Delhi District Court
Smt. Pushpa Devi vs Sh. Trilok Chand @ Triloki (Since ... on 16 March, 2007
IN THE COURT OF SH. S.S. MALHOTRA : ADDL. RENT
CONTROLLER : KARKARDOOMA COURTS DELHI.
Suit No. E 123/06
In the matter of :-
Smt. Pushpa Devi
w/o Late Sh. Jugal Kishore,
R/o IX/1200, Ist floor,
Multani Mohalla,
Gandhi Nagar,
Delhi - 110 031.
....... Petitioner
Versus
Sh. Trilok Chand @ Triloki (since deceased)
Through :-
1. Smt. Sushila
w/o Late Sh. Trilok Chand
2. Sh. Chandan
S/o Late Sh. Trilok Chand,
3. Sh. Narender,
S/o Late Sh. Trilok Chand,
4. Ms. Suman
D/o Late Sh. Trilok Chand,
5. Miss Lata, minor daughter
through Smt. Sushila, her mother
all R/o Room No. 3,
Ground floor IX/1200,
Multani Mohalla,
Gandhi Nagar, Delhi - 110 031.
....... Respondents
Date of order : 16.3.07
1. By this judgment I shall dispose off the petition of the petitioner under Section 14(1)(e) r/w Section 25-B of Delhi Rent Control Act for evicting the respondent from the tenanted premises i.e. room no. 3 on the ground floor, with common verandah and common latrine in premises bearing No. IX/1200, Multani Mohalla, Gandhi Nagar, Delhi-31, as shown red in the site plan, hereinafter called the suit property.
2. Brief facts stated by the petitioner in her petition are that she is the landlady / owner of the premises No. IX/1200, Multani Mohalla, Gandhi Nagar, Delhi - 31, which was let out to the respondent for residential purpose initially @ Rs. 190/- p.m. and the present rate of rent is Rs. 300/- per month excluding electricity and water charges which were to be paid by the respondent as 1/4th share from meter no. 0280514 and K Number 0068721. It is stated that the respondent was inducted as a tenant in respect of room No. 3, 18 years back.
The petitioner has further stated that the premises is required by the petitioner for occupation as a residence for herself and for other members of the family dependent upon her and the petitioner has no other reasonably suitable residential accommodation with her. It is further submitted that she is widow and had four sons namely Surender, Narender, Rajender and Anil and three daughters namely Madhu, Radha and Harsh. The family of the petitioner's eldest son Surender consist himself, his wife, two children i.e. one son and one daughter aged about 19 years and 17 years.
Another son of the petitioner namely Narender is also married and has got one married daughter. Another son of the petitioner namely Rajinder is mentally unstable who is married and is having wife and one son. Another son of the petitioner Anil has died and he has left behind his wife and a daughter.
It is further submitted that the petitioner's daughter Madhu and Harsh are married and visits the petitioner regularly and another daughter of petitioner Smt. Radha staying with her alongwith her family. It is further submitted that the petitioner and her sons with their famiies are staying on the first floor of the suit property and only three rooms are available to them.
It is further submitted that petitioner's eldest son Surinder requires minimum 3-4 rooms, one for him and his wife and one each for his son and daughter. Petitioner's another son namely Narinder also requires two rooms one for himself and another for her married daughter. It is further submitted that one room is also required for Rajinder, another son of the petitioner, who is mentally unstable and require special care and independent room and two rooms are also required by him i.e. one for his wife and one for his son. It is further submitted that one room is required by the wife of Sh. Anil, deceased son of the petitioner and one room for his daughter. It is further submitted that petitioner also requires one drawing room, one pooja room and one guest room for visiting of her daughters and their families. It is further submitted that petitioner is an old lady and she wants reside on the ground floor and one room is required for herself and at present only three rooms are available with the petitioner and her family. It is further submitted that petitioner has no other reasonably suitable residential accommodation at Delhi or anywhere in India except this property. It is further submitted that petitioner is also owner of one premises which is in the occupation of sons of the late Sh. Ram Swaroop, against whom a suit for possession is pending in the court, and as such the petitioner requires suit property bonafide for the purpose of residence for herself and her family members who are dependent upon her for the purpose of residence. In these circumstances, it is prayed that the respondent be ordered to be evicted from the suit premises.
