{"id":115876,"date":"1999-08-11T00:00:00","date_gmt":"1999-08-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/h-c-goenka-and-another-vs-brig-retired-s-p-kochar-on-11-august-1999"},"modified":"2015-07-14T15:27:16","modified_gmt":"2015-07-14T09:57:16","slug":"h-c-goenka-and-another-vs-brig-retired-s-p-kochar-on-11-august-1999","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/h-c-goenka-and-another-vs-brig-retired-s-p-kochar-on-11-august-1999","title":{"rendered":"H.C. Goenka And Another vs Brig. (Retired) S.P. Kochar & … on 11 August, 1999"},"content":{"rendered":"
Delhi High Court<\/div>\n
H.C. Goenka And Another vs Brig. (Retired) S.P. Kochar & … on 11 August, 1999<\/div>\n
Equivalent citations: 1999 VAD Delhi 298, 1999 (51) DRJ 215, ILR 1999 Delhi 241, 1999 RLR 488<\/div>\n
Author: V Jain<\/div>\n
Bench: V Jain<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
Vijender Jain, J.<\/p>\n
1.
\n     The  present  petition for eviction under Section 14(1)(e)  of  the Delhi  Rent Control Act was filed in 1998 by the respondent No. 1 who is  a retired  Brigadier  in relation to premises at C.161, defense  Colony,  New Delhi.  The  present  petitioner No. 1 H.C. Goenka,  petitioner  No.  2-M\/S Unique Exports and Imports Pvt. Ltd. were respondent No. 2 and 3 by  virtue of  the amended petition filed on 6th November, 1992 before the  Additional Rent Controller.\n<\/p>\n
2.   Mr. Verma, learned counsel for the petitioner has contended that  from the  perusal of AW2\/R1 to AW2\/R5 which are the rent receipts it  was  clear that  the property was let out for residential purposes. According  to  the petitioners, as a matter of fact, the aforesaid receipts demonstrated  that the  premises were used regularly and right from the inception  of  tenancy for  commercial  purposes. In support of his contention he has  cited  Smt. A.N. Kapoor Vs. Smt. Pushpa Talwar , Rakesh Kumar Sehgal Vs. Nem  Chand.  1987 (2) All India Rent Control Journal 571,  a  Single  Bench decision of this Court and in his support has also cited Charan Dass Duggal Vs.  Brahma Nand 1982 (1) All India Rent Control Journal 789. Relying  upon
\nthe aforesaid authorities, Mr. Verma has assailed the finding of the  Additional Rent Controller.\n<\/p>\n
3.   Much stress was laid by learned counsel for the petitioners that there was  concealment  of material fact by respondent No. 1 as he has  not  disclosed  in  the eviction petition that there were three rooms and  a  store which  were available to the respondent on the first floor of the  property in  question, which was in possession of respondent No. 1. He  has  further contended  that the respondent No. 1 had also concealed the  material  fact that respondent No. 1 was having another property at Rs. 700, New  Rajinder Nagar. He has contended that the aforesaid concealment of fact by  respondent  No. 1 dis-entitles the respondent No. 1 from seeking any  relief  from this Court. In support of his submission, he has cited Sh. Shambhu Nath Vs. Sh. Surinder Kumar Sharma .\n<\/p>\n
4.   Yet another contention raised by the learned counsel for the petitioner was that Additional Rent Controller has not returned a specific  finding as  to who was the tenant in the property in question and,  therefore,  the impugned  order is bad in law. He has also impugned the order of the  Additional Rent Controller on the ground that the Court was under an obligation to  determine the relationship of landlord and tenant between  the  parties before passing the eviction order. Another contention was raised by counsel for  the  petitioner that the garrage and servant quarters  which  were  in
\npossession  and  occupation of respondent No. 1 were not mentioned  in  the eviction petition.\n<\/p>\n
5.   Another point which was contended before me by the learned counsel for the petitioners was that there was no surrender of the tenancy, as  alleged by  the  petitioners,  and there can not be any implied  surrender  and  in support of his contention has cited Tejinder Tewari Vs. Subhash Lata  Kumar .\n<\/p>\n
