IN THE HIGH COURT OF DELHI AT NEW DELHI

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT: BONAFIDE REQUIREMENT (D.R.C. ACT)

C.R.P. NO. 1171 / 2002

Reserved On : 10.11.2004

Date of decision : 19.11.2004

SHRI MOKHAM SINGH ... PETITIONER

Through : Mr. Sandeep Sethi,

Senior Advocate with

Mr. P.S. Bindra, Advocate.

- V E R S U S -

SHRI MOHD. KHURSHID & ORS. ..RESPONDENTS

Through : Mr. Kuljeet Rawal,

Advocate for R-1.

None for R-2 to 6.

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL

1. The petitioner is a tenant in respect of first floor and barsati floor/servant quarter of premises bearing No. B-171, Greater Kailash Part-I, New Delhi and is aggrieved by the impugned order of the Additional Rent Controller (hereinafter to be referred to as, `the ARC') dated 26.09.2002 allowing the petition filed by respondent No. 1 for bona fide requirement of the premises under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (hereinafter to be referred to as, `the said Act').

2. The petition for eviction was filed by respondent No. 1, co-owner of the property, as far back in July, 1989. The premises were stated to be let out for residential purposes where the petitioner was residing with his family members. The property was originally owned by Shri Shyam Mohan Mehra and was sold vide sale deed dated 13.11.1981 to respondent No. 1 along with respondents No. 2 to 6. The premises were stated to be required bona fide for respondent No. 1 for himself and his family members.

3. It may be noticed that respondents No. 2 to 6 were originally the petitioners, but were subsequently transposed as respondents in the petition being the co-owners. This requirement arose on account of the fact that the petition was originally instituted by respondent No. 1 herein on his behalf as well as being attorney of respondents No. 2 to 6. Respondents No. 2 to 6 claimed that the power of attorney had been revoked on 17.02.1988 and that it had been only given for the purpose of filing suit against levy of house-tax and not for filing eviction petition. This position was, however, disputed by respondent No. 1 on the ground that on the very basis of this power of attorney, various proceedings had been instituted by him to the knowledge of respondents No. 2 to 6 and the receipt of any notice of revocation of power of attorney was denied. This question was dealt with by the order dated 07.03.1998 of the ARC coming to a finding that if the property is jointly owned, then all co-owners have to be joined as co-plaintiffs or respondents. Assuming the argument of respondents No. 2 to 6 to be correct, even then the ARC found that if it was so, the defect was curable and, thus, the question of the validity of power of attorney was not gone into and respondents No. 2 to 6 were permitted to sign the petition.

4. Respondents No. 2 to 6, however, were not willing to sign the petition and this fact is recorded in the order dated 16.03.1999 and, thus, they were permitted to be impleaded as proforma respondents. Simultaneously, the application of the petitioner herein for amendment of the written statement was also considered in terms whereof it was sought to be pleaded that the petition was not maintainable since it was not signed and verified by the other co-owners. This application had been filed on 30.04.1988. The application was resisted by respondent No. 1 on the ground that the petition was properly instituted, but subsequently due to dispute within the family, respondents No. 2 to 6 had backed out and raised the objection and also refused to sign the petition. The ARC left this question open stating that no amendment was required in this regard. These facts were necessary since the main plea raised by learned senior counsel for the petitioner is that the petition is liable to be rejected on account of not having been instituted properly. However, before dealing with this issue, it would be appropriate to consider merits of the controversy.

5. In so far as the family of respondent No. 1 is concerned, the same is stated to consist of 12 members. Respondent No. 1 is married and has 3 sons and 5 daughters. One of the daughters is married, having a child and living with her husband, while the second and third daughters are studying and both were at that stage 26 and 24 years old respectively. The elder son was an income-tax assessee and doing business aged 21 years. The mother of respondent No. 1 was also stated to be residing with him. The parents of respondent No. 1 were stated to be dependant on respondent No. 1 for residential purposes. The domestic servant was also there and one room was stated to be required for him.

