Delhi District Court
Smt. Urmila Mehra vs Sh. Suresh Chand Jain on 18 May, 2015
IN THE COURT OF SH PAWAN SINGH RAJAWAT
ADDITIONAL RENT CONTROLLER(SOUTH),
COURT ROOM NO. 204, SAKET COURTS,
NEW DELHI
Eviction Petition No. 45/10
Smt. Urmila Mehra, aged about 81 years,
Wd/o Late Sh. Amar Nath Mehra,
R/o E61, N.D.S.E., PartI,
Through her Special Power of Attorney
/recognised agent Sh. Sunil Mehra .........Petitioner
Versus
1.Sh. Suresh Chand Jain,
S/o Late Sh. Shital Prasad
2. Sh. Sanjay Kumar,
S/o Sh. Suresh Chand Jain,
Both R/o M/s Jain Abhushan Bhandar,
Shops bearing Pvt. Nos. 167/1 & 167/2
Ground Floor, (Front Side Portion)
Jeevan Nagar, Gurudawara Bala Sahib Road,
Ashram, New Delhi .........Respondent.
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ORDER:
1. By this order I shall decide the application moved on behalf of the respondent seeking leave to defend in respect of petition filed U/Sec. 14D of DRC Act for eviction of the respondent from shop no. 167/1 and 167/2, Ground Floor, Jiwan Nagar, Gurudwara Balasahib Road, Ashram, New Delhi as shown in red colour in the site plan attached with the petition (hereinafter referred as tenanted suit property), on the ground of residential requirement of the petitioner and her family.
2. The brief facts necessary for disposal of application are that the petitioner has filed the present eviction petition u/s 14D r/w Section 25B of DRC Act against the respondent on the ground of residential requirement in respect of tenanted suit premises stating that the petitioner is the owner and the premises in question were let out to the respondent by the deceased husband of the petitioner namely Sh. Amar Nath Mehra who died on 21.01.2007. It is further stated that the premises let out to the respondent are required by the petitioner for her own residence and for the residence of her family members who are dependent upon her for the same and the petitioner has no other reasonable suitable accommodation for her as well as for the family members dependent upon her. It is further stated that after the death of her husband, the ENo. 45/10 Urmila Mehra Vs Suresh Chand Jain & Anr Page 2/16 petitioner wants all her family members to be with her in one house in different units to be reconstructed or repaired of the tenanted premises. The family members of the petitioner consists of three married sons and their respective families total consisting 13 members. Three grand sons of the petitioner namely Sh. Sahil Mehra, aged about 25 years, Sh. Karan Mehra, aged about 26 years and Sh. Safir Mehra, aged 23 years are of marriageable age and their marriages are to be performed in near future and hence separate accommodation is required for above family members of the petitioner. Hence, the present petition. It has been prayed that an eviction order may be passed in favour of the petitioner and against the respondent in respect of the suit premises.
3. The respondent has filed leave to defend application contending that the petitioner is already having more than sufficient accommodation for her use at E61, N.D.S.E., Part I, New Delhi - 110049 which is owned by the petitioner measuring about 300 sq. yd and built up upto 3 floor and each floor is having at least 4 to 5 rooms and ground floor of said residential accommodation is available with the petitioner as same is lying vacant. It is further stated that the petitioner has not disclosed the accommodation available with her and how the said accommodation is insufficient. It is also stated that ENo. 45/10 Urmila Mehra Vs Suresh Chand Jain & Anr Page 3/16 children (sons and grand sons) of the petitioner are well settled and comfortably living and they are not legally and factually dependent on the petitioner for residence. It is stated that the petitioner has no locus standi to file the present petition as ownership of the petitioner over the property in question is denied and same belong to one of the sisters of Late Sh. A. N. Mehra and petitioner has not filed any document to show her ownership to the exclusion of other members of the family. It is further stated that the petition is bad for nonjoinder of parties as other brothers and sisters of Late Sh. A. N. Mehra were not impleaded. It is also stated that petitioner has placed no documents to show that her sons presently employed in Dubai will require to shift to India after their alleged retirement. It is also stated that property No. 167, Jeewan Nagar having 15 rooms on ground and first floor which itself sufficient for the petitioner. It is also stated that the ground of marriageable age of grandsons of petitioner cannot be considered under the scope and ambit of Section 14 D of Delhi Rent Control Act. It is stated that there are several triable issues which require trial and hence, the respondent has prayed for leave to contest the petition.
