Delhi District Court
Smt. Shanta Batra vs Sh. Balwant Singh on 9 December, 2014
1
In the Court of Ms. Namrita Aggarwal
CCJ Cum Additional Rent Controller1 (Central)
Tis Hazari Courts, Delhi.
Case No. E 486/13
Unique I.D. No. 02401C0312832013
In the matter of :
Smt. Shanta Batra
B458, Ground Floor,
Meera Bagh, Paschim Vihar,
New Delhi. ...........Petitioner
Versus
Sh. Balwant Singh
16/9, First Floor, New Rohtak Road,
Karol Bagh, New Delhi. ...........Respondent
ORDER
09.12.2014
1. Vide this order, I shall dispose off the application moved by respondent for grant of leave to defend the eviction petition filed by the petitioner u/s 14(1)(e) Delhi Rent Control Act, 1956 [in short, 'the Act']. Page 1 of 20 Smt. Shanta Batra Vs. Sh. Balwant Singh E. No. 486/13 2
2. Eviction petition has been filed by the petitioner Smt. Shanta Batra against the tenant/respondent Sh. Balwant Singh in respect of the tenanted premises, i.e., one house at first floor, 16/9, New Rohtak Road, Karol Bagh, New Delhi, as shown in colour red in the site plan annexed alongwith the petition on the ground of bonafide requirement under Section 14 (1) (e) of the DRC Act.
3. The case of the petitioners is that the the petitioner is the owner/landlady of the suit premises having purchased the same from the erstwhile owner late Smt. Mohinder Kaur by way of a Will dated 21.02.1986. The said property was also mutated in the name of the petitioner. It is averred that the respondent continued to be a tenant with the petitioner and has paid rent very irregularly and that too not since last more than a decade. It is averred that the suit premises is bonafidely required by the petitioner as family members of the petitioner have increased with passage of time and current accommodation is gravely ill equipped to cater to present family members. It is further submitted that the petitioner is an old lady of 61 years and does not have any other suitable accommodation to settle her family members. The petitioner has submitted that she alongwith her husband and two sons, with their own families, are living on rent and another son of the petitioner is living Page 2 of 20 Smt. Shanta Batra Vs. Sh. Balwant Singh E. No. 486/13 3 with his inlaws. It is averred that the ground floor of the tenanted premises has a shop of the petitioner and therefore, the tenanted premises is urgently required by the petitioner for residential purposes as younger son and husband of the petitioner spend a lot of time in commuting from their tenanted residential premises, to and from the said shop on daily basis entailing cost and time involvement. It is further averred that the respondent has willfully indulged in damaging the said property by trying to construct a roof and other fitting making the whole building dangerous for the residents and the neighbours.
On the above stated grounds, the present eviction petition has been filed by the petitioner against the respondent for vacation of the tenanted premises.
4. Summons were served upon the respondent who filed leave to defend application on the following grounds:
a) That the respondent is not the tenant and there exists no relationship of landlord and tenant between the petitioner and the respondent and hence, the present petition is liable to be dismissed. It is averred that the father and grandfather of the respondent were licensee in the suit property with the Custodian of Evacuee Property, Public Works Department, Government of Page 3 of 20 Smt. Shanta Batra Vs. Sh. Balwant Singh E. No. 486/13 4 India and said department issued receipts for payment to government with respect to suit premises and aforesaid license or the tenancy was never revoked nor any cancellation of abovesaid tenancy was made by Government of India and since the license fee for the property in question was very meager, i.e. Rs. 4/ per month, the Government of India, Custodian of Evacuee Property has not been making any interference in the peaceful enjoyment of their properties and now the persons who remained the licensee or the tenants are enjoying the aforesaid properties without paying any occupational charges. It is averred that similarly, the respondent is also enjoying the suit property and the petitioner has no right, title or interest in the said property. The petitioner had also filed similar eviction petition bearing E. No. 03/12 against the grandfather of the respondent late Sh. Ram chand Singh after making false averments there also as are made in the present petition.