3. The respondent was ordered to be served under Schedule III of DRC Act and the respondent filed an application seeking leave to contest the petition and after hearing Ld. counsel for the petitioner, application seeking leave to contest the present petition was allowed vide order dt. 16.7.04 and the respondent was directed to file written statement.
4. The respondent has filed written statement taking various preliminary objections, inter alia, that present petition is not maintainable in the present form, the petition has been filed with ulterior motive, suit premises is not required by the petitioner or her family members as claimed, she has been harassing the respondent on one ground or other and her only motive is to get the tenanted premises evicted, the petitioner has not come to the court with clean hands and has suppressed the material facts from the purview of the court, the respondent is a old tenant since 1979 @ Rs. 60/- p.m. and now the rate of rent is Rs. 100/- p.m. and it is specifically denied that rate of rent is Rs. 300/- p.m. as alleged or that the respondent has not paid rent as alleged and rather it is submitted that Money Order was sent by the respondent but the petitioner refused to accept the same and ultimately it was deposited in the court by way of DR petition. It is further submitted that petitioner has submitted number of family members wrongly as she has stated that her three sons are married and having their wives and children but the fact remains that wife and children of only one son of the petitioner namely Surinder are residing with the petitioner and the children including the wives of all other sons of the petitioner are not residing with the petitioner and they are residing in their in-laws (wives parental house) house for the last several years. It is further submitted that the petitioner is quarrelsome lady and this is the reason behind that daughter-in-laws of the petitioner are residing separately and the family of the petitioner is consisting of only 7 members and admittedly, at present the petitioner has 11 rooms besides stores and therefore, the intention of the petitioner by stating that she has no sufficient accommodation available with her is false on the face of it. It is further submitted that premises in question is not required at all by the petitioner for the need of the petitioner or her family members but the main intention of the petitioner is to increase the rent and even if the premises is ordered to be vacated the petitioner would re let the same on higher rent. It is further submitted that the portion i.e. five rooms shown in blue colour in the site plan filed by the petitioner are not in dilapidated condition as alleged and it is submitted that present plea taken by the petitioner is after thought and she herself has made story with respect to dilapidated condition of the such portion and rather the premises which is in possession of the respondent is in much more bad condition than that of the said blue colour portion, as the petitioner has never repaired / whitewashed the portion of the respondent. It is further submitted that petitioner has accommodation more than she requires and accommodation on the ground floor as well as on the first floor which is sufficient for herself and her family members who are living with her. It is further submitted that she has also having open space / terrace on the ground floor as well as on first floor which is approximately of 600 sq. yards and therefore, the petition as filed by the petitioner is malafide and is liable to be dismissed. It is further submitted that petitioner has not filed any document with respect to her ownership of the tenanted portion nor she has filed any ration card showing number of his family members and she has wrongly stated that wives and children of her sons are residing in the said premises. It is further submitted that the requirement of the petitioner is not bonafide and if in fact she would have required the premises bonafide, then she would not have given the premises to her married daughter as stated by her in para 18(a)(4) where she has stated that portion shown in yellow colour has been given by her to her daughter Smt. Radha and therefore it is submitted that the accommodation even if is not sufficient with the petitioner, said scarcity has been created by the petitioner just to get the tenanted premises evicted. It is further submitted that petitioner has constructed some portion in the adjoining property and the respondent has filed correct site plan thereof on the court file.
On merits, relationship of landlord and tenant is not denied, but ownership of the petitioner is denied. The rate of rent is also denied and it is submitted that rate of rent is Rs. 100/- p.m. including electricity and other charges. It is further submitted that wife and children of only one son of the petitioner namely Surender are residing with the petitioner and other daughter-in-law alongwith their children of the petitioner are residing separately. It is also denied that Sh. Surender, son of the petitioner requires 3-4 rooms for himself or that other son namely Narinder requires two rooms one each for himself and for his married daughter and generally all the contents of preliminary objections have been reiterated by the respondent and it is prayed that petition of the petitioner may kindly be dismissed.
It is matter of record that petitioner has not filed any replication and the matter was fixed for evidence.
