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PETITIONER:

SHIV SARUP GUPTA

Vs.

RESPONDENT:

DR. MAHESH CHAND GUPTA

DATE OF JUDGMENT: 30/07/1999

BENCH:

V.N. Khare, R.C. Lahoti.

JUDGMENT:

R.C. Lahoti, J.

The appellant, a tenant in a residential

accommodation has sought for special leave to appeal feeling

aggrieved by an order of the High Court of Delhi which has

in exercise of jurisdiction conferred by Section 25-B (8) of

Delhi Rent Control Act, 1958 allowed a civil revision and

directed the appellant tc be ejected from the suit

accommodation reversing an order of Additional Rent

Controller, Delhi dismissing the landlord's application for

recovery of possession of the suit premises on the ground

specified in clause (e) of the proviso to sub-section (1) of

Section 14 of Delhi Rent Control Act, 1958 (hereinafter the

Act, for short).

Leave granted.

The suit premises are situated at D-219, Defence

Colony, New Delhi. The building has two floors and a

Barsati. The accommodation in each of the two floors

consists of two bathrooms, two bedrooms, a study room, a

glazed verandah, a drawing-cum-dining room and a kitchen.

There is a garage on the ground floor and a servant room on

the Barsati floor. The landlord is occupying the ground

floor. In July, 1978 the first floor and the Barsati were

let out by the landlord to the tenant -appellant for

residential purpose. There was some controversy whether one

room of the suit premises had formed part of the tenancy or

was illegally encroached upon and taken possession of by the

tenant. However, that controversy is over and the parties

before us have proceeded on assumption that the.. premises

in occupation of the tenant are all included in the tenancy.

The landlord-respondent is a practising doctor

presently about 78 years of age. In January, 1988 when the

proceedings for eviction were initiated, the family of the

landlord consisted of himself, his wife, a sqn Munish (also

a practising doctor), daughter-in-law and a grand son. The

landlord has three other sons, namely, Dr. Sunil Gupta, Dr.

Anil Gupta and Shri Deepak Gupta. Dr. Anil Gupta and one

more - two sons are non-resident Indians settled abroad.

The third one has his own business and is residing

separately from the father. The need pleaded in the

application for eviction was that the accommodation on the

ground floor in possession of the landlord was not

sufficient to meet his and his family's residential

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requirement. The landlord had a mother-in-law, suffering

from various ailments and was practically a dependent on the

son-in-law, a doctor by profession. The two doctors in the

family needed some accommodation as a part of their

residential unit for attending to the patients who visited

them either in emergency or with previous appointment at

timings other than the fixed hours of the clinic which was

being run at 2544, Sir Syed Ahmed Road, Darya Ganj, New

Delhi in a part of a house belonging to Joint Hindu Family

of the landlord which had many other members as well.

Undisputedly, the joint family house is a commercial

property and the portions other than the one occupied by the

landlord for clinic are in possession of the tenants,

Admittedly, there is a house property situated at

C-217, Sarvodya Enclave, New Delhi. The house there stands

on a plot belonging to the wife of the landlord and had come

up some time in the year 1986. Eversince the date of '

construction and also at the time of initiation of the

present proceedings it was in occupation of a tenant and

hence not available to the landlord or his wife for their

residence. Before the Rent Controller, the plea taken and

sought to be substantiated by some evidence by the landlord

was that the landlord's wife had executed a will whereby the

Sarvodya Enclave property was proposed to be bequeathed to

Dr. Anil Gupta, the NRI son and it is he who had invested

his own funds in constructing the property.

During the pendency of the proceedings before the

Rent Controller, the mother-in-law of the landlord expired.

The wife of the landlord also died. So far as the

requirement of the landlord by reference to the need of the

mother-in-law and of the wife as a member of the family, is

concerned, has come to an end.