b) That the petitioner has relied upon false and fabricated documents wherein the rights of the respondent in property in question are tried to be usurped in connivance with some government officials and some of the documents which have been placed on record are invalid and have got no legal sanctity as Agreement of Sell Page 4 of 20 Smt. Shanta Batra Vs. Sh. Balwant Singh E. No. 486/13 5 dated 21.02.1986 is an incomplete document without the signatures of the party concerned and copy of Will dated 21.02.1986 is also not a valid document as the recitals made in the document are not genuine and are vague and legal requirements of a Will have not been complied with. It is also averred that the executant of the said Will has no right to execute the same as she was not the absolute owner of the suit premises. It is averred that the petitioner has not placed any document on record to prove his right, title or interest in the property in question.
c) That the grandfather and father of the respondent never paid any rent to the petitioner towards the suit premises.
d) That the petitioner has filed an incorrect site plan.
e) That the respondent and his family members are enjoying the suit property since last 60 years and therefore, possession of the respondent is adverse against any person, whosoever including Government of India.
5. Reply to the application for leave to defend has been filed wherein the petitioner has denied all the averments made by the respondent in his leave to defend application stating that it is illogical to suggest that the grandfather of the respondent was, allegedly, licensee or the custodian of Page 5 of 20 Smt. Shanta Batra Vs. Sh. Balwant Singh E. No. 486/13 6 the property in question for the Public Works Department, as alleged. Further, it is averred that at the outset, no such poweres existed ever with the Public Works Department as are sought to be now bestowed by the respondent and all the documents filed by the respondent with respect to the said property do not even pertain to the property in question. It is also averred that the alleged receipts of Rs. 4/ per month, is, in fact, the precise amount of rent which the grandfather of the respondent used to pay to Smt. Mohinder Kaur for the property in question. The petitioner has strongly denied so called connivance with the government officials or alleged invalidity of documents filed by the petitioner. Further, it is stated that the respondent had ignored referring to the receipt of Rs. 48,000/ in favour of Smt. Mohinder Kaur in lieu of the sale of the suit property in favour of the present petitioner. The agreement to sell further mentions that husband of the petitioner and the father of the respondent were tenants of Smt. Mohinder Kaur, from whom the petitioner purchased the property in question and got it mutated in her name. The petitioner has also filed mutation document on record. It is stated that the bald averment which the respondent has alleged about ownership of the premises is also on the basis of alleged license from Public Works Department, which is an organisation which has no right, title and power to grant of such license. The petitioner has also denied to file incomplete Page 6 of 20 Smt. Shanta Batra Vs. Sh. Balwant Singh E. No. 486/13 7 or wrong site plan and stated that the tenant cannot become owner of the premises by virtue of adverse possession.
6. Rejoinder has been filed wherein the respondent has reaverred what was averred by him in leave to defend application.
7. Before appreciating the affidavits and counter affidavits pertaining to application for leave to defend to contest present eviction petition, I must mention here the law of appreciating application/affidavit for leave to defend.
8. Proviso(e) to Section 14(1) is a special provision which has been enacted by the legislature for the class of landlords who require the premises genuinely and their requirements is bonafide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso(e) of the section 14(1) are:
(a) The said premises are bona fide required by the landlord either for himself off or his family member.
(b) The landlord or the family member has no other reasonable suitable accommodation.
These twin thresholds are to be satisfied conjunctively in order to Page 7 of 20 Smt. Shanta Batra Vs. Sh. Balwant Singh E. No. 486/13 8 attract the provisions of section 14(1)(e) and the absence of even one of the said ingredients clearly makes the said provision inapplicable.