4. The petitioner has filed the reply to the leave to defend application denying all the averments made in the application and it is stated that no triable ENo. 45/10 Urmila Mehra Vs Suresh Chand Jain & Anr Page 4/16 issue has been raised by the respondent. It is stated that petitioner is not the exclusive owner of E61, N.D.S.E., Part I, New Delhi - 110049 and her sistersinlaw are the coowners. It is also stated that her sons do not own any property in Delhi and NCR. The petitioner has prayed for dismissal of the application.
5. The respondent has filed the rejoinder to the reply filed by the petitioner in which averments made in leave to defend application have been reiterated and reaffirmed and those made in reply have been controverted. It is also stated that petitioner has failed to file the documents showing co ownership of E61, N.D.S.E., Part I, New Delhi - 110049.
6. I have heard the Ld. Counsel for the parties and perused the record carefully.
THE LAW:
7. Before proceeding further it would be worthwhile to note that Chapter IIIA Of Delhi Rent Control Act deals with summary trial of certain Applications expressly stating that every application by a landlord for recovery of possession on the ground specified in clause (e) of the proviso to sub section (1) of Section 14 of the Act, or under Section 14A or 14B or 14C or ENo. 45/10 Urmila Mehra Vs Suresh Chand Jain & Anr Page 5/16 14D shall be dealt with in accordance with the special provisions prescribed in Section 25B of the Act. The provisions in Chap. IIIA confer a real, effective and immediate right to obtain possession by confining the trial only to such cases where the tenant has such a defence as would disentitle the landlord from obtaining an order for eviction under s.l4(1)(e) or under s. 14A. Chap. IIIA seeks to strike a balance between the competing needs of a landlord and a tenant and has therefore provided that the tenant shall have a right to apply for leave to contest. As per the broad scheme of this Chapter a tenant is precluded from contesting an application filed for eviction on the grounds mentioned in the aforementioned provisions unless he obtains leave from the Controller to contest the eviction petition. In default of obtaining leave to defend or leave is refused to him an order of eviction follows. It appears recourse to summary trial is adopted having due regard to nature of the grounds on which the eviction is sought with a view to avoid delay so that the landlord should not be deprived or denied of his right to immediate possession of premises for his bona fide use. Defences of negative character which are intended to put the landlord to proof or are vague, or are raised mala fide only to gain time and protract the proceedings, are not of the kind which will entitle the tenant to the grant of leave. The trial must be confined only to such grounds as would disentitle the landlord to any relief.
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8. But at the same time, it is well settled and accepted position in law that no one shall be subjected to suffer a civil consequence like eviction from a premises resulting in hardship to him without providing adequate and effective opportunity to disprove the case against him and establish his case as pleaded.
9. At the stage of seeking leave to defend, it is enough if tenant prima facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction. It would not be a right approach to say that unless the tenant at that stage itself establishes a strong case as would nonsuit the landlord, leave to defend should not be granted when it is not the requirement of Section 25B(5). A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter IIIA of the Act.
10. Further, it is held time and again by Hon'ble supreme Court that the genesis of our procedural laws is to be traced to principles of natural justice, the principal amongst them being that no one shall suffer civil or evil or pecuniary consequence at his back without giving him an adequate and effective opportunity to participate to disprove the case against him and provide his own case. Summary procedure does not clothe an authority with ENo. 45/10 Urmila Mehra Vs Suresh Chand Jain & Anr Page 7/16 power to enjoy summary dismissal. It is necessary to bear in mind that when leave to defend is refused the party seeking leave is denied an opportunity to test the truth of the averments of the opposite party by cross examination and rival affidavits may not furnish reliable evidence for concluding the point one way or the other. It is not for a moment suggested that leave to defend must be granted on mere asking but it is equally improper to refuse to grant leave though triable issues are raised and the controversy can be properly adjudicated after ascertainment of truth through crossexamination of witnesses who have filed their affidavits. Burden is on the landlord to prove his requirements and his assertion is required to be tested. THE FINDINGS:
11. With this background, this Tribunal turns to the facts of the case in hand and has to focus its attention to the scope and content of Section 25B(5) of D.R.C. Act.