6.   On  the other hand, learned counsel appearing for the respondents  has contended that the revisional power of this Court can not be converted into appellate power and the High Court has to examine from the record in  order to  satisfy itself that the decision of the Additional Rent Controller  was according  to  law and has contended that from the documents  and  evidence placed  before  the  Additional Rent Controller, the  Rent  Controller  has arrived at a finding which can not be stated to be contrary to evidence  or based on no evidence and, therefore, this Court will ordinarily not  interfere  with the findings arrived at by the Additional Rent Controller  until and  unless it is shown that the same is wholly perverse and cited  in  his support S. Kumar Vs. Om Kumar Sharma 1980 (I) All India Rent Control  Journal 36. Controverting the argument of learned counsel for the  petitioners, Mr. Nayyar contended that the Site Plan which was filed by respondent No. 1 before  the Additional Rent Controller has correctly stated the  accommodation  available  with the respondent No. 1 and even in his  deposition  the respondent No. 1 had deposed the correct extent of accommodation  available with  respondent No. 1. In support of his contention he relied  upon  Amrit Lal Vs. Jagpal Singh 1996 Rajdhani Law Reporter 392.\n<\/p>\n
7.   Mr.  Nayyar  further contended that premises at  R-700,  New  Rajinder Nagar  was  a  tenanted property and, therefore,  not  mentioning  of  that property in the eviction petition was not fatal as the same was not  available for accommodation to respondent No. 1. Mr. Nayyar has further contended  that respondent No. 1 is 74 years old. He is a retired army  Brigadier.\n<\/p>\n
He  is  a heart patient and he has been advised  against  climbing  stairs. Therefore,  the Additional Rent Controller has rightly passed the  eviction order  against the petitioners. In support of his contention he has  relied upon  Hindustan Lever Vs. L.R. Kakkar 1994 RLR (Note) 17 and 1996  Rajdhani Law Report 125 Dev Raj Bajaj Vs. R.K. Khanna.\n<\/p>\n
8.   Mr. Nayyar has further contended that in view of the findings recorded by  the  Additional  Rent Controller in another eviction  petition  on  the ground  of sub-letting under Section 14(1)(b) of the Delhi  Rent  Control Act that petition has been allowed by the Additional Rent Controller and an eviction order has already been passed, no further finding was required  to be given by the Additional Rent Controller on the question of  relationship of landlord and tenants. On account of the said eviction order being  under challenge in appeal before the Rent Control Tribunal. Therefore, the  Additional  Rent Controller, for the purpose of determining the bona fide  need of  respondent No. 1, has rightly taken into onsideration that  the  petitioners  were tenant in view of the judgment of Additional Rent  Controller in  a petition under Section 14(1)(b) of the Delhi Rent Control  Act  but had  not  given a detailed finding in view of the said  order  being  under challenge before the Rent Control Tribunal.\n<\/p>\n
9.   I  have  given my careful consideration to the arguments  advanced  by learned counsel for both the parties. Let me first deal with the  arguments of learned counsel for the petitioners that there is no finding with regard to the relationship of landlord and tenant by the Additional Rent  Controller.\n<\/p>\n
10.  For  the purpose of proving ownership, witness from L&DO as  AW-1  deposed  before the Additional Rent Controller that property  C-161,  defense Colony stood in the name of Lt. Col. S.P. Kochar. Perpetual Lease Deed duly registered was executed in his favour by President of India on 31st  December,  1968. That witness was not cross-examined. How else the ownership  of
\nthe  premises can be proved if not by the Lease Deed which is  duly  registered  and executed ? If respondent No. 1 is proved to be the owner of  the suit property, nowhere it is the case of the petitioners that  somebodyelse is the owner of the property. Petitioners have been paying rent to respondent  No. 1. Petitioner No. 1-H.C. Goenka and respondent No.  2-P.C.  Goenka are brothers who are respondents 2 and 1 respectively before the Additional Rent  Controller. In the written statement, the petitioners and  respondent No. 2 took the plea that the first floor of the property was in the tenancy of M\/S Assam Carbon Products Limited of which P.C. Goenka was the  Managing Director. It was the case set out by the petitioner that in order to  maintain  cordial relationship, respondent No. 2 agreed to vacate  first  floor and consequently the possession of that portion was given to respondent No. 1 on Ist May, 1983.\n<\/p>\n