The Satisfaction of the two requirements bonafide need and no reasonably suitable accommodation has been time and again emphasized by the Supreme Court of India in several cases and more recently in the case Deena Nath Vs. Pooram Lal, V(2001) SLT 195=(2001)5 SSC705, wherein the Supreme Court observed thus:
"The legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must be in praesenti and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. the legislative intent is made further clear by making the provision that the landlord has not other reasonably suitable residential accommodation of his own in his occupation Page 8 of 20 Smt. Shanta Batra Vs. Sh. Balwant Singh E. No. 486/13 9 in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation . Similar statutory provision is made in Sub section(e) of Section12(1) of the Act in respect of accommodation let unambiguous,the Court is dutybound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable nonresidential accommodation in his occupation in the city/town is available. The judgment/order of the Court/authority for eviction of a tenant which does no show that the Court/authority has applied its mind to these statutory requirements cannot be sustained and the superior Court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bonafide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the Court has to bear in mind the statutory mandate incorporated in Section 12(1)(f). If it is found that the Court has not applied the statutory provisions to the evidence on record Page 9 of 20 Smt. Shanta Batra Vs. Sh. Balwant Singh E. No. 486/13 10 in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding of fact, for such erroneous findings illegally arrived at would vitiate the entire judgment".
9. The principals requiring considerations for grant of leave to defend application in the eviction petition have been laid down by the Hon'nble Supreme Court wayback in the year 1982 in the case of Charan Dass Duggal v. Brahma Nand, 21 (1982) DLT 378 and which have been reiterated in various judicial pronouncements and can be noted thus:
"What should be the approach when leave to defend is sought for? There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would nonsuit the landlord, leave to defend is sought for, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action(see Santosh Kumar V. Bhai Mool Singh). At that stage of granting the leave parties rely in support of Page 10 of 20 Smt. Shanta Batra Vs. Sh. Balwant Singh E. No. 486/13 11 their rival contentions on affidavits and assertions and counterassertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought for on the ground of personal requirement, an absolute need is not to be satisfied but a mere desire equally is not sufficient. It has to be something more than a mere desire. And being an enabling provision, the burden is on the landlord to establish his case affirmatively."
It is also settled that the at the stage of granting leave to defend, the test that is applied is whether in the facts disclosed in the affidavit, filed seeking leave to defend, prima facie shows that the landlord would be dis entitled to obtain an eviction order and not, where at the end, the defence taken by the tenant may fail. If the application filed under Section 25B disclosed some substantial triable issues, then it would be grave injustice to brush them outrightly, without testing the veracity of the claims made by the tenant/applicant. The law in this regard is well settled in various pronouncements and reference can also be made to Inderjeet Kaur V. Nirpal Singh, VII(2001) SLT 602=(2001) 1 SCC 706, wherein it was held as under:
Page 11 of 20 Smt. Shanta Batra Vs. Sh. Balwant Singh E. No. 486/13 12
" A landlord, who bona fidely requires a premises for his residence and occupation should not suffer for long waiting for eviction of a tenant. At the same time, a tenant cannot be thrown out from a premises summarily even though prima facie he is able to say that the claim of the landlord is not bona fide or untenable and as such not entitled to obtain an order of eviction. Hence the approach has to be cautious and judicious in granting or refusing leave to defend to a tenant to contest an eviction petition within the board scheme of Chapter IIIA and in particular having regard to the clear terms and language of Section 25B(5)".
Further, there is also no dispute with regard to legal proposition that if the tenant bring up some well fonded and worth considering subsequent events to the notice of the Court, these need to be considered, and not ignored, for the purpose of examining and evaluating the bona fide requirements of the tenanted premises of the landlord. Reference can be made here to the decision of the Supreme Court in the case of Hasmat Rai V. Raghunath Prasad, (1981) 3 SCR 605, wherein it was held that:
"If the tenant is in a position to show that the Page 12 of 20 Smt. Shanta Batra Vs. Sh. Balwant Singh E. No. 486/13 13 need or requirement no more exists because of subsequent events, it would be open to him to point out such events and the Court including the appellate Court has to examine, evaluate and adjudicate the same. Otherwise the landlord would derive an unfair advantage. An illustration would clarify what we want to convey. A landlord was in a position to show he needed possession of demised premises on the date of the suit as well as on the date of the decree of the trial Court. When the matter was pending in appeal at the instance of the tenant, the landlord built a house or bungalow which would fully satisfy his requirement. If this subsequent event is taken into consideration, the landlord would have to be nonsuited. Can the Court shut its eyes and evict the tenant? Such is neither the spirit nor intendment of Rent Restriction Act which was enacted to fetter the unfettered right of re entry. Therefore when an action is brought by the landlord under Rent Restriction Act for eviction on the ground of personal requirement, his need must not only be shown to exist at the date of the suit, but must exist on the date of the appellate decree, or the date when a higher Court deals with the Page 13 of 20 Smt. Shanta Batra Vs. Sh. Balwant Singh E. No. 486/13 14 matter. During the progress and passage of proceeding from Court to Court if subsequent events occur, which if noticed would non suit the plaintiff, the Court has to examine and evaluate the same and mould the decree accordingly".