6. In so far as the issue of availability of the alternative accommodation is concerned, it was stated that there was no other residential accommodation in possession except one house bearing No. 5104, Qudratulla Street, Quresh Nagar, Sadar Bazar, Delhi in which respondents No. 2 to 6 were also residing whose family consisted of 5 persons with their wives and a total of 16 children between all the 5 persons. It was, thus, submitted that all the persons could not be accommodated in the property at Sadar Bazar. Respondent No. 1 was stated to be in possession of a part of it shown in green colour and having one room on the third floor where the mother of respondent No. 1 performs puja, so there is only one drawing room used by all the family members and there would be visiting relatives and in-laws. The property at Sadar Bazar belongs to the firm M/s. Khurshid Enterprises Pvt. Ltd.

7. The petitioner referred to the proceedings filed under Section 14(1)(a) of the said Act by the earlier landlord in the year 1976, which were dismissed and the factum of the respondents also filing such a petition in the year 1984, which was pending. The ownership/landlord status of all the respondents was disputed. It was, however, admitted that the petitioner was the tenant and the premises were let out for residential purposes only. The bona fide requirement was, however, denied.

8. The petitioner set out that the ground floor of the premises in question consist of 4 bedrooms with attached bath, drawing dining, kitchen, store, garage and servant quarter which had fallen vacant and had been let out to various tenants including on 01.07.1988 to M/s. Contract Advertising Pvt. Ltd. Subsequently, the premises were let out to a family concern of the respondents.

9. The evidence was led by both the parties and the ARC found that in view of the petitioner herein accepting that he was a tenant under Shri Shyam Mohan Mehra and the sale deed having been proved as also in view of admission in the cross-examination of the petitioner that the respondents were the landlords and co-owners, the issue of the status of the respondents was really undisputed.

10. The purpose of letting was also found to be residential since the petitioner himself had stated that it had been let out for residential purposes and was being used as such since its inception. This fact was apparent both from the written statement as well as admission in the cross-examination. The site-plan was also proved by respondent No. 1.

11. In view of the aforesaid position, the other aspect considered was the bona fide requirement of respondent No. 1 and whether there is any other alternative suitable residential accommodation. On the issue of certain other properties, a categorical finding has been reached on the basis of the testimonies that there is no other residential accommodation available other than the house at Sadar Bazar. In so far as the ground floor of the property at Greater Kailash is concerned, the same was found to be let out to M/s. Khurshid Enterprises Pvt. Ltd., which was stated to be a family concern of the respondents. It was found that respondent No. 1 was Managing Director of the company, but the ARC found that this would not give him the capacity to solely occupy the ground floor. The company was a different juristic entity and all the shareholders would have a right in the ground floor.

12. The testimony of the petitioner made interesting reading since it was admitted that a decree for possession in respect of a portion of the property bearing No. 831, Joshi Road, Karol Bagh, New Delhi was obtained by him, but he did not take any steps for getting possession of the same. It was admitted that this fact had not been told to the counsel before filing of the written statement. At some stage, he stated that he was in knowledge of the persons occupying the ground floor; while later on, he stated that the premises were lying vacant. The trial court has found that testimony of the petitioner was incoherent.

13. The ARC found on consideration of totality of evidence that ground floor of the property was with the company to which respondent No. 1 did not have any exclusive rights and even otherwise the size of families of the owners was such that it could not be said that there was any alternative residential accommodation available which would be sufficient for the family members. The ARC, thus, found that it was not open for a tenant to contend that the landlord must live in a congested house since the landlord has been staying there earlier. Since respondent No. 1 had by that time one son, who was married and two of marriageable age and all the 5 daughters had subsequently got married, respondent No. 1 would require a room for himself, one room each for 3 sons and at least two guest rooms for the visiting daughters, apart from the drawing and dining room. Thus, even if the ground floor accommodation was included as available to respondent No. 1, even then the accommodation would not suffice.

