Anil Bhasin v. Imarti Devi

judgment.

¶20There is thus no merit in the first contention raised by the counsel for the petitioner.

¶21As far as the second contention, of the respondent having herself not stepped into the witness box, is concerned, it has been held by the Supreme Court in Ramkubai Vs. Hajarimal Dhokalchand Chandak

(1999) 6 SCC 540 that it is not essential in a proceeding for eviction of a

tenant for the landlord to himself/herself step into the witness box. This Court in Om Parkash Vs. Inder Kaur 2009 (107) DRJ 263, in the context of a petition filed under Section 14D of the Act held that any person is a good witness if he deposes about the facts which are in his personal knowledge, whether he is a father or an attorney or a son or a neighbour; what law requires is that the deposition must be of the facts to which he is a privy; the evidence given by a witness cannot be rejected on the ground that he is a father or a relative, nor any adverse inference can be drawn against the plaintiff on the ground that he had not appeared his own witness in the case; the plaintiff is master of his case; he can prove his case without appearing in the witness box. Mention may also be made of Capt. Praveen Davar (Retd.) Vs. Harvansh Kumari (2010) 119 DRJ 560, (SLP (C) No.26449/2010 preferred whereagainst was dismissed on 27th September, 2010). In the present case, it is the son of the respondent who has appeared as a witness and who is admittedly residing in one of the two properties aforesaid which are stated to be situated in close proximity of each other, according to the petitioner also at a distance of 1 Km only. It cannot be said that the said son of the respondent was not conversant with the facts, so as to be not able to depose about the same. A perusal of the cross-examination by the counsel for the petitioner of the said son of the respondent also shows the same to be comprising of nothing except suggestions that each of the deposition of the said son in the affidavit by way of examination-in-chief was wrong.

¶22I may also state that no permission is required for any witness in the know of the facts to appear and depose to the Court. Merely because

the son of the respondent also claimed to be the attorney of the respondent would not make any difference in the aspect.

¶23Once the petitioner is held to be the owner, Section 109 of the Transfer of Property Act, 1882 does not require any attornment by the petitioner in favour of the respondent and the same would follow under the law, creating the relationship of landlord and tenant between the parties. I have in Harvinder Singh Vs. M/s. Paradise Towers Pvt. Ltd.

(2013) 199 DLT (CN) 25, Sanjay Singh Vs. Corporate Warranties Pvt. Ltd. (2013) 204 DLT 12 and recently in judgment dated 6th September, 2017 in RC. Rev. No.422/2017 titled Vijay Sharma Vs. Namita Aggarwal dealt with the same aspect in detail.

¶24With respect to the third argument, the counsel for the petitioner argued (I) that the respondent being 80 years of age now cannot be expected to climb to the first floor and barsati floor in the tenancy of the petitioner; (II) that the respondent has sufficient accommodation available to her on the ground floor of property No.5626, Regharpura. Attention is also drawn to the cross-examination of the son Madan Lal of the respondent; while it was stated by the said son that the area of property No.5626, Regharpura was about 90 sq. yds., the counsel for the petitioner suggested that it was 200 sq. yds.

¶25I have enquired from the counsel for the petitioner, the area of the property in which the petitioner is a tenant.

¶26The counsel for the petitioner states that he is unable to state so and it has not come on record.

¶27However, a perusal of the Trial Court record requisitioned shows the site plan filed by the respondent to be disclosing the area of the

property, on the first and barsati floors of which the petitioner is a tenant, as 75 sq. yds. and the premises in the tenancy of the petitioner to be comprising only of two rooms, besides kitchen, bath and latrine etc. on the first floor and one room and terrace on the barsati floor. Therefrom, the accommodation on the ground floor of the said property can also be gauged and which falsifies the stand of the petitioner of the said ground floor comprising of four rooms and of which two rooms are available to the respondent. Significantly, the petitioner did not file any site plan of his own. It has been held in Rishal Singh Vs. Bohat Ram (2014) 144 DRJ 633 that when the tenant controverts the accuracy of the site plan filed by the landlord, he is required to file a copy of the site plan he believes to be correct so as to guide the Court in finding the discrepancies of the site plan filed by the landlord; without such site plan filed, mere contentions raised to this effect will be considered meritless. This Court in Satish Kumar Vs. Subhash Chand Agarwal 2012 SCC OnLine Del 4447 (SLP (C) No.27431/2012 preferred whereagainst was dismissed vide order dated 15th October, 2012) held that if a tenant does not file his site plan showing that the plan filed by the owner is incorrect, then, the site plan filed by the owner would be assumed to be correct. Reference can also be made to R.K. Bhatnagar Vs. Sushila Bhargava ILR (1987) II Delhi 607 and Ghanshyam Vs. Vijender 2014 SCC OnLine Del 3983 (SLP (C) No.3654/2015 preferred whereagainst was dismissed vide order dated 27th February, 2015), to the same effect. Thus, the petitioner, without filing a site plan of his own, cannot dispute the site plan of the landlord.