10. Though, I am conscious of the fact and to which, there is no dispute that the landlord is the best judge of his affairs and also choices, and the tenant cannot dictate as to how the landlord has to live and utilize his premise; but, at the same time, it is also settled principles of law in such cases that the mere wish or desire of the landlord or his decision to get the tenanted premises vacated is not the decisive factor. It is not that whatever he would say, in every case, would be taken to be a gospel truth. If that was so, then, on the mere asking of every landlord that he needs the premises for setting up an office for his or his family member's business and he is the judge and master of his decisions and choices, the statutory protection afforded to the tenant, would become meaningless. That is not the intent of the legislation. The applicability of above proposition is only after the landlord is able to demonstrate that his assertion of requirement of the tenanted premises is authentic and genuine. If he is able to show and demonstrate so, then certainly neither Page 14 of 20 Smt. Shanta Batra Vs. Sh. Balwant Singh E. No. 486/13 15 the tenant nor this Court could dictate terms upon him as to how and in what manner he should utilize his premises. The projected requirement of the tenanted premises, based on his subjective decision, is required to be tested by the Court.
11. In the present case, the respondent has only disputed the ownership as well as landlordtenant relationship between the petitioner and the respondent. No dispute has been raised with respect to bonafide requirement of the petitioner or the existence of any alternative suitable residential accommodation available with the petitioner to meet her bonafide requirements. Hence, bonafide requirement and non existence of any alternative suitable residential accommodation has remained unrebutted and thus, proved.
Ownership as well as landlordtenant relationship.
12. In the present case, the respondent has averred that the petitioner is neither the owner nor the landlady of the tenanted premises and that the grandfather of the respondent was the licensee in property in question with the Custodian of Evacuee Property, Public Works Page 15 of 20 Smt. Shanta Batra Vs. Sh. Balwant Singh E. No. 486/13 16 Department, Government of India and receipts were also issued by Public Works Department upon the father and grandfather of the respondent payment to Government the said licensee fees. It is further averred that the said license or the tenancy was never revoked or cancelled by Government of India and no interference was ever made in the peaceful enjoyment of the suit property by Custodian of Evacuee Property, Government of India, due to which the respondent was enjoying the property in question. It is further averred that the petitioner has no right, title or interest in the property. It is also stated by the respondent that a similar eviction petition was also filed by the petitioner against the grandfather of the respondent on the same grounds, which was later withdrawn. Per contra, it is averred by the petitioner that he is lawful owner of the suit premises having purchased the same from the erstwhile owner Smt. Mohinder Kaur. The petitioner has also filed copy of the Will, by which the said property was purchased alongwith Agreement to Sell and a receipt of Rs. 48,000/ which was paid by the petitioner to late Smt. Mohinder Kaur, for alleged sale of the suit property.