5. The petitioner has examined herself as PW1 and she has deposed that she is landlady/owner of the suit premises and the respondent is a tenant under her with respect to the suit premises bearing room No. 3 on the ground floor as shown red in the site plan with common use of Verandah and latrine as shown in the site plan Ex. PW1/1 which was let out to the respondent for residential purpose. She has further deposed on the lines of her petition with respect to the extent the she has four sons and three daughter and has also given detail of her children and grand children and stated that she has no sufficient accommodation with her and she requires the tenanted premises bonafide for the purpose of residence for herself and her family members and she has no other reasonably suitable residential accommodation with her.
She was cross examined by Ld. counsel for the respondent and in her cross-examination she deposed that her affidavit was prepared in Karkardooma Court but she does not remember the exact date when it was got prepared by her counsel. She does not remember as to how many places it was signed but she simultaneously submitted that no other person signed affidavit except her.
Property was purchased by her in the year 1957. She does not remember the name of the vendor. Sale deed was executed in her favour at Kashmere Gate. She denied the suggestion that she is not the owner of the property nor she has any right, title or interest in the said property.
She further deposed that she has three other tenants in the entire property and she has also filed eviction petition against them. There is house of Sh. Ranjeet Rai on the one side of her house adjacent to her house, which is a residential house. There is one house of Gujar adjacent to her house and has a shop, again said there are two shops and there are no other shops in her Gali and in her Gali Sh. Ranjit Rai is running a factory and some other Muslims are also running their factories. She denied the suggestion that she does not require more accommodation for residential purpose. She also denied the suggestion that she has sufficient accommodation for her residence. She further deposed that married daughter of her son Surender is residing in her matrimonial house and son of said Surender namely Devish got 21 years of age who resides with her and is employed in Railways. She denied the suggestion that Surender and his family are not dependent upon her for the purpose of residence.
For her son, Narender it is deposed that she has only one daughter who is married and residing in Ghaziabad and she denied the suggestion that Sh. Narender is not residing with her. Similarly, it is denied that her third son is not residing with her. She also denied the suggestion that family of Anil, his son is not dependent upon her for the purpose of residence.
She further deposed that her daughter, Smt. Radha is residing with her for about 15 years and she has given place to her out of love and affection and has executed a gift deed in her favour for about three years back. She denied the suggestion that she has not gifted the yellow portion to Radha and she also denied the suggestion that she has tried to take false plea by showing yellow portion in possession of Radha.
She admitted that one room has been vacated by tenant is in possession of her son Rajinder and she is not using the green portion on the first floor, above the blue portion in the site plan Ex. PW1/1. Nobody is using the said portion because the same is in bad condition. But she admitted as correct that one Bengali tenant is residing in the blue portion below the open terrace. She further deposed that Corporation has not given any notice to eliminate the condition of the property. However, she has written to the Corporation in this regard and she has told the Bengali tenant many times to vacate the tenanted premises, but she admitted that she has not given any notice to Bengali tenant nor she has filed any eviction petition against the said Bengali tenant. She admitted as correct that she owner of the premises in which factory is being run by Ranjeet Rai and the same is having no. 355/43A. She did not mention the number in her petition and in that premises No. 355/43A there is only one room and other portion is covered with tin sheets. There is no vacant accommodation in that portion. She also admitted that portion shown in black in the site plan Ex. PW1/R1 is with one Babar and she has given the said portion after getting it re-constructed. The said portion was re-constructed 1 ½ years ago and given to Babar. She also admitted as correct that this portion is two storied and further she volunteered that one hall on the ground floor and room on the first floor. She also admitted as correct that house is possession of Sh. Ram Swaroop is owned by her. But she volunteered that suit for possession has been filed, which has been decreed but possession of the same has not been handed over to her so far. She further submitted that she has not placed on record to show that children of Surender are studying, but she deposed that she can produce the said documents. She was directed to file said documents on next date of hearing. "But the same have not been filed."