14. The aforesaid findings of the ARC have been based on a true and correct appraisal of the testimony and, in my considered view, does not call for any interference in exercise of revisionary jurisdiction.

15. There is dispute about the availability of ground floor, which has been found to be in possession of the company. There can be no doubt that the company is a separate juristic entity. If the company was solely owned by respondent No. 1, it may have been possible to contend that the company was only a camouflage to create requirement of accommodation. However, this is not so. There are more than one shareholders of the company and there are a number of different lines of the family. The family of respondent No. 1 is large and the accommodation available cannot be said to be sufficient. Four bedrooms would hardly suffice for the husband-wife, 1 married son, 2 sons of marriageable age, 5 married daughters, apart from the grandchildren. Respondent No. 1 cannot be denied the visits of his daughters and accommodation required too for the said purpose. Four bedrooms on the ground floor would hardly suffice for this size of the family. The ARC, thus, rightly concluded that the landlord cannot be made to squeeze his requirement. No doubt such requirement should not be fanciful, but the present case is not one where it can be said to be fanciful.

16. This also appears to be the reason that other than referring to availability of the ground floor, there was no real serious attempt on the part of learned senior counsel for the petitioner to dispel the findings to come to a different conclusion on this issue.

17. The whole substratum of the argument of learned senior counsel for the petitioner really arises from the defect stated to be existing in institution of the petition. Learned senior counsel contended that this aspect had, in fact, to be considered by the learned ARC at the stage of final decision in view of the earlier order dated 16.03.1999 referred to aforesaid, but this aspect had not been dealt with.

18. The reference to this aspect in the impugned order is only to the extent that it is recorded that respondents No. 2 to 6 were allowed to put their signatures on the petition, but they were not willing to put the signatures. They were impleaded as proforma respondents and amended memo of parties was filed. In view thereof, it was held that there can be no dispute about the legal position that the co-owner is competent to file the petition on the ground of bona fide requirement.

19. Learned senior counsel referred to the Full Bench judgment of Gujarat High Court in Nanalal Girdharlal & Anr. v. Gulamnabi Jamalbhai Motorwala & Ors., AIR 1973 GUJARAT 131 (FB) to contend that one co-owner / landlord cannot maintain a petition unless consented by the other co-owners and referred to the observations made in para 20 of the judgment wherein it was observed that all co-owners must join in a suit to recover possession of the property from the tenant. It may, however, be pointed out that towards the end of the paragraph, the principle has been clearly set out which is that all co-owners must be parties in a suit to recover possession of the property from the tenant on determination of the tenancy.

20. Learned senior counsel further referred to judgment of the Supreme Court in India Umbrella Manufacturing Co. & Ors. v. Bhagabandei Agarwalla (Dead) By LRs. Savitri Agarwalla (Smt.) & Ors., (2004) 3 SCC 178 to contend that it has been held that one of the co-owners can file a suit for eviction of the tenant in a property and the consent of the other co-owners assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of this disagreement. However, the co-owner cannot withdraw the consent midway the suit so as to prejudice the other co-owners and the suit once filed, rights of the parties stand crystalised on the date of the suit and entitlement of the co-owners to seek ejectment must be adjudged by a reference to the date of institution of the suit.

21. Learned senior counsel lastly referred to the judgment of learned Single Judge of this Court in Shri Ujagar Singh Kakkar v. Shri Chander Mohan & Ors., 1987 (1) R.C.J. 85 dealing with the petition under Section 14(1)(e) of the said Act filed by a co-owner for personal need without joining the other co-owners as petitioners or respondents. The petition was held as not maintainable on the ground that all the co-owners must be parties to the eviction petition.

