Delhi District Court
Smt. Omwati vs Shri Ramji Lal on 11 September, 2008
IN THE COURT OF SH ANIL KUMAR SISODIA; ARC/DELHI
Case No:- E-1156/06
SMT. OMWATI
w/o late Sh Budh Ram
r/o H. No. 2430, Gali no. 13,
Kailash Nagar, Delhi-31 Petitioner
Versus
SHRI RAMJI LAL
S/o Not Known,
r/o H. No. 2430, Gali no. 13,
Kailash Nagar, Delhi-31 Respondent
Eviction petition u/s:- 14 (1) (e) r/w 25-B of Delhi Rent Control Act, 1958
DATE OF INSTITUTION: 15-01-2001
DATE OF ORDER : 11-09-2008
J U D G E M E N T:
1. The present eviction petition has been filed by the petitioner against the respondent seeking eviction of the respondent on the ground of bonafide requirement.
2. The facts of the case, as stated in the eviction petition, are that the respondent was inducted as a tenant in one room of the property bearing no. 2430, Gali no. 13, Kailash Nagar, Delhi-31 as 1 shown in red colour in the site plan annexed with the petition. The premises was let out for residential purposes at a monthly rent of Rs.12/- excluding other charges. The petitioner is the owner and landlady of the aforesaid property and her family consists of herself, her two sons namely Avdesh Kumar aged 40 years having a wife and three children; Rakesh Kumar aged 38 years having a wife. The petitioner is also having three married daughters who are residing in Delhi and Ghaziabad and visit the petitioner and remain with her for many days. The accommodation available with the petitioner consists of one store room, three bed rooms besides bath, kolki/small room and latrine. The aforesaid accommodation is not at all sufficient for the petitioner and her family members. The elder son of the petitioner is running a small shop measuring 6' x 8' in the aforesaid premises and the younger son of the petitioner is in service in a printing press. The petitioner has no study room for the school going children of her eldest son. The petitioner also requires the pooja room and there is no guest room and drawing room for her married daughters and their family members and other guests who visit the petitioner. It has also been stated that the petitioner 2 had earlier filed petition on the bonafide requirement about 16 years ago and the same was dismissed. Both the sons of the petitioner were unmarried at that time and one of them was minor. After the said judgement both the sons have got married and the number of family members and relations have increased.
3. The summons of the eviction petition were served on the respondent. The respondent applied for grant of leave to contest the eviction petition and vide orders dated 22-11-2001 the respondent was granted leave to contest the eviction petition.
4. Thereafter, the respondent filed the written statement raising preliminary objections that the petition is false, frivolous and has been filed with the sole motive to harass the respondent. The petitioner had earlier also filed an eviction petition u/s 14 (1) (e) and 14-D of DRC Act and the same was dismissed. The present petition is also liable to be dismissed as the petitioner has not approached the court with clean hands and the petition is barred by resjudicata as the earlier petition in respect of the same premises was dismissed on merits on 03-09-1986. The accommodation in occupation of the petitioner has not been correctly stated in the 3 petition. The petitioner is in occupation of five rooms, latrine and bathroom, kolki/small room besides one shop in the front side of the premises. The site plan of the petitioner has also been disputed and the respondent has also filed one site plan. It has also been stated that there is no bonafide requirement of the petitioner and accommodation available with the petitioner is more than sufficient as two rooms occupied by the petitioner are lying unused. The premises was not let out for residential purposes. The suit premises is being used for commercial as well as residential purposes right from the inception of the tenancy. The dominant user is the commercial purposes. The respondent is manufacturing potato chops and samosas and for storing raw material. The petitioner also filed the petition u/s 14 (1) (b) of DRC Act which was also dismissed on 04-09-1999. The present petition is misuse of the provisions of the DRC Act.