The learned Additional Rent Controller held that the

landlord was the owner of the suit premises and that the

purpose of the letting was residential one. However, on the

solitary ground for ejectment, he held the alleged need of

the landlord to be not bonafide. He further held that

consequent upon the death of the mother-in-law and the wife

of the landlord, the accommodation in possession of the

landlord was sufficient to satisfy his requirement and

therefore it could not be held that the landlord was

bonafidely in need of any additional accommodation. The

learned Additional Rent Controller was also impressed by an

admission of the landlord-respondent made in his statement

that the Sarvodya Enclave property if available to the

landlord would have been sufficient to meet his requirement.

The death of the landlord's wife in whose name stood the

property was a subsequent event having impact on the

availability of the said accommodation to the landlord for

satisfying his alleged need. In view of these findings the

Additional Rent Controller has by order dated 24.8.1995,

dismissed the application for eviction.

The landlord preferred a revision to the High Court.

The landlord also moved an application styled as one under

Order 41 Rule 27 read with section 151 of the CPC inviting

the attention of the High Court to the effect of the death

of his wife Sushila Devi on 13th January, 1995 and annexing

with the application copy of a registered will dated 13th

June, 1994 executed by late Smt. Sushila Devi. By the said

will Smt. Sushila Devi has bequeathed her house property

no. C-217, Sarvodya Enclave in favour of her four sons

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subject to Dr. Anil Gupta being reimbursed by the sons for

Rs. 2 lacs, the amount spent by him on construction over

the said property. The application proceeded to state that

it was a material evidence to decide the controversy between

the parties and so the evidence deserved to be taken on

record and the petition disposed of after taking the said

evidence into consideration. Apart from the copy of the

registered will, the copies of the lease deed dated 12.7.78

of the plot in favour of the deceased, and the

letter-cum-order from the DDA dated 29.8.1996 intimating

mutation of plot/property number C217, Sarvodya Enclave in

favour of the four sons in place of their deceased mother

late Sushila Devi were also filed. The application was

opposed on behalf of the tenant. It appears that the High

Court heard the final' arguments. By the impugned order,

the revision filed by the landlord has been allowed and

eviction of the tenant ordered recording a finding of the

premises in occupation of the tenant being needed bonafide

for the residence of the landlord and his family. The will

dated 30th June, 1994 executed by late Sushila Devi filed

before the High Court along with the application for

additional evidence by the landlord has been taken into

consideration by the High Court though the application does

not appear to have been formally allowed and the documents

annexed therewith were not formally taken on record and

admitted - muchless proved - in evidence.

Before this Court, Ms. Syamla Pappu, the learned

senior counsel for the tenant-appellant has submitted that

the High Court has committed a jurisdictional error in

reversing the findings of facts recorded by. the Additional

Rent Controller. The jurisdiction so exercised by the High

Court is not one vested in it by sub-section (8) of Section

25B of the Act. The learned senior counsel further

submitted that the findings of act arrived at by the learned

Additional Rent Controller were based on evidence and

reasonably arrived at; there was no occasion to interfere

with and reverse the same. The learned senior counsel also

submitted that the High Court has committed a serious

jurisdictional irregularity by taking into consideration the

documents filed for the first time by the landlord before

the High Court without formally admitting the same in

evidence and without affording the tenantappellant an

opportunity of rebutting the additional evidence.

Shri Arun Jaitley, the learned senior counsel for

the landlord-respondent has supported the order of the High

Court. He submitted that the documents placed before the

High court by the landlord along with his application merely

intended a subsequent event to be brought to the notice of

the High Court. The documents were of undoubted veracity.

He further submitted that the ultimate finding arrived at by

the High Court would not be dislodged even if the documents

accompanying the application were excluded from

consideration. At ' the end submitted Shri Jaitley that the

finding arrived at by the High Court was the only finding

that co^ld have been reasonably arrived at from the material

available on record and hence the conclusion arrived at by

the Additional Rent Controller being not one 'according to

law' within the meaning of Section 25-B (8) was rightly set

aside by the High court, in any case the present one was not

a fit case for the exercise of jurisdiction under Article

136 of the Constitution, persuasively appealed the learned

senior counsel.