11.  It is also a fact that the petitioner No. 1 H.C. Goenka and petitioner No. 2-M\/s Unique Exports and Imports Pvt. Ltd. were allowed to be imp leaded as  party by virtue of their application under Order 1 Rule 10 of  CPC  and they contested the eviction petition. It was in that application that  H.C. Goenka  and petitioner No. 2 themselves claimed to be a tenant in the  suit premises.  Therefore,  there  was a clear finding by  the  Additional  Rent Controller  that there existed a relationship of owner and  tenant  between the parties.\n<\/p>\n
12.  Let me now deal with the argument of learned counsel for the petitioner  that the suit premises were, right from the inception of tenancy,  were used for composite purposes. From the pleading of the parties, fact emerges that  the first floor of the suit property was let out to M\/S Assam  Carbon Products  Ltd.  the Managing Director of which was Mr.  P.C.  Goenka,  real brother of petitioner No. 1. The suit property is situated in a residential area. Exhibits AW2\/R1 to AW2\/R5 itself bears that it was for ‘house  rent’. No  question  was put to respondent No. 1 in the cross examination  on  the purpose  of ‘letting’. No material was brought before the  Additional  Rent Controller as to what office work or job was carried out from the  tenanted premises. In the testimony of P.C. Goenka, who was examined as RW-4, he was absolutely  silent  about the letting purpose of the suit  premises  except that  the  premises was taken for the Company’s guest house. In  the  cross
\nexamination  he admits that he did not know if it was being used for  residential purposes. H.C. Goenka, who was examined as RW-3, stated that  premises  were taken on rent for the purposes of his residence as well  as  for his  personal  office. He has further deposed that the first floor  of  the property  was taken on rent by M\/S Assam Carbon Products Ltd. for the  pur-\n<\/p>\n
pose of residence of the guests of the company. Tenancy at first floor  was surrendered  and only ground floor remained with the petitioner from  1983. Ex.AW2\/R6  is  a  letter written by respondent No. 1 to  respondent  No.  2 whereby he requested the respondent to shift office from the suit  premises as  any  such activity disturbs the sanctity of the house.  Therefore,  the authorities  cited  by  the learned counsel for the  petitioner  that  suit premises  were  used for commercial purposes right from  inception  of  the tenancy to which respondent No. 1 has impliedly consented is of no help  to the  petitioner. Here is a case where the owner has objected to the use  of the  premises for purposes other than residential. The alleged use  of  the premises  for office purposes itself is such that it does not  convert  the premises  into  commercial premises. The dominant use of the  premises  re-mained residential because the petitioners were admittedly residing in  the suit property. The nature of accommodation involved is such that it can not be said to be a commercial premises. The property is located in a  predomi-nantly residential area. Therefore, I am unable to persuade myself that the premises  were being used for commercial purposes with the implied  consent of respondent No. 1 from the inception of the tenancy.\n<\/p>\n
13.  Let me deal with other argument of learned counsel for the  petitioner that non-pleading of accommodation at R-700, New Rajinder Nagar, New  Delhi was fatal and on this ground alone the respondent No. 1 ought to have  been non-suited. Petitioners have not taken this plea in the written  statement. Evidenc  was  completed. The matter was listed before the  Additional  Rent Controller when an application was filed by the petitioners that respondent No.  1  had another property at R-700, New Rajinder Nagar and  he  has  not disclosed  that property even in the eviction petition and so the  eviction
\npetition  should  be dismissed as it amounted to  concealment  of  material fact.  Reply was filed and it was brought to the notice of the  Court  that the  accommodation available at Rajinder Nagar property was neither  alternate  nor suitable accommodation as the same has been occupied  by  tenants and  the  property where no residential accommodation is available  on  the ground of its being occupied by the tenants, non-disclosure of this  accommodation is not fatal that the eviction petition is liable to be dismissed. Section 14(1)(e) of the Delhi Rent Control Act reads as under :\n<\/p>\n