She has denied the suggestions that she has been using blue portion for residence or that she is using terrace of said blue portion, or that rent of the premises is Rs. 100/- p.m. and not Rs. 300/- p.m. or that respondent is making regular payment of rent and electricity charges or that she is not in requirement of any portion in the said premises for residence or that she wish to re let the same to other tenant on higher rent or that she has filed false petition. She further deposed that she has given notice for the said arrears but she does not remember the exact date as to from which date the respondent, Trilok chand is her tenant. She denied the suggestion that she is deposing falsely.
6. The respondent had died during the pendency of the proceedings and an application was filed for substituting the LR's and as such Smt. Sushila, wife of Sh. Trilok Chand, the respondent has appeared in witness box as RW1 and she has deposed in terms of written statement filed by her husband stating there in that petitioner is not owner of the suit property nor she has any right, title or interest, she has no bonafide need, her family members as stated by her are not living with her nor they are dependent upon her for the purpose of residence, married daughter of the petitioner are living separately and the petitioner with malafide intention has shown yellow portion of the property in possession of her married daughter Radha just to create false ground of eviction on account of bonafide requirement and she with malafide intention has shown blue portion in the site plan in dilapidated condition. But infact the said portion is in good condition and is habitable. She has also filed her own site plan Ex. PW1/R1 and R2 and she further deposed that the portion shown in the site plan has been re let by the petitioner for commercial purpose/hotel to one Babar instead of using the same for her residence or for the purpose of residence for her family members and further she has generally deposed almost on the terms of written statement filed by her husband.
RW1 was cross examined by Ld. counsel for the petitioner at length and in her cross-examination she deposed that premises was let out by the petitioner Pushpa Devi to her husband in her presence in the year 1980 and no other person except the petitioner has claimed, at any point of time, the rent from her nor nobody has ever claimed to the owner of the property and she admitted that Pushpa Devi is owner / landlady of the suit premises.
She deposed that she is tenant in respect of one room as shown red on the ground floor in site plan Ex. PW1/2 and Sh. Phool Chand is a tenant to right and left side of her tenanted premises. She admitted as correct that in room mark A, Surinder, the eldest son of the petitioner alongwith his wife and two children namely Devesh (son) and Shila (daughter) are residing. The age of Shilpa is 18-19 years and the age of Devesh may be about 20 years and all the four persons used to reside in the room mark A and she also admitted that they cook their meals, take bath and do all their necessary course in this very room mark A. They have no separate kitchen or bathroom. But she denied the suggestion that Shilpa and Devesh are studying.
She also admitted as correct that second son of the petitioner is residing in room mark B in the site plan Ex. PW1/1 and her married daughter used to live at her marital home. She also admitted that room mark C in the site plan is occupied by the petitioner and mark D is the store which is lying vacant.
She also admitted that third son of the petitioner is of unstable mind and he is not residing in room mark E in the site plan Ex. PW1/1. She admitted as correct that said son wanders on the road.
She also admitted as correct that daughter of the petitioner, Radha resides on the ground floor in the portion shown in yellow colour in the site plan Ex. PW1/1. The petitioner has got constructed the same for her daughter Radha and has gifted her.
She also admitted as correct that the portion shown in blue colour, Radha Kundu is a tenant and remaining portion shown in blue colour is lying vacant for the last 7-8 years. She also admitted as correct that the entire building is in dilapidated condition. She also admitted that level of the road is higher and the level of the house floor is lower and the water from the street flows into the house as Pucca road has been constructed by MCD in front of the house.
She does not know the house of petitioner is near the Mosque. She cannot say whether the said house bears no. 355/43A. She admitted as correct that the said house is occupied by Muslim tenants. She also admitted as correct that there is Mosque nearby and non-vegetarian food is cooked at that place. She also admitted as correct that factory is being run by LR's of Ranjit Rai. She further deposed that she does not know whether another house was owned by the petitioner and there was litigation against one Ram Swaroop who was occupying it. She also does not know whether Ram Swaroop has filed an appeal against order of the possession against the order of the lower court or whether an appeal is still pending or not or whether decree was passed after filing of the present petition. She also does not know whether besides the above mentioned property the petitioner owns any other property in that area or elsewhere.
She further admitted that petitioner's sons Narinder, Surender and Rajinder used to live with their mother in the suit premises and she does not know if they are having other accommodation or not.