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Section 25-B of Delhi Rent Control Act, 1958 finding

its place in Chapter III-A of the Act was inserted into the

body of the main Act by Act No .18 of 1976 with effect from

1.12.1975. It provides for a special procedure to be

followed for the disposal of applications for eviction on

the ground of bona fide need. Obviously, this ground for

eviction of the tenant has been treated on a footing

different from the one on which other grounds for eviction

of the tenant stand. Section 25-B is a self-contained

provision in the sense that remedy against an order passed

by the Rent Controller thereunder is also provided by that

provision itself. Sub-section (8) provides that no appeal

or second appeal shall lie against an order for the recovery

of possession of any premises made by the Controller in

accordance with the procedure specified in Section 25-B,

provided that the High Court may, for the purpose of

satisfying itself that an order made by the Controller under

this section is according to law (or not), call for the

records of the case and pass such order in respect thereto

as it thinks fit'. The phraseology of the provision as

reproduced hereinbefore provides an interesting reading

placed in juxtaposition with the phraseology employed by the

Legislature in drafting Section 115 of the Code of Civil

Procedure. Under the latter provision the exercise of

revisional jurisdiction of the High Court is circumscribed

by the subordinate court having committed one of the three

errors, namely (i) having exercised jurisdiction not vested

in it by law, or (ii) having failed to exercise a

jurisdiction so vested, or (iii) having exercised its

jurisdiction with illegality or material irregularity.

Onder the proviso to sub-section (8) of Section 25-B, the

expression governing the exercise of revisional jurisdiction

by the High Court is 'for the purpose of satisfying if an

order made by the Controller is according to law'. The

revisional jurisdiction exercisable by the High Court under

Section 25-B (8) is not so limited as is under Section 115

CPC nor so wide as that of an Appellate Court. The High

Court cannot enter into appreciation or re-appreciation of

evidence merely because it is inclined to take a different

view of the facts as if it were a court of facts. However,

the High Court is obliged to test the order of the Rent

Controller on the touchstone of "whether it is according to

law'. For that limited purpose it may enter into

re-appraisal of evidence, that is, for the purpose of

ascertaining whether the conclusion arrived at by the Rent

Controller is wholly unreasonable or is one that no

reasonable person acting with objectivity could have reached

that conclusion on the material available. Ignoring the

weight of evidence, proceeding on wrong premise of law or

deriving such conclusion from the established facts as

betray the lack of reason and/or objectivity would render

the finding of the Controller 'not according to law' calling

for an interference under proviso to sub-Section (8) of

Section 25-B of the Act. A judgment leading to miscarriage

of justice is not a judgment according to law. [See; Sarla

Ahuja Vs. United India Insurance Co .Ltd. -(1998) 8 SCC

119 and Ram Narain Arora Vs. Asha Rani and Ors. - (1999) I

SCC 141.]

A perusal of Section 14 of the Act shows that the

law has imposed restrictions on the recovery of possession.

of any premises by landlord from a tenant notwithstanding

any law or contract to the contrary. However, an order for

recovery of possession is permissible on one or more of the

specified ground^. One such ground is the premises let for

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residential purposes being required bona fide by the

landlord for occupation as residence for himself or for any

member of his family dependent on him. What is a bofta fide

requirement is not defined in the Act. The words 'need' and

"require' both denote a certain degree of want with a thrust

within demanding fulfilment. 'Need' or 'requirement'

qualified by word 'bonafide' or 'genuine' preceding as an

adjective - is an expression often used in Rent Control

Laws. 'Bonafide or genuine need' of the landlord or that

the landlord 'genuinely requires' or "requires bonafide" an

accommodation for occupation by or use for himself is an

accepted ground for eviction and such expression is often

employed by Rent Control legislation draftsman. The two

expressions are interchangeable in practise and carry the

same meaning.

Chambers 20th Century Dictionary defines bonafide to

mean 'in good faith : genuine'. The word 'genuine' means

'natural; not spurious; real: pure: sincere'. In Law

Dictionary, Mozley and Whit ley define bonafide to mean

'good faith, without fraud or deceit'. Thus the term

bonafide or genuinely refers to a state of mind.

