{"id":188373,"date":"1998-11-01T00:00:00","date_gmt":"1998-10-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/suraj-prakash-vs-sri-gopal-on-1-november-1998"},"modified":"2017-06-11T17:28:11","modified_gmt":"2017-06-11T11:58:11","slug":"suraj-prakash-vs-sri-gopal-on-1-november-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/suraj-prakash-vs-sri-gopal-on-1-november-1998","title":{"rendered":"Suraj Prakash vs Sri Gopal on 1 November, 1998"},"content":{"rendered":"
Delhi High Court<\/div>\n
Suraj Prakash vs Sri Gopal on 1 November, 1998<\/div>\n
Equivalent citations: 75 (1998) DLT 579<\/div>\n
Author: M Sarin<\/div>\n
Bench: M Sarin<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
Manmohan Sarin, J.<\/p>\n
1.      This  revision  petition  has been filed  by  the  petitioner\/landlord against  the judgement dated 06.05.1995, passed by the  learned  Additional Rent  Controller, dismissing the eviction petition filed on the  ground  of bonafide  requirement of the tenanted premises. The eviction  petition  was filed by the petitioner on 11.2.1985. The tenanted premises in question are a room on the ground floor of house No.112-A, Kamla Nagar, Delhi.\n<\/p>\n
2.   Petitioner’s family, admittedly, comprises the petitioner himself  and his  wife; two married sons, viz. Rajesh Kumar and Mukesh Kumar, and  their wives  and children; three married daughters; and an unmarried  son.  Petitioner claims that accommodation available to him at the time of the filing of the petition was one room, a kitchen and a store on the ground floor  of House  No.112-A, Kamla Nagar, Delhi, as shown in green in the plan  annexed to the eviction petition. Petitioner admits that another room, kitchen  and
\na  store on the first floor, marked ‘ABCD’in Exhibit A\/2, has been  vacated by  another tenant during the pendency of the petition and is available  to the petitioner. Petitioner claims the total accommodation now available  is still insufficient.\n<\/p>\n
3.   Respondent\/tenant  had sought leave to defend the petition  which  was granted.  Parties went to trial. Evidence was led by both the parties,  who examined  themselves and their witnesses. The respondent\/tenant  had  questioned the ownership, the letting purpose as well as the bonafide need.\n<\/p>\n
4.   The learned Additional Rent Controller by the impugned judgement  held that  the petitioner had duly proved the ownership as well as  the  letting purpose  being residential. The plea regarding the petition being for  partial  eviction was also not accepted. The learned Additional Rent  Controller,  however, reached the conclusion that the premises were  not  bonafide required  by the petitioner for the residence of family  members  dependent upon  him. He held that petitioner had sufficient and  reasonably  suitable accommodation  available to him within the house. The extent  of  available
\naccommodation is, thus, the bone of contention between the parties.\n<\/p>\n
5.   It is pertinent to mention that petitioner had also filed an  eviction petition on the ground of bonafide need against another tenant, viz. Sushil Kumar,  who  was  in occupation of the room, kitchen and  the  garage  with bathroom and W\/C. The said eviction petition, viz. E.87\/90, was allowed  by the learned Rent Controller vide order dated 14.10.1996. The said order  of eviction  was challenged by way of Civil Revision Petition  No.191\/97.  The said revision petition was disposed of vide order dated 15.5.1998,  whereby
\npetitioner\/tenant  did not press his petition on time being granted to  him to  vacate the tenanted premises by 31.12.1999. These facts are  being  noticed  since  the respondent has urged that the petitioner in  the  present revision  petition had obtained another eviction order and more  accommodation would be available to him.\n<\/p>\n
6.   Coming  to petitioner’s family and the accommodation available to  it, the family comprises:\n<\/p>\n
     (i) Petitioner and his wife;\n<\/p><\/blockquote>\n
<\/blockquote>\n
     (ii) Eldest son Rajesh kumar and  his wife;\n<\/p><\/blockquote>\n
<\/blockquote>\n
     (iii) Second son Mukesh Kumar and his wife;\n<\/p><\/blockquote>\n
<\/blockquote>\n
     (iv) Unmarried son Prashant;\n<\/p><\/blockquote>\n
<\/blockquote>\n
     (v) Three married daughters – one of the daughters has since expired. Her husband and children keep visiting the petitioner.<\/p>\n<\/blockquote>\n
     (vi) Grandchildren.\n<\/p><\/blockquote>\n
\n     The  learned Additional Rent Controller has held them to be  dependant on  the petitioner for the purposes of accommodation. Petitioner’s case  is that for the aforesaid family, living accommodation available is two rooms, two  stores and two kitchens, which is grossly insufficient for three  married couples. <\/p>\n<\/blockquote>\n
7.   The  learned Additional Rent Controller on the other hand had  reached the conclusion that petitioner has the undermentioned accommodation  available to him:\n<\/p>\n
     GROUND FLOOR: (G.F.):\n<\/p><\/blockquote>\n
<\/blockquote>\n
     (i) One room marked X-1 in Exhibit A-1 of size 14′ x 12′.<\/p>\n<\/blockquote>\n
