Dr. Madan Mohan Luthra v. Santosh Rani

1. This petition impugns an eviction order dated 18th February, 2014, whereby the petitioner’s/tenant’s leave to defend application was rejected and he has been directed to vacate the tenanted premises i.e. a shop admeasuring 18 sq. yr. on the ground floor in house No.3406, Mahendra Park, Shakur Basti, Delhi-110034.

2. The respondent/landlord had petitioned for the eviction of the premises on the ground that she was suffering from afflictions related to high blood-pressure and severe osteoarthritis with “knee lock”; the premises were required by her for her own residential use as well as for use by her family members, which comprised her three sons with their respective 2014:DHC:3156 families and two married daughters who used to visit her along with their respective families; the first floor of her residential accommodation above the tenanted premises comprised of two bedrooms, one drawing room, one dining room, a kitchen, one storeroom and a small pooja room; out of the two bedrooms, one was occupied by her and the other by her son Jitender; in the second floor residential accommodation which comprised two rooms, two kitchen and a storeroom, her other two married sons were using one room each along with her growing grandchildren; her married daughters used to visit her along their respective families but due to non-availability of separate rooms for them, they used to be confined and cribbed with their families in the drawing and dining rooms; and finally, that she had no other alternate suitable accommodation to meet her bonafide requirement.

3. The tenant sought leave to contest the petition on the ground that the landlady had sufficient accommodation for herself; her children being married were not dependent upon her; the tenanted premises was being used for running a doctor’s medical clinic which was not in any way, suitable for residential use as it lacked the necessary amenities like a kitchen, toilet, window, ventilation, etc.; that earlier some shops were got vacated by the landlord but the same were not put to residential use; instead, she had removed the shutters of the shop on the left side of the tenanted shop and was using the space for car parking while the shop area was being used as a passage, and that the tenant had never had any dispute with the landlady, neither he ever misbehaved with her.

4. The Trial Court found none of these issues triable since each of them tended to dictate to the landlady as to how she should use her property. It is settled law that such prerogative is not available to a tenant. The Court further found that the landlady had indeed gone on to explain how the entire property available with her both on the first and second floor, was being put to use. Therefore, her not placing any site plan on record for the first floor would not make any difference. She could not be blamed for concealing any facts. The Court allowed the eviction petition in view of the number of family members who had to be accommodated in the very limited space. The tenant had failed to show that the landlady had suitable alternate accommodation which could meet her needs. For the tenant to argue that the landlady could use the recently vacated ground floor in this manner or that is not acceptable since such right is not available to a tenant.

5. Before this Court, the counsel for the petitioner doubted that the landlady was suffering from severe osteoarthritis. He submitted that the medical certificate of illness was of the year 2009 whereas the eviction petition was filed in the year 2013. He submitted that if she was she really suffering from any ailment she ought to have filed such petition earlier; that the tenanted premises is a commercial premises, therefore, it is not to be used for the aforesaid purposes and that the identically placed shops on either side of the tenanted premises which have been vacated in the recent past were not being utilized for residential purpose; that the petitioner, who is a Doctor, had been witnessing the landlady to be hale and hearty and leading an active family life i.e. she could be seen visiting market and climbing stairs without difficulty. Therefore, as a practicing doctor his view was that the landlady had fully recovered from her illness and could not be said to be ill anymore, in any manner. Hence, her claim for additional space on the ground floor, which was based on her medical certificate of alleged ailment, was doubtful and it ought to be put to trial. Learned counsel for the petitioner further submits that one hall on the ground floor in the rear portion of the building, could easily have been taken for use.