Kamla was tenant in respect of one room which is now lying vacant, she does not know when she has vacated the said room. She also cannot say whether the petitioner has got more accommodation than shown in green on the first floor and mark E on the ground floor as shown in Ex. PW1/1. She further deposed that petitioner has more accommodation which is lying vacant. She denied the suggestion that she is deposing falsely.
7. RW2, is the son of the respondent Sh. Trilok chand and he has also deposed almost on the lines of the statement made by her mother, RW1. He deposed that petitioner is not in bonafide need of the disputed premises and her intention is malafide and she has not disclosed her other properties under her possession and ownership. He was cross examined at length by Ld. counsel for the petitioner and he in cross- examination he deposed that he does not know English language and does not know as to what is written in his affidavit. Her father has taken the suit premises on rent from smt. Pushpa Devi and used to pay rent to her. He also admitted as correct that Surinder and his family comprises his wife and two children Divesh and Shilpa were residing in the room mark A. He denied the suggestion that Surinder and his family resides in the said room upto date. But he does not know where they reside and where they have gone.
He also admitted that second son of petitioner, Narender resides in room mark B in abovesaid site plan. Room mark D is store combination of two rooms. He admitted as correct that petitioner resides in the room mark C. Two rooms mark X and Y in the site plan are in possession of one tenant Phool Singh against whom eviction petition is pending. Room mark E was earlier in possession of one Kamla who has vacated the same during the proceedings of present petition. He also admitted as correct that son of the petitioner, Rajinder is of unstable mind and he cannot make any difference in respect of things while eating. But he denied the suggestion that he is kept alone is room mark E in view of his condition.
He also admitted that petitioner has three married daughters and her daughter Radha alongwith her family resides in the portion shown yellow colour and she is residing there for last about three years. He also denied the suggestion that petitioner has gifted that portion to her daughter.
He also admitted that one Bengali is a tenant in the portion shown in pink colour in the site plan. He denied the suggestion that level of the portion shown in blue colour is lower than the street level but admitted as correct that in rainy season water flows in the said premises and the rooms in the blue portion are vacant and lying locked for last 15 years. He denied the suggestion that building is in dilapidated condition and accordingly the same is lying vacant. He also admitted as correct that tenanted portion of Sh.Ranjit Rai is in possession of legal heirs of Sh. Ranjit Rai and the said property is part of property No. 355/43A and in the said building there were four rooms under the tenancy of four Muslim tenants. He also admitted that there is a Muslim restaurant Babar and there is another restaurant/hotel on the ground floor of the mosque where meat is prepared every day. He also admitted as correct that petitioner had got decree of possession against Ram Swaroop but he does not remember whether any matter is still pending or not. He has generally denied all the suggestions.
8. RW3, Narender also is the son of the respondent and he has also deposed on the lines of RW1. He was also cross examined by Ld. counsel for the petitioner and in his cross- examination RW3 has stated that his affidavit which discloses his age 24 years is correct. He can read and write Hindi. He does not know his date of birth. He resided in one room on the ground floor in property bearing No. 1200, Multani Mohalla, Gandhi Nagar, Delhi. He cannot say whether room under his tenancy is measure 9'x8'. He has not measured the same at any point of time. He does not know when his father has taken the premises on rent from Pushpa Devi and was continuously paying rent to the petitioner and after the death of his father, they are paying rent to the petitioner. He admitted as correct that petitioner has three sons namely Surinder, Narender, Rajender are surviving and fourth son Anil Kumar has died. He admitted as correct that to the right and left of the tenancy premises, one Phool Chand is the tenant in two rooms and no person other than the petitioner has ever claimed ownership of the tenanted premises but according to him petitioner is not the owner.
He cannot say even by idea that what is the age of the children of Surender. He has never seen wife of Surender. He does not know the language of Site plan. He even cannot identify the room where he is living after seeing the site plan Ex. PW1/1. He cannot say specifically as to who is residing particularly on the first floor. He cannot recollect the name of the person / tenant who was occupying the room just adjacent to the shop which is marked X in the site plan.