     (ii) A room in the rear portion, below the jaal (iron mesh) on the first floor;<\/p>\n
     IST FLOOR: (F.F.):\n<\/p><\/blockquote>\n
<\/blockquote>\n
     (i) One room, one store and one kitchen;\n<\/p><\/blockquote>\n
<\/blockquote>\n
     (ii) One room, one store and one kitchen vacated by the tenant;<\/p>\n<\/blockquote>\n
     (iii) One room recently constructed over the jaal;<\/p>\n<\/blockquote>\n
     (iv) Mezzanine floor.\n<\/p><\/blockquote>\n
<\/blockquote>\n
8.   Learned  counsel for the petitioner has assailed the findings  of  the Additional  Rent  Controller  primarily on the  ground  that  accommodation alleged at G.F.(ii); F.F.(iii) and (iv) is not in his possession and in any case does not constitute habitable living accommodation. Petitioner  states there  is  no room on the ground floor below the jaal of the  first  floor. Even  otherwise,  the  dimensions are 9′ x 6′, which would not  make  it  a habitable room.\n<\/p>\n
     The  room  on the ground floor of size 14′ x 12′ is stated  to  be  in commercial use since 1983-84, i.e. prior even to the filing of the eviction petition, by the eldest son of the petitioner. It is claimed that even  the earlier  tenant was using it as a godown. The finding of the learned  Additional  Rent  Controller  that the commercial user was  created  to  create scarcity  of accommodation was unwarranted. A subsequent date of  registration for the purposes of sales tax would not always exclude earlier commercial user since registration can be subsequently obtained.\n<\/p>\n
9.   Coming  to  the  accommodation available on the  first  floor,  it  is claimed  that  the  room marked ‘X’ in Exhibit A\/2 is a room  which  is  in possession of petitioner’s brother Om Prakash and this is so by virtue of a Gift Deed executed by the grandfather of the petitioner, who was the  owner of  the house in terms of which the possession of petitioner’s  brother  Om Prakash  was not to be disturbed. The room over the Jaal, marked ‘E’,  ‘F’, ‘G’  and ‘H’ cannot be used for dwelling purpose. It measures 6′ x  9′  and does not even have a pucca roof. It has a tinned shelter.\n<\/p>\n
10.  As regards the mezzanine, it is submitted that it has come out clearly in evidence that the same is in the tenancy of one Kishore Chand  Katwaria, a  tenant, and the learned Trial Judge has misread the evidence in  holding that the mezzanine is in petitioner’s possession.\n<\/p>\n
11.  After  hearing  the learned counsel for the parties as well  as  going through the trial court record, I find that the conclusions reached by  the learned Additional Rent Controller with regard to the extent of  accommodation  available to the petitioner cannot be sustained and are either  based on misreading of evidence or are vitiated by on-consideration of  relevant material.  It  has come in evidence that the room on the ground  floor  has been  in  commercial use well before the filing of  the  present  petition. Petitioner’s son has deposed that he has been running his electronic repair
\nshop  from there and was earning around Rs.800\/- per month at the  time  of recording of the evidence in 1987. The said portion of the premises had not been  used for residence either by the petitioner or even the earlier  tenant.\n<\/p>\n
12.  Coming  to the question of the room over the jaal (iron mesh)  on  the first floor as well as the alleged room on the ground floor below the jaal, it has come in evidence that the said portions are of the size of 9′ x  6′. These cannot, therefore, be considered habitable accommodation, apart  from the fact that it has a tin roof. Learned counsel for the petitioner, during the course of arguments, submitted that indeed if the respondent considered the  accommodation below the jaal on the ground floor and the one above  on
\nthe first floor over the jaal with tin roof habitable living accommodation, petitioner  would  have no objection to respondent occupying  the  same  in exchange of the room in respondent’s occupation. Understandably, there  was no response to it.\n<\/p>\n
13.  As  regards  the room on the first floor directly above  the  tenanted premises,  it has come in evidence that the said room is in the  occupation of the brother of the petitioner, Om Prakash, in pursuance of the terms  of the Gift Deed executed by his grandfather. The Municipal Survey records, as old  as of the year 1972, have shown the said room to be in  possession  of petitioner’s  brother.  The  learned Additional Rent  Controller  erred  in ignoring  the House Tax Survey and Corporation records on the  ground that the particular room in possession of petitioner’s brother was not  specifically  mentioned  and there could be shifting from one room to  the  other. Once  the factum of occupation of residence by petitioner’s brother in  the room  on the first floor is established by unimpeachable  documentary  evidence,  there  is  no reason to disbelieve the  petitioner’s  version  with regard  to his brother being in occupation of one room, as a sequel of  the Gift Deed.\n<\/p>\n