     (e)  that the premises let for residential purposes are  required  bona  fide  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 reasonaly suitable residential accommodation.’<\/p>\n
14.  As  a rule, landlord must plead all the necessary ingredients of  Section 14(1)(e) of the Act. The question, however, to be considered in  the present  case  is that can it be said that the respondent No. 1  had  other reasonably  suitable residential accommodation. Only thereafter the  consequence of failure to disclose the property at Rajinder Nagar is to be seen. When  the property was occupied by tenants, the non-disclosure thereof  can not  be  said to be fatal and failure to do so can not be said to  be  mala fide in the facts and circumstances of this case. Somewhat similar view was taken  by  this court in Rameshwar Sarup Bhatnagar Vs. Ram Narain  Arora  & Another  1995  1 AD (Delhi) 1082. Supreme Court in Mrs. Meenal  Eknath  Vs. Traders & Agencies 1996 R.L.R. (SC) 426 relying upon Prativa Devi Vs.  T.V. Krishnan :\n<\/p>\n
     “As  pointed out by this Court, it is for the landlord to  decide  how  and  in what manner he should live and that he is  the  best   judge of his residential requirement. If the landlord desires  to beneficially  enjoy  his  own property when  the  other  property occupied  by him has a tenant or on any other purpose  is  either insecure or inconvenient, it is not for the courts to dictate him to continue to occupy such premises.”\n<\/p>\n
15.  The  Supreme  Court in Meenal Eknath (supra) did not  agree  with  the finding of Appellate Court as well as of the High Court that the flat  will be  sufficient and suitable for the landlord\/owner. Therefre I do not  find any merit in the contention of learned counsel for the petitioner that  not mentioning  the garrage and servant quarters, the petitioner has  concealed any  material  facts as neither the garrage nor servant quarters  could  be considered as reasonably suitable accommodation for respondent No. 1.  This was  not  the relevant information which was required to be stated  by  respondent  No. 1 for the purposes of filing a petition under Section 14(1)(e) of the Rent Control Act.\n<\/p>\n
16.  Coming  on  the requirement of respondent No. 1,  eviction  order  was passed  in  1997, the respondent was 70 years old. The wife  is  also  old. Respondent  No. 1 deposed that he was suffering from Astro  Arthrities  and also suffered from heart problem for which he was admitted to Escort  Heart Institute.  The  wife  was having breathing problem.  She  was  asthametic. Respondent No. 1 also examined AW-3 who was a doctor. No cross  examination of doctor was done. Therefore, requirement of the landlord-respondent No. 1 can not be stated to be not bona fide. Even the size of the family has  not
\nbeen taken into consideration. The owner who is suffering from heart  problem,  astro arthrities can not be compelled to live on the first  floor  in his old age to facilitate the tenant who is on the ground floor.  Moreover, even  if the size of the family of the respondent No. 1 is taken into  consideration  which consists of respondent No. 1, his wife, one  married  son
\nwho is living with respondent No. 1, his son’s two children aged 6 and  one and  a half year old, one married sister, who also visits  the  respondent, the  need can not be stated to be unreasonable or mala fide. I do  not  see any  force in the argument of learned counsel for the petitioner so  as  to interfer in the reasoned order of the Additional Rent Controller.\n<\/p>\n
17.  The petition is dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court H.C. Goenka And Another vs Brig. (Retired) S.P. Kochar & … on 11 August, 1999 Equivalent citations: 1999 VAD Delhi 298, 1999 (51) DRJ 215, ILR 1999 Delhi 241, 1999 RLR 488 Author: V Jain Bench: V Jain ORDER Vijender Jain, J. 1. The present petition for eviction under Section 14(1)(e) of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-115876","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nH.C. Goenka And Another vs Brig. (Retired) S.P. 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