On merits, the relationship of landlord and tenant has not been disputed. However, respondent has submitted that the purpose of letting was residential cum commercial. The petitioner does not require the suit premises bonafide. The petitioner has 4 sufficient accommodation available with her and the daughters of the petitioner are only transitory visitors and they do not stay in the premises. It has also been submitted that two tenants have already left the tenanted portion in 1992 and 1998.
5. Replication was filed by the petitioner to the WS filed by respondent controverting the allegations levelled in the WS and the averments made in the eviction petition have been re-affirmed and reiterated. It has been submitted that the petition u/s 14-D was not pressed in view of the latest judgment of Hon'ble High Court. It has also been denied that the present petition is barred by resjudicata. It has further been stated that a child has also born to the petitioner's younger son during the pendency of the petition. The requirements of the petitioner has increased on account of marriage of his sons and on account of birth of grandchildren.
6. After completion of the pleadings the parties were directed to lead evidence in support of their case. In support of her case, petitioner has examined herself as PW1 and has reiterated the facts stated in the eviction petition. The petitioner has also examined PW-2 Hari Prakash Sharma from MCD; PW-3 Sanjay 5 Sharma, PGT Science from DAV School; PW-4 Joginder Singh Head Clerk from Guru Nanak Girl Senior Secondary School; PW-5 Manoj Kumar Sharma; AW-6 Raj Kumar LDC from Record Room Civil and AW-7 Dilip Singh from the O/o Sub-Registrar VIII and PE was closed. The respondent has examined himself as RW1 and one Padam Chand as RW-2 and has closed his evidence.
7. I have heard Ld. Counsel for the petitioner and counsel for the respondent and have perused the record carefully. Counsel for the petitioner has also relied upon the judgments Vinod Chander Vs Ishwar Dayal 2005 (1) RCR 306; Mahabir Prashad & Anr. Vs Ved Wati Pathak & Ors. 2007 (1) RCJ 224; Manmohan Nath Vs Subhash Chander 2004 (2) RCR 357; Jai Rani Vs Rakesh Kumar Gupta & Ors. 2006 (1) RCJ 320; Dr. B.K. Dawesar Vs K.K. Sapra 2006(1) RCR 223; S.N. Bhatia Vs Sita Bijai Singh 1993 RLR 431; Wing Commander Tapeshwar Puri (through LRs) Vs Lee Club Francais 2007 (1) RCJ 1, in support of his arguments. I have carefully perused the judgements relied upon by the counsel for the petitioner besides the pleadings of the parties, 6 documents filed by them and evidence produced before the court.
8. In order to succeed u/s 14 (1) (e) DRC Act, the petitioner has to establish: (1) that the petitioner is the owner of the suit property; (2) that there is relationship of tenant and landlord between the parties; (3) that the premises was let out for residential purposes; (4) that the premises is required bonafide by the landlord for occupation as a residence for himself or for any member of his family dependent on him; (5) that he has no other reasonably suitable residential accommodation.
Ownership of property and relationship of landlord and tenant:-
9. The respondent in his WS has not disputed the relationship of landlord and tenant between the parties. The respondent has also not disputed the ownership of the petitioner. The petitioner in her evidence has deposed that earlier her husband Shri Budh Ram was the owner of the suit property and he died interstate on 01-04- 1964. She has proved the copy of registered sale deed in favour of her husband as Ex.PW1/B and the death of certificate of her 7 husband as Ex.PW1/A. She has also deposed that all the major legal heirs of her husband executed the relinquishment deed in her favour dated 18-04-1978 and her minor son Rakesh Kumar also subsequently the relinquishment dated 12-12-2000. She has proved the copies of the relinquishment deed as Ex.PW1/C and Ex.PW1/D. The respondent has also not challenged these documents in his cross-examination. Besides herself petitioner has also examined Hari Prakash Sharma as PW-2, who has also deposed that property no. 2430 is mutated in the name of the petitioner on 15-10-1993 and she is paying the house tax. Thus, the petitioner has establish on record that she is the owner of the suit property and their exists the relationship of landlord and tenant between the parties.