6. This Court is of the view that the arguments advanced by the learned counsel for the petitioner is untenable. It is not for the eviction-petitioner to prove before the Trial Court (ARC) through evidence that he/she is suffering from medical illness. A certificate in this regard would suffice unless exfacie shown to the contrary. For it to be a triable issue the tenant would need to show something doubtful on record which would prima facie would raise a doubt in the mind of the Court that landlord indeed did not suffer from such an ailment. At the time of filing the petition in 2013, the landlady was 67 year of age and suffering from osteoarthritis. The medical certificate to that effect has been adduced to the petition. The doctor/tenant whose eviction is sought from the tenanted premises has tried to doubt the continuation of the affliction to her bones simply because she was able to more about. From the eviction-petition the landlady has not stated that she is unable to move but that she has difficulty in using the “stairs to reach her room on the first floor of the property”. It is common knowledge that with advancement of age the affliction of osteoarthritis gets worse unless it is arrested by a curative therapy. It cannot be concluded that she had been fully cured or that she was not suffering from pain simply because she could move about. The tenant’s argument that the landlady appear to be hale and hearty is not acceptable since it is only a perception and not based upon examination of a patient. Besides, it is not known whether the tenant/doctor was specialized in osteopathy and whether he would have the requisite expertise to either adjudge or medically comment upon the nature of the disease or whether the landlady had been fully cured of her osteoarthritis. The Court would lean in favour of the landlady in such a circumstance believing her version to be true. As regards the landlady was not using the two shops earlier vacated on the ground floor, this Court is of the view that the same would tantamount to trying to dictate the landlady as to how she should use her property. The Trial Court noted that the landlady wanted the ground floor area for her residential purposes. The tenanted premises/shop is in the middle of two vacated shops. It may well be the objective of the landlady to have the entire ground floor area developed into a proper residential space so that she could utilise the entire space optimally. Until the present premises were vacated, her objective for renovation and redevelopment of the ground floor space for residential accommodation would be defeated.

7. The Trial Court distinguished the case from Zahida Begum v. Akhtar Ali 2012 (1) RCR (Rent) 78, upon which reliance was placed by the tenant, since in the present case the landlady had duly specified and disclosed the area which were being occupied by her. The Trial Court relied upon the case of Kishan Lal v. R.N. Bakshi 169 (2010) DLT 769 which holds that: “....when the landlord shows a prima facie case, a presumption that the requirement of landlord is bonafide, is available to be drawn....... The landlord is the best judge of his requirement for his residential or business purpose and he has got complete freedom in the matter and it is no concern of the Courts......The tenant cannot compel a landlord to live in a particular fashion.”

8. The Trial Court further noticed that the tenants contention that earlier also identical premises was got vacated by the landlady is not tenable. The tenant’s electricity connection was discontinued not on account of any action of the landlord but due to non payment of the dues which was required to be paid as per the use of the sub-meter.

9. The learned counsel for the petitioner has relied upon the case of Aggarwal Papers v. Mukesh Kumar 194 (2012) DLT 605 to contend that the tenant could not be thrown out till the landlord is able to make out a case of bonafide requirement. However, this judgment would not be applicable to the present facts since the landlady has already showed her bonafide need in view of her limited accommodation and large number of family members.

10. Counsel for the petitioner further relied on the case of Banarsi Dass Sodhi vs. Om Prakash 99 (2002) DLT 608 to contend that where the landlord had converted his own residential rooms into shops and then sought to evict his tenants for the sake of settling of his daughters and making them earn a livelihood therefrom were arbitrary and not in accordance with law. This Court is of the view that facts of the aforesaid case differ from the facts of the present case, since the entire accommodation available with the landlady were being put to residential use and ground floor space was required for her own residential use. Therefore, there was no case of conversion of any residential property into commercial property. Hence, this judgment too would not be applicable to the present case. Counsel then relies upon the case of M.M.Quasim v. Manohar Lal Sharma & Others AIR 1981 SC 1113 to contend that the landlord does not have unfettered right to re-enter premises of his choice and that he must prove that available vacant premises are not suitable for his purpose. However, this case too would not be applicable since, as demonstrated hereinabove, there was no other alternate space available to the landlady to be put to use which could be said to be alternate space available to her. Hence, her requirement of bonafide need for the premises was clearly made out.

11. In Mishri Lal v. Ramesh Chander CRP-25/2014, this Court has held that the need for accommodation of a married daughter in her parents’ home is an abiding need. Her parental home is always a source of guidance and emotional psychological anchor. It becomes all the more acute when she is accompanied by her husband and children. They visit her parents’ home not as casual guests but as family members and would need some regular room with privacy, so as to spend some quality time with the near relatives.

12. In view of the fact that the Trial Court has taken into consideration each of the contentions raised by the tenant and found them not to be triable, and the fact that all the arguments of the tenant were more in the nature of directing the landlady as to how she should use her available residential accommodation so as to not to disturb the continuation of the tenancy of the tenant, the tenant’s arguments are not tenable in law. The impugned order does not suffer from any material irregularity. The reasoning for the conclusion arrived at is based on the record and the view taken is plausible in law. There is no reason for this Court to interfere with the impugned order. The petition is without merit and is accordingly dismissed.

NAJMI WAZIRI (JUDGE) JULY 08, 2014