12. It is well settled that landlord is best judge of his own requirement. But in the present case, the issue is whether the petitioner already has sufficient residential accommodation with him and therefore in the facts and circumstances of present case, the requirement of the petitioner is bona fide or ENo. 45/10 Urmila Mehra Vs Suresh Chand Jain & Anr Page 8/16 not.
13. In Rajender Kumar Sharma vs. Leela Wati [155 (2008) DLT 383] it has been held that only those averments in the affidavit are to be considered by the Rent Controller which have some substance in it and are supported by some material and mere assertions made by a tenant in respect of landlord are not to be considered sufficient for grant of leave to defend.
14. In Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, (1999) 6 SCC 222, Hon'ble Supreme Court has held:
"If a landlord wants to get a property from a tenant despite his having in his possession another property, the Court can justifiably require the landlord to justify his decision to do his business only from the property from which the tenant is sought to be evicted."
15. Moreover In Prahlad Rai Mittal vs. Rita Devi, 196 (2013) DLT 703, in para 15 it was held that:
"15. ..........There is also no dispute that it is not open for the Court or the tenant to dictate what the landlord must do with his premises, but, at the same time, the landlord is required to demonstrate that the projected need of tenanted premises is genuine and authentic, and is not his mere wish and ENo. 45/10 Urmila Mehra Vs Suresh Chand Jain & Anr Page 9/16 desire. It is not the subjective decision of the landlord alone, which would entitle him straight eviction order against the tenant, but the objective assessment by the Controller of the bona fide requirement of the landlord. It is not that whatever landlord would say, in every case, would be taken to be as gospel truth. If that was so, then, on the mere asking of every landlord that he needs the premises for doing his 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 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."
16. The respondent has disputed the relationship of landlord and tenant between the parties as well as ownership of the petitioner over the property in question and also disputed the locus standi of the petitioner to file the present petition in his leave to defend application. But, it is admitted by the ENo. 45/10 Urmila Mehra Vs Suresh Chand Jain & Anr Page 10/16 respondent that the premises in question was let out to him by late Sh. Amar Nath Mehra. There is also no dispute that the petitioner is widow of late Sh. Amar Nath Mehra and as the present petition has been filed u/s 14D r/w section 25B of DRC Act, the petition is very much maintainable because a widow can file the petition u/s 14D r/w section 25B of DRC Act in respect of the premises which was let out by her or by her deceased husband. Hence, there is no merit in the contention of the respondent that the petitioner has no locus standi to file the present petition.
17. However, the main contention of the respondent in his leave to defend application is that petitioner is already having more than sufficient accommodation for her use in South Delhi at E61, N.D.S.E., Part I, New Delhi - 110049 which is owned by the petitioner measuring about 300 sq. yd and built up upto IIIrd Floor where the petitioner has been residing. In reply to this, the petitioner has stated in her counter affidavit that the property bearing No. E61, N.D.S.E., Part I, New Delhi - 110049 admeasuring 200 sq. yds. was purchased by Smt. Ram Rakhi Mehra, motherinlaw of the petitioner who died on 10.09.1970 leaving behind her legal heirs namely her son Sh. Amar Nath Mehra, her three daughters namely Smt. Kanta Mehra, Smt. Sumitra Kapur and Smt. Raj Kumari and the petitioner is not the exclusive owner of the ENo. 45/10 Urmila Mehra Vs Suresh Chand Jain & Anr Page 11/16 said property. The petitioner has disputed the alleged fact that she has been residing in the said property comfortably. Although, the petitioner has contended in her counter affidavit that the said property is owned by her motherinlaw namely Smt. Ram Rakhi Mehra who has expired leaving behind her other legal heirs including the petitioner and the petitioner is not exclusive owner of the said property, but the petitioner has not disclosed to what extent the said building is built up. The petitioner has not specifically controverted the fact that the said property bearing No. E61, N.D.S.E., Part I, New Delhi - 110049 is not constructed upto Third Floor. The petitioner has also not placed on record the site plan of the said property to show the extent of accommodation available with the petitioner in the said property. When the respondent has categorically stated that petitioner is having more than sufficient accommodation available with her in the property bearing No. E61, N.D.S.E., Part I, New Delhi - 110049, then the petitioner should have filed the site plan of the said property to show the extent of accommodation available with her in the said property.
