witness is not sufficient to non suit him on that ground. No substantial question of law is involved in it.”
(62) In the present case the petitioners are brothers and are the co-owners of the property. Both of them have been living in the same house. Though the eviction is sought for the requirements of petitioner No. I who has not appeared but petitioner No.2 has appeared and has deposed about relevant facts and circumstances of the case. In the facts and circumstances it cannot be said that there is any thing special which would have been in the special knowledge of the petitioner No.l which he alone could have deposed. He would not have added any additional facts to the facts already brought on record. In the circumstances, non-examination of the petitioner No.1 is of no consequence as the bonafire requirement of the petitioner has been considered taking into consideration the facts and circumstances of the case available on record. This contention thus has no force.
(63) In view of the above discussion we do not find any merit in this Revision Petition and the same is hereby dismissed. The reference is answered accordingly.
(64) The petitioners-tenants are allowed three months time from today to vacate the premises subject to the condition that they shall pay all the arrears of the rent that may be due to the landlord for use and occupation, within one month from today and shall continue to pay for subsequent three months by the 10th of each succeeding month in the meantime. In the circumstances of the case the parties are left to bear their own costs.