Purpose of letting:-
10. The respondent in his WS has taken the stand that the suit property was let out to him for composite purposes and he is using the same for manufacturing potato chops and samosas and for storing raw material for the aforesaid commercial activities. He has 8 also examined RW-2 Padam Chand to prove these facts. However, Hon'ble Supreme Court in Satyawati Sharma (Dead) by LRs Vs Union of India and Anr. 148 (2008) DLT 705 (SC) has struck down this requirement u/s 14 (1) (e) DRC Act and hence the purpose of letting is now become immaterial in deciding the petition for bonafide requirements. The issue has thus become redundant. Bonafide requirement and alternate accommodation:-
11. The aforesaid two ingredients are inter-related and hence are taken up together for consideration.
The petitioner in her petition has stated that she is a widow of late Sh Budh Ram and her family consists of herself, her two sons namely Avdesh Kumar aged 40 years having a wife and three children; Rakesh Kumar aged 38 years having a wife. The petitioner is also having three married daughters who are residing in Delhi and Ghaziabad and visit the petitioner and remain with her for many days. The accommodation available with the petitioner consists of one store room, three bed rooms besides bath, kolki/small room and latrine. The aforesaid accommodation is not 9 at all sufficient for the petitioner and her family members. The elder son of the petitioner is running a small shop measuring 6' x 8' in the aforesaid premises and the younger son of the petitioner is in service in a printing press. The petitioner has no study room for the school going children of her eldest son. The petitioner also requires the pooja room and there is no guest room and drawing room for the petitioner, her married daughters and their family members and other guest who visit the petitioner. The petitioner does not have any reasonably suitable accommodation. The respondent has disputed the bonafide requirements of the petitioner and has stated in his WS that the petition is malafide and has been filed with a view to harass him. The petitioner is in occupation of five rooms, latrine and bathroom, kolki/small room besides shop in the front side of the premises. It has also been submitted that the portion occupied by the petitioner is surplus and two rooms are lying locked. The respondent has also disputed the site plan filed by the petitioner and has stated that two tenants left their tenanted portions in the year 1992 and 1998 which also increases the accommodation available with the petitioner. The requirement of the petitioner has 10 also been denied by the respondent.
12. The petitioner in her evidence has deposed that her family consists of herself, five married children and fourteen grandchildren, five spouses of her children besides their relatives. She has proved the copy of her ration card as Ex.PW1/J and rations card of her son Avdesh as Ex.PW1/K. The petitioner has also proved the site plan as Ex.PW1/F. She has also deposed that she is in possession of one room and three small rooms including the one small room measuring 10' x 7' 9" (being vacated by the tenant), one very small kolki below the staircase and two common latrine. The petitioner is also having a small shop of size 6' x 8' which is being run by her son Avdesh. The petitioner requires one additional room for her son Rakesh, one additional study cum bedroom for two grown up grandsons besides one drawing room and one dining room, one pooja room and one guest room. In the cross-examination she has admitted that the room shown at point A is vacated by the tenant Vijay Kumar in the year 1992 and the same is being used as bathroom. She has also admitted that the rooms shown as Z was vacated Raghubir Singh in the year 1998 and after 11 filing of this petition room Y was vacated in 2002 and is in her possession. She also stated that there are five rooms, bathroom and kitchen with her. There is a kolki which is used by her daughter in law as a kitchen. In one room her granddaughter along with her two brothers are sleeping and studying and in another room her son is sleeping. The petitioner has also examined PW-3 Sanjay Sharma who has proved on record the relevant page of admission register showing the date of birth of Vipin Kumar S/o Avdesh Kumar as 10-09-1989 and the same has been exhibited as Ex.PW3/1. He also proved the attendance register of Vipin Kumar as Ex.PW3/2. PW-4 Joginder Singh has proved the copy of admission and withdrawal register showing the name of Ms. Jyoti Aggarwal D/o Avdesh Kumar as Ex.PW4/1. He also proved the certificate Ex.PW4/2 showing that Jyoti Aggarwal was the student of 10th class at that time. The petitioner has also proved the site plan as Ex.PW5/1 through PW-5 Manoj Kumar Sharma.