He also admitted as correct that Rajinder, son of the petitioner is residing in room marked A. He also admitted as correct that Radha alongwith her children is residing in the portion as shown yellow in the site plan and one room is in possession of other tenant Radha Kundu and he volunteered that the said portion is in quite dilapidated condition. He further volunteered that there is still further accommodation which is in dilapidated condition consisting of three rooms and they are lying vacant. He also admitted as correct that there is Mosque in front of the property of petitioner having No. 355/43A and there are three hotels around the Mosque which are being run by Muslim occupants and non vegetarian dishes are cooked and served there. He denied the suggestion that all the three children of the petitioner are residing with her in the suit premises. He does not know where Surinder and Narender are residing. He denied the suggestion that suit premises required by the petitioner for her bonafide purpose as well as residence for herself and her family members dependent upon her.
9. I have heard the arguments and perused the record.
10. In order to claim eviction U/s 14(1)(e) read with section 25(B) of the DRC Act , a landlord has to plead and prove the followings ingredients:-
a. that he is owner/landlord of the suit premises; b. that the suit premises were let out for residential purposes;
c. that the petitioner has no other reasonably suitable residential accommodation; and d. that the premises are required bona fide by the petitioner for occupation as residence for himself or for any member of his family dependent upon him for the purpose of residence.
11. As far as the first ingredient as to whether the petitioner is owner/landlord of the suit premises is concerned, the petitioner claims that she is owner/landlady of the suit property and the respondent is tenant under her. The respondent in the written statement has disputed it. The petitioner in her evidence has deposed that she has purchased the property and documents were got registered at Kashmere Gate. But she has not filed any document of ownership on the court file. Further, the cross-examination of the respondent is quite intersting and in her cross- examination, RW1 has admitted petitioner has owner. RW2 and RW3 have also admitted that since inception of the tenancy, the rent is being paid to the petitioner and no one other than the petitioner has claimed ownership for the suit premises. Even otherwise, law with respect to ownership is well settled as far as Section 14(1)(e) of the DRC Act is concerned and it is held in various judgments that the proof of ownership in eviction petition U/s 14(1)(e) of the DRC Act is not so strongly required by the petitioner as it is required to be proved in title suit. In this regard reference can be made to the following judgments:-
a) In Sushila Kanta Vs. Rajeshwar Kumar, 1980, RLR 289, it was held that an owner U/s 14(1)(e) of the DRC Act need not be an absolute owner requiring sale deed in his favour contemplated by the general law in Section 54 TP Act, it is enough, if he has paid for and built tenancy premises. He may also be owner by virtue of contract i.e. sale agreement and Power of Attorney in his favour. A restricted meaning can not be given to "owner" for the purpose of the Act. It is observed that the respondent has merely denied that the petitioner is not owner of the suit property. However, he has not specified as to who is the owner of the suit property.
b. B.K.Gupta Vs. Sudarshan Chaudhary, 2000(1) RCR 53, wherein the premises were alloted to the landlord by the government on hire purchase basis and the landlord has given the premises on rent. It was held that tenant can not claim that the landlord was not owner of the suit property.
c. Smt. Parvati Devi Vs. Mahinder Singh, 1996(1), AIRCJ, 583, wherein, it was held that for the purpose of this provision the question of title has to be viewed in light of the fact that tenant is not rival claimant of title.
d. Satya Malhotra Vs. Mohinder Singh Arora, 1997(2) RCR 645, wherein in a case U/s 14(1)(e) of the DRC Act, it was held that rent court is not court to decide title of the parties and that the tenant cannot challenge title of subsequent purchaser.
In this matter, the petitioner is claiming herself landlady/owner of the tenanted premises and the respondent is admitting the same in his cross-examination and it is also admitted by the respondent/LR's of the respondent that none other than the petitioner has ever claimed ownership and therefore, from all these facts, it is clear that petitioner is landlady/owner of the tenanted premises.
12. Now coming to the fact whether the suit premises was let out for residential purpose. This facts has not been disputed by the respondent, therefore, this does not require much deliberation.
