Delhi District Court
Smt. Bhagwati vs Sh. Sohan Lal on 19 July, 2010
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IN THE COURT OF MS. NAVITA KUMARI: ADDL. RENT
CONTROLLER: WEST DELHI
E-357/09/09
Smt. Bhagwati
W/o Sh. Kishan Lal,
R/o H. No. A-800, Madipur J. J. Colony,
New Delhi-63.
.....Petitioner
Versus
Sh. Sohan Lal,
S/o Late Sh. Mange Ram @ Manga Ram
Premises no. A-800, Madipur, J. J. Colony,
New Delhi-63.
ALSO AT:
(i) A-713, Madipur J. J. Colony,
New Delhi-63.
(ii) A-883, Madipur J. J. Colony,
New Delhi-63. .....Respondent
Date of Institution : 11.12.2009
Date of Reserving Judgment : 14.07.2010
Date of pronouncement : 19.07.2010
Eviction Petition U/Sec.14(1)(e) r.w. Section 25-B of Delhi Rent Control Act, 1958 2 Order:-
1. Vide this order I shall dispose of the application of the respondent for seeking leave to defend filed on 08.01.10.
2. The present eviction petition U/Sec.14(1)(e) r.w. Sec.25-B of Delhi Rent Control Act, 1958 (hereinafter referred to as DRC Act) was filed by the petitioner against the respondent on 11.12.2009. The brief facts as narrated in the petition are that the petitioner is the owner/landlady of the premises bearing no. A-800, Madipur J. J.
Colony, New Delhi-63 and respondent is her tenant with respect to one room and covered veranda on the ground floor of the abovesaid property as shown in red colour in the site plan filed by the petitioner. The family of the petitioner consists of herself, her husband, two sons namely Lokesh and Jai Prakash and two daughters namely Dolly and Hemlata. Both the daughters of the petitioner are married and residing separately in their matrimonial homes but they keep on visiting their parents. The husband of the petitioner is aged about 70 years and suffering from various ailments who had fallen down about 10 years back and got fracture in his left thigh (Kulha bone) and since then he is unable to walk properly and is presently running a petty 3 business of selling toffees, gutka, tobacco, cigarette, etc. in the veranda in front of the room in their possession. There are two rooms and veranda in front of those on the ground floor and out of these two rooms one room is in possession of the petitioner and other room is in possession of the respondent. Though the petitioner had raised construction on first, second and third floor (having two rooms on each floor) in the year 2004 but all these floors had to be rented out because the petitioner was in dire need of money for the purpose of repayment of loan amount taken from different persons at the time of marriage of her daughters. The petitioner, her husband and her two unemployed sons are jointly living in one room on the ground floor and are facing acute problem of paucity of accommodation. The married daughters of the petitioner also could not stay with them during their visits to the parents due to paucity of accommodation. The petitioner has no separate kitchen, latrine and bathroom and they are cooking their food inside their room only. The sons of the petitioner are of marriageable age but due to scarcity of accommodation their marriages could not be performed. Hence, the premises are required bonafidely for herself as well as for her husband and two sons for residence as well as for running business therein.
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3. After service the respondent appeared and filed his leave to defend application in which he has admitted the relationship of landlord and tenant between the parties. He has sought leave to contest on the grounds viz. that the petition is not maintainable as the petitioner has failed to obtain the permission from the Competent Authority U/Sec.19 of Slum Areas (Improvement & Clearance) Act, 1956 because the property lies in the Slum Area; that the petitioner has falsely alleged that her husband is incapable of working whereas he is doing the work of white-washing; that the younger son of the petitioner is living separately; that the elder son of the petitioner is running a shop from the property i.e. bearing no. A-800, Madipur J. J. Colony, New Delhi- 63; that the plea of bonafide requirement is false and sham because when the petitioner had raised construction of first, second and third floors, she had enough additional accommodation but she opted to rent out the same and that the sole purpose and intention of petitioner is to evict the respondent and subsequently let out the tenanted premises at higher rate of rent.
4. In reply to leave to defend application the petitioner submitted that no permission is required to be obtained U/Sec.19 of Slum Areas (Improvement & Clearance) Act, 1956 for filing a petition 5 U/Sec.14(1)(e) r.w. Sec.25-B of DRC Act. She has denied that her husband is a painter and doing a work of white-washing and reiterated that he is 70 years old person, suffering from various ailments and fracture of thigh (kulha bone) who is unable to walk properly and is presently running a petty business of selling tofees, gutka, tobacco, cigarette, etc. on the takhat posh in veranda in front of the room in their possession. She has denied that her younger son is living separately or that the elder son is running a shop from the room in their possession. She has submitted that the first, second and third floors were let out by her out of compulsion because she was in dire need of money to repay the loans taken by her for performing the marriages of her daughters. She has denied that she has any intention to get the premises vacated for re-letting the same at higher rate of rent.