13. At the outset it may be mentioned here that the respondent has not disputed the number of family members of the petitioner but has deposed in his affidavit Ex.R1 that the accommodate available 12 with the petitioner has increased during the pendency of the case and this fact has also not been disputed by the petitioner. In the cross-examination RW-1 Ramji Lal has admitted that the petitioner is the owner of the suit property and she inducted him as a tenant. He also admitted that the petitioner has not let out any room vacated after the year 1992. He also admitted that in the year 1986 there were only three members in the family of the petitioner when she filed the petition against him u/s 14 (1) (e) DRC Act. He has also admitted that the petitioner has got two married sons and that Avdesh has got three children. His daughter is aged about 16 years and his elder son is aged about 14 years and the younger son is aged about 12 years and all of them are school going. He also admitted that the younger son of the petitioner Rakesh has one daughter aged about 2.5 years and one son aged about 1.5 years. He has also admitted that the site plan Ex.PW1/F is correct to the extent of construction. He also admitted that the petitioner has three married daughters having children. RW-2 Padam Chand in his cross-examination has also admitted the petitioner to be the owner of the suit property and has further admitted that the 13 petitioner does not have any other house for her residence. He has also admitted the size of the family of the petitioner.
14. Thus, from the testimony of the witnesses it is an admitted position that the family of the petitioner consists of :-
a) Petitioner herself
b) Avdesh Kumar (Son of the petitioner )
c) Wife of Avdesh Kumar
d) Daughter of Avdesh Kumar, Ms. Jyoti Aggarwal ,aged
about 20 years
e) Vipin Kumar S/o Avdesh Kumar aged about 19 years.
f) Son of Avdesh Kumar aged about 15 years.
g) Rakesh Kumar (son of the petitioner)
h) Wife of Rakesh Kumar
i) Daughter of Rakesh Kumar aged about 7/8 years.
j) Son of Rakesh Kumar aged about 4/5 years.
k) Three married daughters of the petitioner.
15. Thus, the family of the petitioner consists of 10 members besides her three married daughters who visit the petitioner on festivals and other occasions. The petitioner requires one room for herself; one room each is required for the married sons of the petitioner; one room each is required for the children of Avdesh Kumar who are of growing age and one room would be required for the children of Rakesh Kumar. The requirement of one room for the visiting guests and relatives has also to be taken into 14 consideration besides one drawing room and one pooja room. Thus, in all the minimum requirement of the petitioner is of 10 rooms whereas even as per the site plan Ex.PW1/F there are only six rooms and one shop in the entire property besides one bathroom and two kitchens and one common latrine. This includes the rooms in possession of the tenant. The counsel for the respondent has submitted that the bathroom mark at point A in the site plan Ex.PW1/F is in fact a room. The contention of the counsel for the respondent cannot be accepted for the simple reason that apart from this bathroom admittedly there is no other bathroom in the entire premises. The family of the petitioner is entitled to the bare minimum requirement of one bathroom and it cannot be said that the petitioner should use the same as a room and live without a bathroom.
16. Thus, in view of the aforesaid discussion, I am of the considered opinion that the requirement of the petitioner is most bonafide. It is well settled law that the landlord cannot be asked to continue to live in miserable condition for the sake of convenience of the tenant and the tenant cannot dictate as to how he should live. 15 In Mahavir Prashad Vs Ved Wati Pathak & Ors. 2007 (1) RCJ 224, it was held that the requirement of the landlord of a guest room, drawing room and a pooja room cannot be ignored. The requirement of the landlord being bonafide and there being lack of sufficient accommodation available with him, landlord is liable to succeed in eviction proceedings.