13. I have gone through the record and heard the contentions of both the parties.
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14. The claim raised by the respondent regarding being a licensee of the Custodian of Evacuee Property, Government of India has been substantiated by him by way of documents, i.e., Receipts issued by Public Works Department for payment to government by the grandfather and the father of the respondent. Perusal of the copy of the receipts which have been filed by the respondent clearly show that these payments were made by the respondent or his predecessorininterest to Public Works Department, Government of India, with respect to property no. 16/6 or 16/5 and not with respect to the suit property, the address of which is 16/9, New Rohtak Road, Karol Bagh, Delhi. None of the receipt filed by the respondent pertains to property bearing no. 16/9, New Rohtak Road, Karol Bagh, Delhi. The alleged electricity bills filed by the respondent of his predecessorininterest also pertains to property no. 16/3, Rohtak Road, New Delhi. The respondent has also filed one house tax receipt issued by MCD with respect to property no. 16/9, New Rohtak Road, Karol Bagh, Delhi in the name of the respondent but it is a clear settled law that a mere house tax receipt does not entitle any person any right, title or interest in the property by paying the house tax. The respondent has himself filed one complaint which was made by him to BSES, Yamuna Power Ltd. with respect to one inspection conducted by BSES wherein, respondent was shown to be the tenant of Mr. R. N. Page 17 of 20 Smt. Shanta Batra Vs. Sh. Balwant Singh E. No. 486/13 18 Batra, disputing the said tenancy and claiming himself to be the owner of the said premises. This is the only document which pertains to property no. 16/9, New Rohtak Road, Delhi, wherein, respondent is shown to be the tenant of Sh. R. N. Batra in the Assessment Report, against which a complaint was also filed by the respondent to BSES. However, no receipt or endorsement has been filed by the respondent to prove that the said complaint was infact posted by the respondent to the said department. Thus, the respondent has not been able to prove his ownership rights over the suit property by way of any documentary evidence. Per contra, the petitioner has filed registered Deed of Partition, by which property no. 16/8 and 16/9 assigned to Smt. Mohinder Kaur as the sole owner. Thereafter, the petitioner has also filed Agreement to Sell, by which the suit property was sold by Smt. Mohinder Kaur to the present petitioner. However, the said Agreement to Sell has not been properly executed as there is no signature of party no. 2 or witnesses on the said document and therefore, the said document is not legally enforceable. However, the petitioner has also filed a registered Will, by which Smt. Mohinder Kaur had assigned the property in question in favour of Smt. Shanta Batra, i.e., petitioner in the present petition. The said Will is duly registered and receipt of Rs. 48,000/, by which Smt. Mohinder Kaur had sold the suit property to the present petitioner. The Page 18 of 20 Smt. Shanta Batra Vs. Sh. Balwant Singh E. No. 486/13 19 said document has been signed by Smt. Mohinder Kaur. The petitioner has also filed copy of mutation document, by which the suit property has been mutated in favour of the petitioner and also an indemnity bond executed by the petitioner in favour of Government of India undertaking to indemnifying the government with respect to the suit property against all the claims or harms whatsoever. The said document is duly signed by the executant and the witnesses. Perusal of this document clearly shows that the suit property has been mutated in the name of the petitioner by virtue of Will as well as Receipt of payment and Indemnity Bond has been filed by the petitioner in favour of Government of India undertaking to indemnify the government with respect to the suit property against all the claims or harms whatsoever. By way of this document, the petitioner has been able to prove her ownership or title over the suit property and said proof is anyway better than the title if any, alleged by the respondent with respect to the said property. The respondent, on the other hand, has miserably failed to prove any right, title or interest over the suit property by way of any documentary evidence. Hence, ownership of the petitioner is proved by way of balance of probability and the respondent is estopped from denying the ownership of the petitioner over the suit premises. In these circumstances, ownership as well as landlordship of the petitioner over the suit property is proved. Since, the bonafide Page 19 of 20 Smt. Shanta Batra Vs. Sh. Balwant Singh E. No. 486/13 20 requirement and nonexistence of alternative suitable residential accommodation has not been disputed by the respondent, the same are deemed to be admitted in favour of the petitioner.
15. Thus, from the discussion made above, respondent have failed to raise any triable issue, which requires evidence to be proved. The petitioners, on the other hand, have clearly established their bonafide requirement regarding tenanted premises. Hence, the application for leave to defend filed by respondent is ordered to be dismissed. Consequently, eviction order is liable to be passed against the respondents u/s Section 25 B (4) of the Act. In view of above, petitioner is held entitled for recovery of the tenanted premises, i.e., one house at first floor, 16/9, New Rohtak Road, Karol Bagh, New Delhi, as shown in red colour in the site plan annexed with the petition. However, the petitioner would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act.
Announced in open Court (Namrita Aggarwal)
on 09 Day of December, 2014.
th
CCJ cum ARC1 (Central)
[This order contains 20 pages.] Tis Hazari Courts, Delhi.
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