13. Now coming to the fact that the premises are required bona fide by the petitioner for occupation as residence for himself or for any member of his family dependent upon him for the purpose of residence. The petitioner has claimed in her petition that she requires the tenanted premises bonafide for the purpose of her residence as well as for her family members. The petitioner has deposed that she has four sons and three daughters, out of four sons one has died. Her son Surender and Narender are residing with her and one of her son namely Rajinder is of unstable mind and he requires separate room so as to avoid any incident. She has also deposed that yellow portion shown in the site plan has been given to her daughter, where she is residing. The portion shown in blue colour is in dilapidated condition. Ld. counsel for the respondent has denied all these facts in the written statement. The petitioner has deposed all these facts in her evidence and in cross-examination she admitted that the MCD has not issued any notice to her so far with respect to her dilapidated condition of the portion shown as blue or that she has given the portion shown yellow in the site plan just to create paucity of the accommodation or just to get eviction of the tenanted premsies or also she is in possession of another property bearing No. 355/43A which she has not explained in the petition and as such her need is not bonafide. The respondent in all three affidavits in evidence filed by RW1 to RW3 have deposed on these lines but in cross-examination could not stand on their defence taken by them in the written statement or stated by them on oath in the affidavit. RW1 has categorically admitted that portion shown as blue is in dilapidated condition and no one is residing there for the last 15 years. The court is of the opinion that no landlord can afford to leave any portion for 15 years, if the same is worth habitable and even if the petitioner / owner is not residing over said portion, the same could have been let out to some other tenant. It is not the case of the respondent at all that the portion as shown in blue colour is being given to the various tenants from time to time or that various tenants are coming and going out from the portion as shown blue in the site plan Ex. PW1/1. It is specifically admitted by RW1 that son of petitioner Surender is residing only in one room. RW2 and RW3 however stated that these sons are not residing with the petitioner. But they are unable to depose as to where they are residing, if they are not residing at this place. The number of family members has not been disputed. The extent of accommodation is also not disputed. As far as, the contention that the petitioner has given yellow portion to one of her daughter is not disputed. But the contention of the respondent is that it has been given to Radha, her daughter just to create paucity of accommodation. The court is of the opinion that no doubt, if the petitioner would have been shortage of accommodation, then the gifting of the property to one of the daughter is somehow gives the strength to the contention of Ld. counsel for the respondent. But simultaneously it is correct that in the traditional as well as modern society where we are living, gifting the property to one of the daughter is not an abnormal fact. It has not been pointed by Ld. counsel for the respondent that the husband of the respondent is a well to do person or that they have been residing in the tenanted premises only to support the petitioner for getting the tenanted premises evicted. There is no such evidence which can be appreciated. Mere allegations are not sufficient. Therefore, by mere putting allegations and then not proving it, although the intention has some force in it, but non proving of such contention amounts to conceding of such contention and the respondent has also not been able to prove that the portion gifted to her daughter by the petitioner was just to create paucity of accommodation. Visiting of relatives or daughters or grand daughters is not abnormal phenomena and they do visit. It is also matter of record that petitioner is an old lady and has additional accommodation which is bearing no. 355/43A, Multani mohalla, Gandhi Nagar, Delhi is owned by the petitioner, but definitely it has come on record that said property is surrounded by Muslim Hotels and non-vegetarian food is generally cooked and served there and therefore, inability of the petitioner to reside there or settle her family in a way that some of the members shift to other place or some of the member remain at other place cannot be suggested by the respondent / tenant. It is the prerogative of the petitioner herself that where to reside and how to reside and although she at her own Will can partition the property and can suggest that either of the son may live at a distant place, but when tenants submits that petitioner should live in particular fashion or in a particular way, this contention of the tenant/respondent cannot be appreciated. The law with respect to bonafide requirement is well settled.
Bona fide means genuine that is done or carried out in good faith. It was observed in Lalit Kumar Vija Vs. Saroj Kumari 1969 RCR 555.