17. Counsel for the respondent has also argued that the present petition is barred by the principles of resjudicata as the petitioner had earlier filed a petition u/s 14 (1) (e) DRC Act and the same was dismissed as withdrawn on 27-07-1998. The petitioner had also filed a petition u/s 14 (1) (a) & (e) in the year 1984 and the same petition was dismissed on merits by the court of Shri Ajit Barihoke, the then Ld. ARC, vide his judgment dated 30-09-1986. The petitioner had also filed an appeal against the said judgment and the appeal was also dismissed by Ld. RCT vide his order dated 20-05-1987. Thereafter the petitioner again filed a petition u/s 14 (1) (b) of DRC Act against the respondent and the said judgment was dismissed by Shri V.K. Maheshwari, the then Ld. ARC vide his order dated 04-09-1999. The counsel for the respondent has 16 argued that the conduct of the petitioner itself establishes that the petitioner is bent upon to evict the respondent at any cost.
Counsel for the petitioner on the other hand has argued that the present petition is not barred and the principles of resjudicata are not applicable to it as the petition has been filed after change in circumstances. It has been argued that in the year 1984 the family of the petitioner was small and with the passage of time the sons of the petitioner got married and they are now having their own children and thus the size of the family of the petitioner has increased considerably. Hence, the facts and circumstances for filing the present petition are not same as that of the previous petition. Reliance has also been placed by the counsel for the petitioner on the judgment of S.N. Bhatia Vs Sita Bijai Singh 1993 RLR 431, wherein it was held that a second eviction petition if base on a new cause of action is not barred by resjudicata. The counsel for the petitioner has also argued that the court can also taken into consideration the subsequent facts as considerable time has passed since the original eviction petition was filed as the younger son of the petitioner has been blessed with two children during the 17 pendency of this eviction petition and size of the family of the petitioner has further increased. I find force in the contentions of the counsel for the petitioner and I am of the considered opinion that the present eviction petition filed by the petitioner due to change in the circumstances on account of subsequent developments is not barred by the principles of resjudicata. It is well settled law that the cause of action for filing the petition for non- payment of rent as well as for bonafide requirement is a recurring cause of action. In Krishan Kumar Vs Vimla Sehgal 1976 RCR 249, it was held that when landlord's earlier petition on bonafide requirement failed. He can filed second application on the same ground when the circumstances change. Thus, the arguments raised by the counsel for the respondent are without any merits and the same are rejected.
18. Thus, in view of the aforesaid discussion, I am of the considered opinion that petitioner has established her case u/s 14 (1) (e) r/w Section 25-B DRC Act. Accordingly, an eviction order is passed in favour of petitioner and against the respondent directing the respondent to handover the vacant and peaceful possession of 18 the tenanted premises consisting of one room on the ground floor of property no. 2430, Gali No. 13, Kailash Nagar, Delhi-31, more specifically shown in red colour in the site plan Ex.PW1/F. Further, the petitioners shall not be entitled to obtain the possession of the aforesaid tenanted premises from the respondent before expiry of period of six months form the date of passing of this order as provided u/s 14 (7) of DRC Act.
19. The petition for eviction u/s 14 (1) (e) r/w 25B of DRC Act is accordingly disposed of. No orders as to cost. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT On 11th September, 2008 (ANIL KUMAR SISODIA) Additional Rent Controller; Delhi 19 E-1156/06 11-09-2008 Present: Parties in person.
Vide my separate judgement announced in the open court today an eviction order is passed in favour of petitioner and against the respondent directing the respondent to handover the vacant and peaceful possession of the tenanted premises consisting of one room on the ground floor of property no. 2430, Gali No. 13, Kailash Nagar, Delhi-31, more specifically shown in red colour in the site plan Ex.PW1/F. Further, the petitioners shall not be entitled to obtain the possession of the aforesaid tenanted premises from the respondent before expiry of period of six months form the date of passing of this order as provided u/s 14 (7) of DRC Act.
The petition for eviction u/s 14 (1) (e) r/w 25B of DRC Act is accordingly disposed of. No orders as to cost.
File be consigned to Record Room.
ARC/Delhi 11-09-2008 20