Delhi District Court
Smt. Femida Begum vs Mohd. Ahmed @ Munna on 29 November, 2013
IN THE COURT OF SH. M. P. SINGH: ADDITIONAL RENT CONTROLLER,
(SOUTH EAST), SAKET COURT, NEW DELHI
EV 14/13
Unique case ID No. 02406C0103042013
Smt. Femida Begum,
W/o Late Sayeed Khan,
R/o B278, Goga Street,
Bawli Gate, Nizamuddin, New Delhi ........... Petitioner
Vs.
Mohd. Ahmed @ Munna,
S/o Late Shaukat Ali,
B278, One of the shops at Ground Floor,
Goga Street, Bawli Gate, Nizamuddin.
Also at
R/o 66, Musafir Khana,
Hazrat Nizamuddin, New Delhi ......... Respondent
Date of institution 23.04.2013
Arguments heard on 19.11.2013
Date of order 29.11.2013
ORDER
1. This order shall decide the question whether the respondent be granted leave to contest the instant eviction application under clause (e) of proviso to section 14 (1) of the Delhi Rent Control Act, 1958 (for short 'the Act').
2. Petitioner, a senior citizen aged 65 years, is a widow. She is more than 80% handicapped. In the year 1998 her late husband Sayeed Khan let out a shop on ground floor (measuring 10' X 9') in B278, Goga Street, Bawli Gate, Femida Begum vs. Mohd. Ahmed @ Munna Page 1/10 Nizamuddin, Delhi (as shown in the site plan bounded by red colour) to respondent's late father. Petitioner's late husband transferred the premises to the petitioner vide general power of attorney documents executed in her favour just prior to his demise. Petitioner is living on the first floor of the premises with her two daughters and a son, namely, Firoz. The daughters are ladies tailors. They are maintaining the petitioner by doing tailoring work. One of her daughters, namely Farhana Khan, is unmarried and unemployed. She states that she requires the shop in question bonafidely in order to settle her unmarried daughter Farhana to do tailoring work so that there can be sufficient financial assistance. On the ground floor there are two shops and one guest room. The shop, qua which the present eviction petition is filed, is with the respondent at monthly rent of Rs. 1,000/ excluding electricity and water charges and the adjacent shop is with another tenant, namely Mohd. Yunus. A guest room, just behind the shops, is in possession of Naseem Khan, petitioner's soninlaw. Petitioner states that her son inlaw Naseem Khan was given the guest room by her late husband by executing a will. Petitioner avers that she has no other residential premises or shop except her own house. She goes on to state that she has no other source of income for her medical treatment, food, medicines and other facilities. She has also filed an eviction petition for the shop under the tenancy of Mohd. Yunus. On these grounds the present petition was filed.
3. Summons was served upon the respondent on 06.05.2013. Respondent filed his application along with his affidavit seeking leave to contest on 20th May, 2013.
4. In his affidavit, the respondent took up the following grounds seeking Femida Begum vs. Mohd. Ahmed @ Munna Page 2/10 leave to contest the present matter: (A) Petitioner in her legal notice dt. 10.01.2013 sent to the respondent stated that her daughter Farhana Khan, aged 28 years, is of marriageable age and as such she does not require the shop bonafide to start ladies tailoring work. Farhana is qualified lady, giving tuitions to children in nearby area. She is also a pardanashin lady. (B) Firoz, petitioner's son is disobedient. He is an earning member of the family, but he does not reside with the petitioner. (C) Documents filed by petitioner are forged and fabricated. (D) Petitioner has another property bearing no. T144, Hata Kambal Pash, Basti Nizamuddin, New Delhi measuring about 125 sq. yards having three vacant shops. (E) Tenancy stood terminated vide notice dt. 10.01.2013 thereby bringing to an end the landlordtenant relationship and as such the present petition under the Act is not maintainable. (F) The backside portion of the tenanted shop is vacant and Ms. Farhana Khan can very well carry out her ladies tailoring work from there. She being a pardanashin lady ought not sit in the shop in question. (G) Naseem Khan, petitioner's soninlaw is residing at some other property (T33, 3rd Floor, Mirza Galib Road, opposite Lal Mahal, Nizamuddin, Delhi).
5. Petitioner filed her reply to the leave to defend application with her counteraffidavit, which is essentially a reiteration of the contents of the petition. In addition thereto, the petitioner vehemently denies that her daughter Farhana is giving tuitions to the children of the locality. In response to respondent's averment that her daughter is a pardanashin lady, she states that her daughter is not orthodox and conventional and that she is an openminded and modern lady. She denies respondent's averment that her documents are not genuine. She vehemently denies that property bearing no. T144, Hata Kambal Pash, Basti Femida Begum vs. Mohd. Ahmed @ Munna Page 3/10 Nizamuddin, New Delhi measuring about 125 sq. yards belongs to her. She states that this property belonged to her late father, who during his life time divided it amongst his four sons about 45 decades ago when she was unmarried. She asserts that she has not got even a single inch in the property of her late father and that as per Muslim law, she has no right to claim any share therein. Denying other averments, she seeks dismissal of the leave to contest application.