"The meaning of bona fide in this context appears to be two fold. Firstly, the need must be a genuine one and not a frivolous one. The second aspect of the bona fide is that the landlord is not motivated by extraneous consideration in trying to recover the possession from the tenant"
In Om Prakash Singhal Vs. Roshan Lal Khana, 1969 RCR 391, it was observed :-
"As a broad workable rule, the landlord must be left to assess his requirement in the background of his position , circumstances, status in the life and social and other responsibilities and relevant factors. "
In judging his special needs and convenience certainly the landlord would have a choice. This does not ,however, mean that whatever the landlord decides about his own needs would be beyond question by the Rent Control Authorities. For, whether the need of the landlord is bona fide is to be judged not by the landlord himself but by the Controller. In Neta Ram Vs. Jeewan Lal , AIR 1963 (SC) 499, it was observed that a clear distinction has to be borne in mind that what the provisions refer to is the bonafides of the claim of the landlord and not the bonafides of the landlord. The distinction between the two lies in the fact that the landlord may honestly feel the requirement but it is not borne out by pleadings and surrounding circumstances. In the circumstance, the claim would not be genuine although the landlord's bonafides exist. According to this distinction, even if bonafides., the landlord's requirements has to be reasonable. The controller has to be satisfied about the genuineness of the claim. To reach this conclusion, obviously the Controller must be satisfied about the reality of the claim made by the landlord, and this can only be established by looking at all the surrounding circumstances. In determining whether the claim is bona fide, the court is entitled and indeed bound to consider whether it is reasonable. The time honored notion that the right of re-entry is unfettered and that the owner landlord is the sole judge of his requirement has been made to yield to the needs of society which had to enact the Rent Acts specifically devised to curb and fetter the unrestricted right of re-entry and to provide that only on proving some enabling grounds set out in the Rent Act the landlord can re-enter . One such ground is of personal requirement. The convenience of the landlord, though not a matter exclusively within his discretion, cannot be totally ignored. The choice made by the landlord is open to scrutiny.
Therefore, the court is of the opinion that in these circumstances, the respondent has failed to prove that petitioner is not in bonafide need of the tenanted premises. Therefore, the petitioner has been able to prove this ingredient also.
14. Now coming to the aspect as to whether the petitioner does not have any alternative residential accommodation with her. The petitioner in her petition has submitted that she has no other alternative residential accommodation at Delhi or anywhere in India except the suit property, the premises shown in blue is in dilapidated condition and also belongs to the petitioner which is adjoining to the house of the petitioner and where one Bengali tenant is living in one of the rooms, which is shown in pink in the site plan, and the petitioner is also owner of one premises which is in the occupation of sons of late Sh. Ram Swaroop against whom a suit for possession is pending in the court. The respondent has not denied this aspect but he simultaneously submitted that the petitioner is also owner of property bearing No. 355/43A. The same is not disputed by the petitioner but it is submitted that there are non vegetarian hotels surrounding that premises and the petitioner and her family members are strictly vegetarian persons. In view of this admission it is clear that petitioner is not able to reside near the Muslim Hotels, although it is admitted fact she is owner of the said property. It is the right of the petitioner to choose the property where she wants to reside. Therefore, from the evidence, it is clear that it is only suit property which is with the petitioner for the purpose of residence. In M/s Precision Steel &Engineering works Vs. Prema Deva Niranjan Deva Tayal 2003(1), RCR 48(SC) it was inter alia held that the plea of having alternative accommodation by the landlord is generally taken by the respondent / tenant to delay the proceedings and the Court had to be vigilant and must take care that respondent must give proof and number of particular accommodation which according to him is with the petitioner / landlord. In view of the aforesaid, it is therefore, held that the respondent has not been able to prove that the petitioner have any other reasonably suitable residential accommodation in Delhi.
15. Ergo, the petitioner has been able to prove her case U/s 14(1)(e) of the DRC Act. Consequently, eviction order is hereby passed in favour of the petitioner and against the respondent in respect of the suit premises room no. 3 on the ground floor, with common verandah and common latrine in premises bearing No. IX/1200, Multani Mohalla, Gandhi Nagar, Delhi-31 as shown in red colour in the site plan, Ex. PW1/1. However, this order shall not be executed and the respondent shall not be evicted from the suit premises before expiry of a period of six months from today. The respondent is directed not to part with possession of the suit property in favour of any third party or cause any damage to the same and to continue to make regular payment of rent etc. to the petitioner. No order as to cost. File be consigned to the Record Room.
(S. S. Malhotra)
Addl. Rent Controller,
Announced in the open Karkardooma Courts,
court today i.e. 16.3.07 Delhi.