18. It is also pertinent here to mention that the petitioner has not disclosed in the petition itself that how much accommodation is available with the petitioner. Therefore, it raises a triable issue regarding sufficient ENo. 45/10 Urmila Mehra Vs Suresh Chand Jain & Anr Page 12/16 availability of the accommodation with the petitioner and as to whether the petitioner requires the suit premises bonafidely in the absence of any particulars given by the petitioner regarding accommodation which is available with her.
19. The respondent has also contended in leave to defend application that the sons and grandsons of the petitioner are well settled and they are not dependent upon the petitioner for the purpose of residence. The petitioner has denied the same in her reply to leave to defend application and has stated that two sons of the petitioner namely Sh. Lalit Mehra and Sh. Vinay Mehra are employed at UAE and their respective families are with them at UAE. It is further stated there is a ban of employment after the age of 60 years as per the laws of UAE and hence said two sons of the petitioner are willing to come back to India with their respective family and they have decided to reside with the petitioner along with their families in one house property after repair/reconstruction of the house in question.
20. The aforesaid plea that the two sons of the petitioner are employed at UAE and they intend to return back to India and want to live with the petitioner in one house after reconstruction of the property in question, was not ENo. 45/10 Urmila Mehra Vs Suresh Chand Jain & Anr Page 13/16 pleaded by the petitioner in the petition.
21. As such, as the aforesaid plea that the two sons of the petitioner are employed at UAE and want to come back to India to reside with the petitioner at one house after reconstruction of the house in question was not raised by petitioner in the petition. Therefore, it raises a triable issue as to whether the petitioner requires the suit premises bonafidely or not.
22. On 16.01.2012, the petitioner filed an application u/s 151 CPC for filing additional documents which was dismissed by order dated 18.09.2012 as section 25B DRC Act is complete code in itself and the said documents were intended to be filed by the petitioner to fill the lacuna in the petition.
23. The Ld. Counsel for petitioner has also filed Written Synopsis in support of his arguments and has tried to make a distinction between the degree of requirement under section 14(1)(e) and 14D DRC Act. It was argued by Ld. Counsel that as far as claimed u/s 14D is concerned, Court has only to see that the petitioner is a widow and premises required by her for own residence. He also pointed out that u/s 14(1)(e) the legislature as used the word "required bonafide" whereas u/s 14D it only uses the word "required". ENo. 45/10 Urmila Mehra Vs Suresh Chand Jain & Anr Page 14/16
24. The object of section 14D is to assist the vulnerable and needy section of the society i.e. the widow to recover possession of premises as expeditiously as possible. In the matter of Rahabar Production Pvt. Ltd. Vs Rajender Kumar Tandon( 1998), 4 SSC 49, it was held that if the landlord is alreday in occupation of own house and he makes an application for eviction of a tenant occupying another house, the need of the landlord, with reference to his family strength and the extent of accommodation available at his disposal will have to be examined vis a vis his requirement.
25. In the present case the petitioner admittedly is owning property no. E61, N.D.S.E. PartI, New Delhi. Despite being pointed out that the availability of said accommodation the petitioner chosen not to either file the ownership documents said property to show the extent of her share or the site plan of said property to show the availability in the said accommodation.
26. Therefore, I find force in the contention of the Ld. Counsel of the respondents under these circumstances that the respondents have raised several triable issues in the affidavit filed by the respondent seeking leave to defend and it is not possible to take a view that no triable issue arose for consideration. The facts stated in the affidavits of the respondent in support of ENo. 45/10 Urmila Mehra Vs Suresh Chand Jain & Anr Page 15/16 his Application seeking leave to defend, prima facie, do disclose that the Petitioner would be disentitled to obtain an order for the recovery of possession of the premises from the respondent as the defence does not appear to be frivolous or untenable on the face of it. In my view the facts are disputed and the correctness or otherwise of the assertions made by each side required to be examined. Thus, leave to defend is granted to the respondents to contest the petition.
Announced in the open court (Pawan Singh Rajawat)
on 18 May, 2015 CCJ/ARC/ACJ (South), New Delhi
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