6. I have heard the arguments at Bar and perused the record of the case.
7. Relationship of landlord and tenant is not at all disputed.
8. The respondent disputes the bonafide requirement of the petitioner. He has taken up various grounds in his affidavit, as stated hereinabove, to contend that petitioner's requirement is not bonafide. The grounds taken up by the respondent shall be dealt hereafter one by one.
9. The very first ground taken up by the respondent is that the petitioner in her legal notice dt. 10.01.2013 sent to him stated that her daughter Farhana Khan aged 28 years is of marriageable age. It was therefore urged that the present petition showing requirement of her daughter Farhana to open ladies tailoring work in the shop in question is baseless. It was also the stand that Farhana, petitioner's daughter, is a qualified lady, giving tuitions to children in nearby area and she is also a pardanashin lady. This ground is absolutely meritless. There is no law that a female after her marriage is required to mandatorily reside at the property of her husband. If a married lady chooses to reside with her mother, and her husband has no objection then there is nothing which can prevent her from doing so. It is entirely the choice of the lady. This need to reside with her mother would be more so when the mother is a widow, Femida Begum vs. Mohd. Ahmed @ Munna Page 4/10 senior citizen, 80% handicapped and suffering from various ailments. Nonetheless, even while residing with her husband in husband's house, a female can very well carry out any work for gain from the premises of her parents. Secondly, the averment regarding the petitioner's daughter being a pardanashin lady is entirely unfounded. On quite a few occasions, she attended the court and she did not at all appear to be a pardanashin lady. Moreover, a lady cannot be asked not to step out of her house to earn a living on the premise that as per the convention, she must stay behind parda. Such a regressive stand, where females are told to confine themselves within the four corners of the house and not to step out for work or employment, has to be strongly repelled. It was also urged that petitioner's daughter gives tuitions to children of locality. Petitioner has vehemently denied this averment. Nevertheless, it certainly cannot be expected that bonafide need would arise only when the landlord continues to remain financially stringent. Desire to earn from other sources to support the family consisting of a mother, who is 80% handicapped, is not uncalled for. There is nothing wrong if a lady who gives tuitions in the locality wants to start a shop of ladies tailoring in the house, where she resides. This ground does not raise any triable issue and is accordingly rejected.
10. The next ground that is urged is that petitioner's son, Firoz, is disobedient and that he is an earning member of the family but he does not reside with the petitioner. This ground too like the previous one is of no substance. Firstly, the petitioner does not require the shop for her son. Her requirement is for her daughter. Secondly, whether the petitioner's son is disobedient or not cannot be the concern of a tenant. Howsoever disobedient a son may be, a Femida Begum vs. Mohd. Ahmed @ Munna Page 5/10 mother would want even him to be well placed in life. To my mind, a mother would not want anything bad even for her disobedient son. Furthermore, it is not at all shown as to how and where the petitioner's son is earning his living. Only a vague averment in this regard will not suffice. Nevertheless, there is nothing that can prevent the petitioner from settling her daughter even though her son is earning a living for himself. It is to be noted that under clause (e) of proviso to section 14 (1) of the Act, bonafide requirement can be not only that of the landlord but any member of his family dependent on him. And accordingly, petitioner is well within the four corners of this provision in seeking eviction of the tenanted shop to settle her daughter Farhana so that she can start a shop of her own. This ground too stands rejected.
11. The next ground taken up by the respondent is that the documents filed by petitioner are not genuine. In particular, it was submitted that certificate dated 20.10.1996 of her son Firoz is forged inasmuch as the same does not bear the signature of any person. A mere vague averment that all the documents of the petitioner are forged will not be sufficient. The respondent is required to state as to how and in what manner the documents are forged and fabricated. It seems to have become a general practice on the part of some litigants to contend that the documents of the opposite side are forged and fabricated without even specifically stating as to how the same are forged and fabricated. It is to be noted that the petitioner has filed documents in the nature of electricity bills, medical documents, legal notice and its reply, documents of the property, some identity cards, etc. I do not find anything in these documents to persuade myself to believe that such documents were forged and fabricated by the petitioner. Insofar as the Femida Begum vs. Mohd. Ahmed @ Munna Page 6/10 certificate of petitioner's son is concerned, it is to be noted that the bonafide requirement in the present case is not of her son but that of her daughter.