Requirement is not a mere desire. The degree of intensity

contemplated by 'requires' is much more higher than in mere

desire. The phrase 'required bonafide' is suggestive of

legislative intent that a mere desire which is outcome of

whim or fancy is not taken note of by the Rent Control

Legislation. A requirement in the sense of felt need which

is an outcome of a sincere, honest desire, in

contra-distinction with a mere pretence or pretext to ev.ict

a tenant, on the part of the landlord claiming to occupy the

premises for himself or for any member of the family would

entitle him to seek ejectment of the tenant. Looked at from

this angle, any setting of the facts and circumstances

protruding the need of landlord and its bonafides would be

capable of successfully withstanding the test of objective

determination by the Court. The Judge of facts should place

himself in the arm chair of the landlord and then ask the

question to himself-whether in the given facts substantiated

by the landlord the need to occupy the premises can be said

to be natural, real, sincere, honest. If the answer be in

the positive, the need is bonafide. The failure on the part

of the landlord to substantiate the pleaded need, or, in a

given case, positive material brought on record by the

tenant enabling the court drawing an inference that the

reality was to the contrary and the landlord was merely

attempting at finding out a pretence or pretext for getting

rid of the tenant, would be enough to persuade the Court

certainly to deny its judicial assistance to the landlord.

Once the court is satisfied of the bonafides of the need of

the landlord for premises or additional premises by applying

objective standards then in the matter of choosing out of

more than one accommodation available to the landlord his

subjective choice shall be respected by the court. The

court would permit the landlord to satisfy the proven need

by choosing the accommodation which the landlord feels would

be most suited .for the purpose; the court would not in such

a case thrust its own wisdom upon the choice Of the landlord

by holding that not one. but the other accommodation must

be accepted by the landlord to satisfy his such need. In

short, the concept of bonafide need or genuine requirement

needs a practical approach instructed by realities of life.

An approach either too liberal or two conservative or

pedantic must be guarded against.

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The availability of an alternate accommodation with

the landlord i.e. an accommodation other than the one in

occupation of the tenant wherefrom he is sought to be

evicted has a dual relevancy. Firstly, the availability of

another accommodation, suitable and convenient in all

respects as the suit accommodation, may have an adverse

bearing on the finding as to bonafides of the landlord if he

unreasonably refuses to occupy the available premises to

satisfy his alleged need. Availability of such circumstance

would enable the Court drawing an inference that the need of

the landlord was not a felt need or the state of mind of the

landlord was not honest, sincere, and natural. Secondly,

another principal ingredient of clause (e) of sub-section

(1) of Section 14, which speaks of nonavailability of any

other reasonably suitable residential accommodation to the

landlord, would not be satisfied. Wherever another

residential accommodation is shown to exist as available

than the court has to ask the landlord why he is not

occupying such other available accommodation to satisfy his

need. The landlord may convince the court that the

alternate residential accommodation though available is

still of no consequence as the same is not reasonably

suitable to satisfy the felt need which the landlord has

succeeded in demonstrating objectively to exist. Needless

to say that an alternate accommodation, to entail denial of

the claim of the landlord, must be reasonably suitable,

obviously in comparison with the suit accommodation

wherefrom the landlord is seeking eviction. Convenience and

safety of the landlord and his family members would be

relevant factors. While considering the totality of the

circumstances, the court may keep in view the profession or

vocation of the landlord and his family members, their style

of living, their habits and the background wherefrom they

come.