¶28That brings me to the argument, of the respondent at the age of 80

years being not able to climb the stairs.

¶29What is not in dispute is the number of family members of the respondent and the accommodation available to the respondent and her family members. It is not the argument that any other property, besides property No.5626, Regharpura and property No.2756-57/22, Beadon Pura is available to the family members comprising of five sons/deceased sons and their respective families, in turn also comprising of married sons and all of whom are residing in the two properties.

¶30For the reason aforesaid, the accommodation as disclosed by the respondent in property No.2756-57/22, Beadon Pura, without the petitioner proving anything to the contrary, cannot also be accepted as a sufficient, suitable and convenient alternate accommodation in all respects.

¶31Though the landlord may have pleaded use of the premises in a particular manner but when a landlord has a large family as has been found to be the case with the respondent herein, the portions of the accommodation which members of family may occupy from time to time may keep on changing as per their mutual understanding and it is not open to the petitioner as a tenant to tell the landlord, as to how the landlord should use the premises. The precedent, if any required on this aspect is to be found in Sarla Ahuja Vs. United India Insurance Company Ltd. (1998) 8 SCC 119, Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222, Sait Nagjee Purushotham & Co. Ltd. Vs. Vimalabai Prabhulal (2005) 8 SCC 252 and Anil Bajaj Vs. Vinod Ahuja (2014) 15 SCC 610.

¶32I am therefore unable to find the order of eviction impugned in the

petition for eviction to be not in accordance with law.

¶33Resultantly, the petition fails and is dismissed.

¶34The date of 8th March, 2018 is cancelled.

No costs.

RAJIV SAHAI ENDLAW, J.

NOVEMBER 06, 2017 'bs' (Corrected and released on 30th November, 2017).

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 6th November, 2017 + RC.REV. 266/2017 & CMs No.21625/2017 (for stay) & 39606/2017 (of petitioner for early hearing) ANIL BHASIN ..... Petitioner Through: Mr. Shahid Ali, Mr. Umardaraj and Ms. Bushra Hasan, Advs. Versus IMARTI DEVI ..... Respondent Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Rent Control Revision Petition under Section 25B(8) of the Delhi Rent Control Act, 1958 impugns the order [dated 20th March, 2017 in E No.292/2014 (New No.80119/2016) of the Court of Additional Rent Controller (ARC)-02 (Central), Tis Hazari Courts, Delhi] of eviction, after full trial, of the petitioner from property No.5626, Ward No.16, Gali No.76-77, Block-A, Regharpura, Karol Bagh, New Delhi-05. 2. The petition came up before this Court first on 24th May, 2017, when the notice of this petition was ordered to be issued, though recording that the impugned order was of dismissal of the application for leave to defend and without realising that the order impugned was of eviction after full trial, but no stay of the order of eviction impugned granted. 3. The respondent is reported to be served and this petition is listed next on 8th March, 2018. 4. An application filed by the petitioner for early hearing of this petition, stating that the respondent has applied for execution of the order of eviction, is listed today. On a reading of the paper book, not finding any prima facie ground for interference to have been made out, the counsel for the petitioner has today itself been heard on the merits of the Rent Control Revision Petition. 5. The counsel for the petitioner has raised three arguments. Firstly, it is contended that the respondent claimed ownership of the premises in the tenancy of the petitioner on the basis of a sale deed but which sale deed has not been proved in accordance with law and thus ownership of the respondent has not been proved. The second contention is that the respondent herself did not step into the witness box and only her son appeared as her Power of Attorney holder, that too without obtaining any permission from the Court for appearing as the Power of Attorney of the respondent. The third contention is that no bona fide requirement of the respondent of the premises in the tenancy of the petitioner has been proved. 6. The respondent instituted the petition for eviction, from which this petition arises, pleading (i) that the father of the petitioner was already a tenant on the first floor and barsati floor of property No.5626, Ward No.16, Gali No.76-77, Block-A, Regharpura, Karol Bagh, New Delhi, when the same was purchased by the respondent vide sale deed dated 26th October, 1989; (ii) that after the death of the father of the petitioner, the tenancy devolved on the petitioner; (iii) that the petitioner has been using the premises for residence; (iv) that the ground floor of the property was also with a tenant who vacated the same after the property had been purchased by the respondent and handed over the possession of the same to the respondent; (v) that the said ground floor has been in use and occupation of the son of the respondent who is having his office of tours and travels in the same; (vi) that the respondent is presently residing in one room situated on the ground floor of property No.2756-57/22, Beadon Pura, Karol Bagh, New Delhi along with the family of her another son Azad Kumar; (vii) that the respondent requires the premises in the tenancy of the petitioner for occupation by herself as she wants to shift from property No.2756-57/22, Beadon Pura to live comfortably in her own house and the respondent has no other accommodation available to herself; (viii) that property No.2756-57/22, Beadon Pura belonged to the ancestor of the husband of the respondent and devolved on the husband of the respondent along with other heirs of the said ancestor and only a portion of property No.2756-57/22, Beadon Pura had fallen to the sha