14.  As regards the mezzanine floor, petitioner’s case is that the same  is in possession of another tenant, Kishore Chand Katwaria. It is  significant that  it was not even the respondent’s case that petitioner was in  occupation of the mezzanine floor. I find considerable merit in the contention of learned  counsel  for the petitioner that the statement  of  Kishore  Chand Katwaria has been misread. Kishore Chand Katwaria appeared as a witness and deposed that he was a tenant in the mezzanine floor for the last 10  years.\n<\/p>\n
Petitioner  had  moved an application for placing on  record  the  original birth  certificates of the children of Kishore Chand Katwaria, showing  the date  of birth as far back as 28.8.1980 in the premises in suit  at  112-A, Kamla nagar, Delhi. The mezzanine is stated to be of a height of less  than 7′.  The  statement of Mr. Katwaria, coupled with  petitioner’s  statement, establishes  that petitioner is not in occupation of the mezzanine for  the last  10 years. There is no challenge in the cross-examination to the  evi-\n<\/p>\n
dence of these witnesses.\n<\/p>\n
15.  Learned  counsel for the respondent submitted that another  tenant  of the  petitioner, as noted in para 4 above, viz. Sushil Kumar who  had  suffered  an  eviction  order, has undertaken to vacate the  premises  in  his possession  by the end of 1999. Thus, additional accommodation of  a  room, kitchen  and  garage would be available to the petitioner in  future,  who, therefore,  does  not need the premises in suit. I am afraid,  this  cannot non-suit the petitioner and cannot be a ground to deny relief to the  petitioner, who otherwise had a growing family.\n<\/p>\n
16.  On  a careful consideration of the material and evidence on record,  I find merit in petitioner’s case that accommodation available to him is only one  room,  a kitchen and a store on the ground floor  of  House  No.112-A, Kamla  Nagar, Delhi, as shown in green in the plan annexed to the  eviction petition  and another room, kitchen and a store on the first floor,  marked ‘A’,  ‘B’,  ‘C’ and ‘D’ in Exhibit A\/2, which has been vacated  by  another tenant  during  the pendency of the petition. The  accommodation  over  and
\nbeneath the jaal; the room in occupation of petitioner’s brother Om Prakash since  1972; and the room on the ground floor which has been in  commercial use cannot be considered, while computing the habitable and living accommodation  available to the petitioner. The petitioner requires  the  tenanted premises  in  suit bonafide for his use. It cannot be lost  sight  of  that petitioner  is a retired gazetted officer and has two married sons who  are working. Petitioner claims that they have status in life and possess a  car
\nand a scooter. There are three married couples in the family. Petitioner is entitled  to live comfortably with his family, apart from the  families  of the married daughters who come and visit the petitioner. The learned  Additional Rent Controller rejected the submission of the petitioner’s  counsel for a drawing-cum-dining room and a guest room, observing that the petition when filed was on the basis of requiring space for studies by his sons  who were students at that time. The learned Additional Rent Controller goes  on
\nto hold that petitioner never claimed that he required a drawing room or  a dining  room. This approach does not commend well to me. The  petition  was filed in the year 1985. More than 13 years have gone by. There is change of circumstances.  With the growth of family, petitioner’s claim for having  a drawing room, a dining room or a guest room where guests of the  petitioner and  his  married  daughters and their family members can  come  and  stay, cannot be considered by any standards as unreasonable.\n<\/p>\n
17.  In view of the foregoing discussion, the revision petition is allowed. The order passed by the learned Additional Rent Controller, dismissing  the eviction  petition  is  set aside. Eviction order in  respect  of  premises No.112-A,  Kamla  Nagar,  Delhi, as marked red in Exhibit  A\/1  is  passed. Respondent,  however, would have the benefit of Section 14(7) of  the  Act. The eviction order would not be executable for a period of six months  from today.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Suraj Prakash vs Sri Gopal on 1 November, 1998 Equivalent citations: 75 (1998) DLT 579 Author: M Sarin Bench: M Sarin ORDER Manmohan Sarin, J. 1. This revision petition has been filed by the petitioner\/landlord against the judgement dated 06.05.1995, passed by the learned Additional Rent Controller, dismissing the eviction petition filed […]<\/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-188373","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nSuraj Prakash vs Sri Gopal on 1 November, 1998 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/suraj-prakash-vs-sri-gopal-on-1-november-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Suraj Prakash vs Sri Gopal on 1 November, 1998 - 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