A few decided cases apposite to the point may be

referred. A Division Bench of Madhya Bharat High Court in

Motilal Vs. Badrilal - ILR 1954 MB 1. interpreted clause

(g) of the Madhya Bharat Sthan Niyantran Vidhan Samvat, 2006

where-under a landlord was entitled to eject a tenant if he

"really needs a house for himself and he possesses no other

accommodation belonging to him elsewhere". It was held that

the landlord was made the sole arbiter of his own

requirements but he must prove that he in fact wants and

genuinely intended to occupy-the premises. His claim would

no doubt fail if the Court came to the conclusion that the

evidence of "want" was unreliable and that the landlord did

not genuinely intend to occupy the premises. As to

alternative accommodation disentitling the landlord to the

relief of possession it was held that it must be reasonably

equivalent as regards suitability in respect to the

accommodation he was claiming. This statement of law was

cited with approval before a Full Bench of the High Court of

Madhya Pradesh in Damodar Sharma & Anr. Vs. Nandram

Deviram - AIR 1960 MP 345. Pandey,J. recording the

majority opinion emphasised the distinction between the

expressions 'genuinely requires' and 'reasonably

requires'and said:-

"It is wrong to say that "genuinely requires" is the

same as "reasonably requires". There is a distinction

between the two phrases. The former phrase refers to a

state of mind; the latter to an objective standard.

"Genuine requirement" would vary according to the

idiosyncrasy of the individual and the time and

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circumstances in which he lives and thinks. Reasonable

requirement belongs to the "knowledge of the law" and means

reasonable not in the mind of the person requiring the

accommodation but reasonable according to the actual facts.

In my opinion, in this part of Sec.4(g), the landlord is

made the sole arbiter of his own requirements but he must

prove that he, in fact, wants and genuinely intends to

occupy the premises. His claim would no doubt fail if the

Court came to the conclusion that the evidence of "want" was

unreliable and that the landlord did not genuinely intend to

occupy the premises".

As to impact of availability of another vacant

accommodation with the landlord it was held in Damodar's

case (supra) that it must satisfy the test of suitability

for satisfying the need of the plandlord.

The abovesaid Full Bench decision of the High Court

of Madhya Pradesh was cited with approval before this Court

in Saryats TJ3. Vs. Nerai Chand 1965 JLJ 973 (SC).

In M. M. Quasim Vs. Manohar Lal Sharma - AIR 1981

SC 1113 this Court has held (vide para 18) that the landlord

does not have an unfettered right to choose the premises but

merely showing that the landlord has some other vacant

premises in his possession may not be sufficient to negative

the landlord's claim if the vacant premises were not

suitable for the purpose for which he required the premises.

This Court cautioned that the Court must understand and

appreciate the relationship between the legal rules and

necessities of life.

In Ram Pass Vs. Ishwar Chander and Ors - AIP 1988

SC 1422 this Court has held that:-

" the need of the landlord should be genuine and

honest, conceived in good faith; and that, further, the

court must also consider it reasonable to gratify that need.

Landlord's desire for possession, however honest it might

otherwise be, has inevitably a subjective element in it and

that, that desire to become a "requirement" in law must have

the objective element of a "need". It must also be su^h

that the court considers it reasonable and, therefore,

eligible to be gratified. In doing so, the court must take

all relevant circumstances into consideration so that the

protection afforded by law to the tenant is not rendered

merely illusory or whittled down".

In Sarla Ahuja Vs. United India Insurance Co.Ltd.

- 1998 (8) SCC 119 this Court has held that the Rent

Controller should not proceed on the assumption that the

landlord's requirement is not bonafide. When t^e landlord

shows a prima facie case a presumption that the requirement

of the landlord is bonafide is available to be drawn. It is

not for the tenant to dictate terms to the landlord as to

how else he can adjust himself without giving possession of

the tenanted premises. While deciding the question of

bonafides of the requirement of the landlord, it is 'quite

unnecessary to make an endeavour as to how else the landlord

could have adjusted himself.

In Prativa Devi (Smt) Vs. T.V. Krishnan, 1996 (5)

SCC 353 this court has held that in considering the

availability of alternative accommodation, not availability

merely but also whether the landlord has the legal right to

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such accommodation has to be considered.