5. Though the respondent was given opportunity to file rejoinder but he failed to avail the opportunity and did not file the rejoinder.
6. I have heard the arguments from counsel Sh. A. C. Bhasin for the petitioner and counsel Sh. R. K. Sharma for the respondent and also perused the entire record.
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7. The first and foremost contention of the respondent is that the petition is not maintainable because the petitioner has not obtained the permission of the Competent Authority U/Sec.19 of Slum Areas (Improvement & Clearance) Act, 1956. But the contention is wholly untenable as it is settled law that no such permission is required for filing petition U/Sec.14(1)(e) r.w. Sec.25-B of DRC Act. It has been held by Hon. Supreme Court in Shafait Ali Vs. Shiv Mal, AIR 1988 SC 214 that provisions of Slum Act do not apply in the case covered U/Sec.14(1)(e) of DRC Act. It is also held by Hon. Supreme Court in Ravi Dutt Sharma Vs. Swaran Kaur, AIR 1984 SC 967 (1) that permission of Competent Authority U/Sec.19(1)(a) Slum Act is not necessary for filing the petition U/Sec.14(1)(e) of DRC Act. Hence the abovesaid contention of respondent is rejected.
8. It has been argued on behalf of the respondent that the petitioner has falsely alleged that her husband is unable to work whereas he is doing the business of white-washing and further her elder son is running a shop from the property bearing no. A-800, Madipur, J. J. Colony, New Delhi-63. But the petitioner has vehemently denied the same in her reply and has submitted that the husband of the petitioner is unable to work property due to fracture of his kulha bone and is therefore 7 running a petty business of selling toffees, gutka, tobacco, cigarette, etc. on the takhat posh in the veranda in front of their room. She has also denied that the elder son is running any shop from the house no. A-800, Madipur J. J. Colony, New Delhi-63 and has submitted that both the sons are unemployed. Though the respondent was given opportunity to file rejoinder but he failed to file the same and has not refutted the abovesaid averments of the petitioner. It is held in Mohd. Shamim Vs. Naseeban, 1998 RLR 217, "While deciding an application for leave to defend of the tenant, Controller has to consider the affidavits of both the parties. While it is optional for a tenant to file rejoinder-affidavit, but if he omits, then facts stated by landlady in her affidavit remain un-controverted and deserve due consideration."
In the present case also the abovesaid averment of the petitioner also deserves due consideration because the respondent has failed to refute the same by opting to file the rejoinder-affidavit. He has not denied that the husband of the petitioner is old person running a petty business of selling toffees, gutka, tobacco, cigarette, etc from takhat posh from the veranda in front of their room and has also not refuted 8 the averments of the petitioner that both her sons are unemployed. Now here, even if for the sake of arguments, it is presumed that the elder son of the petitioner is running a shop as alleged by the respondent, the same is not going to affect the bonafide requirement of the petitioner for the tenanted premises. The respondent has neither disputed the size of the family of the petitioner nor the accommodation available with the petitioner and her family members. The family of the petitioner consists of herself, her husband, her two sons of marriageable age and two married daughters. It is not disputed that the petitioner and her family members are in possession of only one room. It is also not disputed that the married daughters of the petitioner keep on visiting off and on to their parents, but could not stay there over- night due to paucity of accommodation. Thus, it is very obvious that the accommodation available with the petitioner and her family members is not at all sufficient. The present petition has been filed for requirement of the tenanted premises not only for commercial but also for residence purpose. So, even if it be presumed that the elder son of the petitioner is already running a shop, the same does not affect the bonafide requirement of the petitioner for residential purpose. It is also one of the contention of the respondent that the younger son of the petitioner is living separately. Though the petitioner has vehemently 9 denied the same but even if the contention of the respondent is accepted for the sake of arguments, the same is again not going to help his case in anyway because one room could not be considered a sufficient accommodation for petitioner, her husband, elder son and two married daughters who keep on visiting them. It is not out of place to mention that undisputedly the petitioner also does not have any kitchen and is cooking her food in the same room where the entire family is residing. The petitioner and her family members has requirement of at least four bedrooms i.e. one room for petitioner and her husband, one room each for two sons and one guest room. Even if the contention of the respondent about the younger son living separately is presumed to be correct, still there is requirement of three bedrooms whereas the petitioner and her family is having only one room at present and therefore it is a clear cut case of acute scarcity of residential accommodation with the petitioner and her family members and consequently a case for bonafide requirement of the tenanted premises is made out.