22. It is, however, important to note that the stand of respondents No. 2 to 6 in the present proceedings supports respondent No. 1. They are, in fact, desirous of seeking eviction of the petitioner. In reply filed by them, it has been stated that all the co-owners came forward to join respondent No. 1 as they were also requiring the premises. Reliance has been placed in the reply on the factum of respondent No. 1 having mentioned the requirement of other respondents. It has also been stated that even in the absence of their being petitioners, their impleadment as respondents in any case suffice and that respondents No. 2 to 6 never supported the petitioner.

23. Learned senior counsel for the petitioner sought to emphasise that this was the different stand from what was sought to be taken by the said respondents before the trial court and their stand in the present proceedings could not cure the defect of the original petition.

24. Learned counsel for respondent No. 1, on the other hand, submitted that earlier orders of the trial court were, in fact, being misinterpreted. In this behalf, the order dated 07.03.1998 was referred to to emphasise that the defect, if any, was to be seen at the final stage. This defect did not remain since petitioners No. 2 to 6 were transposed as respondents in the petition. Thus, all the co-owners had joined the proceedings and there was no opposition to the eviction petition of respondent No. 1 by other respondents, though at that stage of time, they had raised objection about the power of attorney in favour of respondent No. 1 and had refused to sign the eviction petition due to family disputes. Since this defect was cured by their transposition, nothing remained to be decided on this account at the final stage.

25. Learned counsel referred to judgment of the Supreme Court in Pal Singh v. Sunder Singh (Dead) by LRs & Ors., (1989) 1 SCC 444, which was a case of an eviction proceedings filed by co-landlord failing to implead other co-owners in the eviction suit. The suit was held maintainable as the tenant was paying rent to the plaintiff co-owner without objection from the other co-owners. It was observed in para 9 of the judgment that since the other co-owners were not made parties but had not objected to the eviction, the suit could not be thrown out on that account and that a co-owner is as much the owner of the entire property as any sole owner.

26. Learned counsel referred to judgment of the Supreme Court in Smt. Kanta Goel v. B.P. Pathak & Ors., 1979 (1) R.C.R. 485 where earlier judgment of the Supreme Court was cited with approval in Sri Ram Pasricha v. Jagannath & Ors., 1977 (1) R.C.J. 494 : AIR 1976 SC 2335 holding that it was not correct to say that a co-owner of the property was not its owner since he owns every part of the composite property along with others and, thus, he cannot be said to be only a part owner or a fractional owner of the property. The case was one for eviction under the rent control law of Bengal and the contention that the absence of other co-owners on record disentitles one of the co-owners for suing for eviction was negated.

27. Learned counsel lastly referred to judgment of the Supreme Court in Dhannalal v. Kalawatibai & Ors., (2002) 6 SCC 16 where it was observed in para 25 that the law does not prevent the co-owner/landlord from joining together to sue on cause of action common to them all. The three relevant principles on the basis of which the judgment was arrived at were set out as under:

(i) that every wrong must have a remedy and every right to relief must have a forum for enforcement;

(ii) that the plaintiff is dominus litis; and

(iii) that one co-owner/landlord can file a suit for ejectment of the tenant and it is not necessary that all co-owners/landlords must jointly sue for ejectment though they are not prevented from - rather entitled to - joining together and suing jointly if they wish to do so.

28. I have considered the aforesaid plea advanced by learned counsel for the parties.

29. In my considered view, the eviction petition does not suffer from defect, which would entitle the petition to be thrown out on that ground for the reason set out hereinafter.

30. The judgment cited by both the parties lead to a conclusion that if only one of the co-owners is being treated as a landlord by the tenant, even that co-owner can maintain the eviction petition without impleading the other co-owners. However, this is not the position in the present case as the admitted position is that all the respondents herein are co-owners of the property. Thus, their impleadment becomes necessary. All the co-owners were, in fact, impleaded as petitioners and respondent No. 1 instituted the eviction petition on behalf of himself and the other respondents as co-owner on the basis of power of attorney. A dispute arose about the revocation of power of attorney later on during the proceedings. This defect was found to be curable as the other petitioners could put down their signatures affirming to the eviction petition being instituted by them. However, they failed to do so with the result that they were transposed as respondents in the petition. Thus, all the co-owners were made parties before deciding the eviction petition. The judgment of learned Single Judge of this Court in Shri Ujagar Singh Kakkar's case (supra) would, thus, not apply, which was a case where the other co-owners had not at all being made a party.