Reverting back to the case at hand, the landlord has

been living on the ground floor of the Defence .Colony

house. It was conceded at the Bar that as on the day the

family of the landlord consists of the landlord himself (a

practising doctor), his son (again a practising doctor), the

daughter-in-law and two grand children who are gradually

growing in their age. Looking at the size of the family,

availability of three bed rooms in the premises .in which

the landlord may live, is a requirement which is natural and

consistent with the sense of decency - not to talk of

comfort and convenience. There is nothing unreasonable in a

family with two practising doctors as members thereof

needing a room or two or a room with a veranda to be used as

a residentialclinic divided into a consultation room and a

waiting place for the patients. A drawing room, a kitchen,

a living room and a garage are bare necessities for a

comfortable living. The landlord has been living in Defence

Colony locality for more than 35 years. The first floor

which was let out to the tenant in the year 1978 as being an

accommodation surplus with the landlord has with the lapse

of time become a necessity for occupation by the landlord

and his family members. More than ten years by now have

been lost in litigation. The death of the wife of the

landlord, and the death of the landlord's mother-in-law, are

events which have hardly any bearing on the case of felt

need of the landlord. The need as pleadad and proved by the

landlord is undoubtedly natural,. sincere and honest and

hence a bonafide need. There is no material available on

record to doubt the genuineness of such need. It continues

to subsist in spite of the two deaths. It is not the case

of the tenant - appellant that while seeking eviction of the

tenant the landlord is moved by any ulterior motive or is

guided by some other thing in his mind. It will be most

unreasonable to suggest that the landlord may continue to

live on the ground floor of the Defence Colony house and

some members of the family may move to Sarvodaya Enclave

House if the whole family cannot be conveniently and

comfortably accommodated as one unit in the Defence Colony

house. It would be equally unreasonable to suggest that the

entire family must shift to Sarvodaya Enclave house which is

admittedly situated at a distance of about 7-8 kilometers

from Defence Colony. The landlord and his family are used

to living in Defence Colony where they have developed

friends and acquaintances, also familiarity with the

neighbourhood- and .the environment. The patients usually

visiting or likely to visit the residential clinic know

where their doctor would be available. Shri Arun Jaitley,

learned senior counsel for the respondent, has very rightly

submitted that it could not have been the intendment of the

Rent Control Law to compel the landlord in such facts and

circumstances to shift to a different house and locality so

as to permit the tenant to continue to live in the tenanted

premises. If the landlord wishes to live with comfort in a

house of his own, the law does not command or compel him to

squeeze himself tightly into lesser premises protecting the

tenant's occupancy. In addition, we find that on the date

of the initiation of the proceedings, Sarvodaya Enclave

property was belonging to the wife of the landlord or to one

of his sons resident abroad and was in actual occupation of

a tenant. On the death of the wife of the landlord if any

one of the two wills (one which was in existence at the time

of initiation of the proceedings or the one, which appears

to have been subsequently executed by the landlords' wife

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and filed before the High Court) was to be given effect to

then the ownership in the property has passed on to one son

or jointly to four sons of the landlord. If the will itself

is excluded from consideration as not proved then also the

ownership in the property has passed on to the four sons

jointly. Sarvodaya Enclave property does not belong to the

landlord and is not available for his occupation as an

owner. To these facts the applicability of law laid down in

Prativa Devi's case (Supra) is squarely attracted. In our

opinion, the availability of Sarvodaya Enclave property is

not of any relevance or germane to determining the need and

the bonafides of the need of the landlord. We are not

therefore inclined to attach any weight to the application

for additional evidence filed by the landlord before the

High Court though we agree with the learned counsel for the

tenant - appellant that the High Court was not justified in

taking into consideration the contents of the will without

formally admitting the same in evidence and affording the

parties opportunity of adducing evidence in proof and

dis-proof thereof.

For the forgoing reasons, we are of the opinion that

the High Court did not commit any jurisdictional error in

reversing the order of the Rent Controller and upholding the

landlord's claim for eviction. Inspite of excluding from

consideration, the documents' which wereproposed to be filed

by the landlord on the record of the High Court, the

ultimate finding of the High Court is liable to be upheld.

On the material available on record, the only conclusion

which could have been drawn is the one drawn by the High

Court. The order of the Rent Controller was not according

to law and was, therefore, rightly set aside.

The appeal is dismissed. The tenant appellant is

however granted six months time to vacate the premises

subject to filing usual undertaking within a period of one

month on the affidavit of the appellant to deliver vacant

and peaceful possession over the premises to the landlord at

the end of the extended time and in between regularly paying

the rent. Costs as incurred.