9. The next contention of the respondent is that the requirement of the petitioner is not bonafide because after construction of the first, second and third floors she had sufficient accommodation and if her 10 requirement was genuine she would have not let out those floors to other tenants. But it is pertinent to mention here that the petitioner has given due justification for letting out those floors in the year 2004 because she was in dire need of money to repay the loans taken at the time of performing marriages of her daughters. It is worth mentioning that the respondent has not disputed the said fact either in the leave to defend application or by opting to file rejoinder. The petitioner has further given the justification that now her sons have become of marriageable age and therefore also the premises in question are required because the marriages of the sons could not be proformed due to paucity of accommodation. The respondent has again failed to refute the same and therefore the same is admitted to be correct. Hence it is held that the petitioner has sufficiently justified the letting out of the first, second and third floor by her in the year 2004 and has also sufficiently set up her case for bonafide requirement for the premises in question. It is further argued on behalf of the respondent that the need of the petitioner is not bonafide which is clear from the fact that the three floors were rented out by her when she was living in one room only with her family members. But the contention is not tenable as the mere fact that the landlady has been so long managing to live only in one room along with her family members, does not mean 11 that they should be condemned to live as such perpetually in one room only. It has been held by the Hon. High Court of Delhi in Shahastrapal Sharma Vs. Ho Ram, 1973 RCR (Rent) 195, "Sec.14(1)(e) DRC Act - Landlords living in one room for long for reason of economy - Need for additional accommodation held bonafide - The mere fact the landlords so long managed to live in one room does not mean that they should live there perpetually."
Similarly in the present case it could not be said that the petitioner and her family members should keep on adjusting themselves in one room only because they have been living in that room since the time the petitioner let out the first, second and third floor, especially when the petitioner has given due justification for letting out these floors.
10. Last but not the least contention of the respondent is that the sole purpose and intention of the petitioner is to evict the respondent for re- letting the tenanted premises at higher rate of rent. But the same has been vehemently denied by the petitioner and she has stated that she has no such intention because she requires the premises bonafidely 12 for the use of herself and her family members. The contention of the respondent is a bare assertion without any material to substantiate the same. I am fortified on this point by the judgment of Hon. High Court of Delhi in Rajinder Kumar Sharma and Ors. Vs. Leelawati and Ors., 155 (2008) DLT 383, "Leave to defend not to be granted to tenant on the basis of false affidavit and false averments and assertions - Only those averments in affidavit are to be considered by Rent Controller which have some substance in it and are supported by some material."
It is held by the Hon. High Court of Delhi in a case titled as Hari Shanker Vs. Madan Mohan Gupta, 111 (2004) DLT 534, "Summary procedure in Section 25-B of Delhi Rent Control Act, 1958 cannot be defeated by merely making frivolous and vague allegations which can never be substantiated".
The abovesaid contention of the respondent is also mere assertion without any substance and hence rejected in view of the abovesaid case-law. Apart from this, the contention regarding re-letting the property is also not tenable in view of the protection already provided 13 in such kind of cases under the DRC Act itself, as such tenants can file petition for repossession if the premises are re-let by the landlord after evicting the tenant, but certainly the leave could not be granted solely on this ground. It is also held by Hon'ble High Court of Delhi in Vinod Kumar Bhalla Vs. Nanak Singh, 1982(2) RCR (Rent) 715, "Sec.14(1)(e), 14(7), 19 and 25B of DRC Act - Leave to contest - Tenant's allegations that landlord wanted to sell or re-
let the premises on enhanced rent. These allegations do not require consideration at the stage of granting leave to contest - If landlord relets or sells the premises, the tenant has remedy for restoration of possession under Sec. 19."
Thus the contention of the respondent that the petitioner wants to re- let the premised is rejected in view of the abovesaid case-law.
11. So, in light of the aforesaid analysis it is clear that the respondent has failed to disclose any fact which, if proved, would dis-entitle the landlady/petitioner from obtaining an order for recovery of possession of the tenanted premises and, therefore, the application of respondent for leave to defend is dismissed and eviction order is 14 passed in favour of the petitioner and against the respondent in respect to the tenanted premises. i.e one room and covered veranda in front thereof on the ground floor of the property bearing no. A-800, Madipur J. J. Colony, New Delhi-63 as shown in red colour in the site plan now exhibited as Ex.C-1. However, in view of Sec.14(7) of DRC Act, this order shall not be executable before the expiry of period of six months.
12. File be consigned to Record Room.
(ANNOUNCED IN THE OPEN (NAVITA KUMARI)
COURT ON 19.07.2010) ADDL. RENT CONTROLLER (WEST)
DELHI
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E-357/09/09
19.07.10
Present:- None.
Vide separate order the application of the respondent for leave to defend is dismissed and eviction order is passed in favour of the petitioner and against the respondent with respect to tenanted premises i.e one room and covered veranda in front thereof on the ground floor of the property bearing A-800, Madipur J. J. Colony, New Delhi-63 as shown in red colour in the site plan now exhibited as Ex.C-1. However, in view of Sec.14(7) of DRC Act, this order shall not be executable before the expiry of period of six months. However, in view of Sec.14(7) of DRC Act, this order shall not be executable before the expiry of period of six months.
File be consigned to Record Room.
(Navita Kumari) ARC/Delhi(West) 19.07.10