12. The next ground was that the petitioner has another property bearing no. T144, Hata Kambal Pash, Basti Nizamuddin, New Delhi measuring about 125 sq. yards having three vacant shops. In response to this, the petitioner stated that this property belonged to her late father, who during his life time divided the same between his four sons about 45 decades ago when she was unmarried. She also stated that she did not get even a single inch in the property of her late father and that as per the Muslim law, she has no right to claim any share therein. Under the law, when a tenant contends that the landlord has an alternative accommodation, it is incumbent upon the tenant to bring on record some document in support of such a contention. In the case at hand, the respondent did not bring any such document on record to even prima facie indicate that the property bearing no. T144, Hata Kambal Pash, Basti Nizamuddin, New Delhi belonged to the petitioner or that she had any share therein. It bears repetition to state that the petitioner vehemently denied that she had a share in the aforesaid property. In view thereof, onus was squarely upon the tenant to show something on record to the effect that presently she owned/possessed an alternative accommodation. Respondent has not done so and as such this ground merits rejection. During the course of arguments, the respondent relied upon the general power of attorney document executed by late husband of the petitioner in her favour in respect of the aforesaid premises. It was contended that this document very well reflects that she is a resident of T144, Hata Kambal Pash, Basti Nizamuddin, New Delhi. This argument does not at all impress me. This Femida Begum vs. Mohd. Ahmed @ Munna Page 7/10 document is dated 15.05.1999. It was executed more than 14 years ago. Fourteen years ago, she may have been residing at T144, Hata Kambal Pash, Basti Nizamuddin, New Delhi. However, the fact that she was residing therein in year 1999 would not at all mean that she is in possession of the same even today and has acquired an interest therein. Even otherwise, this document showing her to be resident of T144, Hata Kambal Pash, Basti Nizamuddin, New Delhi can not be construed in any manner to confer any right, title or interest therein. The only plain reading of this document is that she was residing at that property more than 14 years ago and nothing more. This ground has no substance and is accordingly rejected.
13. It was next urged that tenancy stood terminated vide notice dated 10.01.2013 and as such the relationship of landlord and tenant ceased to exist and thus the present eviction petition under the Act was not maintainable. This ground is absolutely a frivolous one. After termination of his tenancy by the petitioner, respondent became a statutory tenant having protection of the Act and therefore he cannot contend that eviction proceedings under the Act would not be maintainable. This ground is of no merit.
14. It was next contended that the backside portion of the tenanted shop is vacant and the petitioner's daughter can very well carry out her ladies tailoring work from there. The petitioner has already stated in her petition that the back side portion is that of her soninlaw, who is in possession of the same by virtue of a will, executed by her late husband in his favour. When the backside portion is already being occupied by Naseem Khan, he cannot be asked to uproot himself from there and shift somewhere else to suit the convenience of the tenant. Such a Femida Begum vs. Mohd. Ahmed @ Munna Page 8/10 course of action would be highly undesirable. Furthermore, a landlady can very well judge for herself as to how best to use her premises. The tenant cannot suggest her ways regarding the usage of her house. It is for her to determine as to how best she can make use of the available space. This ground is of no consequence and is accordingly rejected.
15. It was lastly urged that Naseem Khan, petitioner's soninlaw, is residing in some other property (T33, 3rd Floor, Mirza Galib Road, opposite Lal Mahal, Nizamuddin, Delhi). It was therefore contended that he should shift himself to the property where he resides. The petitioner in her reply to the leave to defend application stated that her soninlaw is running his business from the guest room behind the shop in question. The soninlaw cannot be asked to uproot his business from the premises and shift the same to some other place. Even otherwise, the guest room which is in possession of petitioner's soninlaw cannot be taken out of his possession to suit the tenant's convenience. This is more so when the soninlaw has acquired an independent right and interest in the guest room on account of a will executed in his favour by his late fatherinlaw. This ground also stands rejected.
16. On overall conspectus of the facts and circumstances, it is my view that the respondent has failed to disclose any triable issue. The grounds taken up by him in his affidavit are of no merit. The petitioner is a widow, 80% handicapped, suffering from various ailments. She requires the shop bonafidely to settle her daughter Farhana for running a ladies tailoring work from there so that the petitioner can have some support in the evening of her life.
17. CONCLUSION No triable issue has been raised in the affidavit as Femida Begum vs. Mohd. Ahmed @ Munna Page 9/10 well as in the leave to defend application under section 25B (4) of the Act. Respondent's application seeking leave to contest the present matter is dismissed. Accordingly, an eviction order is hereby passed in favour of the petitioner and against the respondent in respect of the shop at ground floor in premises bearing no. B278, Goga Street, Bawli Gate, Nizamuddin, New Delhi as shown in the site plan bounded in red colour (exhibited today as Ex. PX). In terms of section 14 (7) of the Act, the petitioner shall not be entitled to obtain possession of the tenanted shop in question before expiration of a period of six months from the date of order. File be consigned to record room.
Announced in the open court on 29.11.2013 (M. P. Singh)
ACJ/CCJ/ARC(SE)
Saket Court, New Delhi
Femida Begum vs. Mohd. Ahmed @ Munna Page 10/10