31. The observations made by the Supreme Court in India Umbrella Manufacturing Co. & Ors.'s case (supra) has to be appreciated in the context in which the said observations were made. The issue, which was being considered, was the withdrawal of consent midstream by one of the co-owners and to that extent it was observed that rights of the parties would stand crystalised on the date of institution of the suit.

32. Though the learned counsel for respondent No. 1 referred to observations of the Supreme Court in earlier judgments in Pal Singh's case (supra) and Smt. Kanta Goel's case (supra) to the effect that a co-owner was, in fact, an owner of the whole property and not a part of the property though along with others and, thus, the eviction petition could not be thrown out as instituted by him. In my considered view, the controversy in question is settled by the judgment in Dhannalal's case (supra) where three aspects have been succinctly set out in para 25 of the said judgment. It is the third principle, which would apply in the present case where one of the co-owners has sued for ejection of the tenant and has joined the others as respondents. This has been so done in the present case.

33. The fact that the defect, if any, was curable was apparent from the order passed by the ARC on 07.03.1998 permitting the other petitioners to sign the petition and leaving the question open on the issue of validity of power of attorney. The other respondents did not come forth to sign the eviction petition and they were, thus, transposed as respondents as recorded in the proceedings of 16.03.1999. The plea for amendment of the written statement was simultaneously not accepted again leaving the question open in respect of the effect of respondents No. 2 to 6 herein not signing the eviction petition.

34. In my considered view, the dispute within the family had given rise to the objection by the said respondents as is apparent from the reply filed in the present proceedings. Respondents No. 2 to 6 have, in fact, tried to put forth their case at a higher plain by stating that respondent No. 1 was prosecuting the eviction petition on their behalf and they never objected to the eviction. This would not be completely true since though undoubtedly respondents No. 2 to 6 never objected to the eviction petition, they did not come forth to sign the eviction petition and had to be transposed as respondents. The transposition of the said respondents No. 2 to 6 and their being made parties in the eviction petition in that capacity, thus, leaves no manner of doubt that all the co-owners have been joined together in the eviction petition and the validity of power of attorney becomes an academic exercise since if they had been impleaded as petitioners, would the question have arisen as to the validity of power of attorney. This defect, in my considered view, could be cured and was cured. In view of the subsequent conduct of respondents No. 2 to 6 and the plea raised before this Court, it would even otherwise not be appropriate to non-suit respondent No. 1 only on this technical ground raised by the petitioner, more particularly when all the co-owners are desirous of seeking an end to tenancy of the petitioner. Respondents No. 2 to 6 never supported the case of the petitioner. I do not see any reason to exercise revisionary jurisdiction in such a case to interfere with the impugned order of eviction.

35. The eviction petition was filed in the year 1989 and it took almost 13 years for it to culminate into an eviction order and six months' time was further granted in view of the eviction order having been passed. Despite this at the conclusion of hearing, it was put to learned senior counsel for the petitioner whether the petitioner would be willing to vacate the premises on grant of certain time period, but learned senior counsel on instructions from the petitioner stated that he would only like to contest the matter on merits since the petitioner is interested in prosecuting his case further in case of an adverse order.

36. In view of the aforesaid, the present petition, in my considered view, raises no such question as would entitle the petitioner to invoke revisionary jurisdiction of this Court to interfere with the impugned order of the ARC.

37.The revision petition is dismissed with costs of Rs.5,000/- payable to respondent No. 1.

SANJAY KISHAN KAUL, J.