Delhi District Court
Hazari Courts vs Smt. Santosh W/O Late Sh. Lajpat Rai on 2 March, 2012
//1//
IN THE COURT OF SH. PRITAM SINGH, ARC (CENTRAL), TIS
HAZARI COURTS, DELHI
E-92/10
02.03.2012
Sh. Tarlok Singh
s/o Sh. Mehar Singh,
r/o 7-A/4, WEA, Channa Market,
Karol Bagh, New Delhi. ...Petitioner
VERSUS
1. Smt. Santosh w/o Late Sh. Lajpat Rai.
2. Sh. Ravinder s/o Late Sh. Lajpat Rai.
3. Ms. Neelam d/o Late Sh. Lajpat Rai.
4. Ms. Rajni d/o Late Sh. Lajpat Rai.
All r/o 7-A/4, WEA, Channa Market, Karol Bagh, New Delhi.
5. Ms. Anita d/o Late Sh. Lajpat Rai,
r/o D-38, Arjan Apartments, Vikas Puri, New Delhi.
6. Sh. P.N.Thukral s/o Late Sh. R.N.Thukral,
r/o A2/57, LIG Flats, Paschim Vihar, New Delhi.
7. Dr. Kamla d/o Late Sh. R.N.Thukral.
8. Mrs. Seema d/o Late Sh. R.N.Thukral.
9. Mrs. Savitri d/o Late Sh. R.N.Thukral,
All r/o 7-A/4, WEA, Channa Market,
Karol Bagh, New Delhi. ...Respondents
Petition u/s 14 (1) (e) r/w section 25-B of Delhi Rent Control Act.
1. Date of institution of the case : 27.04.2010
2. Date of Judgment reserved : 07.02.2012
3. Date of Judgment pronounced : 02.03.2012
JUDGMENT
By this order I shall dispose off the application under section 25B (3) and (4) filed on behalf of the respondent. The present petition was filed by the petitioner u/s 14 (1) (e) r/w section 25-B of the DRC Act on the ground of E-92/10 Tarlok Singh Vs. Santosh & others Page 1 of 19 //2// bonafide requirement. The brief facts as stated in the petition are that the petitioner is the owner of the suit premises and the respondent is tenant respect of one room situated on the ground floor, the entire first floor consisting of three rooms, verandah, kitchen, bathroom, WC etc. and one room and bath room on the second floor with common use of lobby of the property bearing no. 11208-11208/1,2 and 3, 7-A/4, WEA, Channa Market, Karol Bagh, New Delhi as shown in red color in the site plan. It is stated that the family of the petitioner consists of himself, his wife, his elder son, his wife, their daughter and their two sons, his second son, his wife and their two daughters and their one son. The petitioner is also having one married daughter and three sisters. It is further stated that the petitioner with his wife and two sons and their families have got citizenship of United Kingdom. As the winter season in the UK is very cold as compare to Delhi so because of old age of the petitioner and his wife, the climate of UK in winter season does not suit to them and as such they have been coming to Delhi almost every year around the month of September and stay till the month of May in the suit property. During the period of staying of the petitioner and his wife in the suit property, both the sons of the petitioner and their wives also come to India and live in the suit property with the petitioner. The sisters of the petitioner with their families also come to see the petitioner and his wife in the suit property and they also stay with the petitioner for some time in the suit property. The petitioner and his family members are in possession of a room on the ground floor which is being used by the petitioner for parking his car. Besides this the petitioner is also in possession of two small bed rooms, one dining, one lounge, one kitchen on the second floor and two rooms, one kitchen which is in dilapidated condition and one toilet on the third floor of the E-92/10 Tarlok Singh Vs. Santosh & others Page 2 of 19 //3// suit property. It is further stated that because of old age of the petitioner and his wife they have got several ailments. The wife of the petitioner has been suffering from angina and Generalised Osteoarthritis of both knees and she had got her left knee replaced in December, 2003 and she is also having heart problem. Similarly the petitioner has also been suffering from Osteoarthritis of both knees since a long time and as such it is very difficult for the petitioner and his wife to climb up stairs and live in the second floor and third floor portions of the suit property. The Doctors have also advised the petitioner and his wife to avoid climbing up stairs. The petitioner has also not any toilet on the second floor portion of the suit property which portion is in his possession and the petitioner feels great difficulty to go to third floor for urinating during night. The accommodation available with the petitioner on the second floor and third floor of the suit property is also not at all suitable for his residence and for the residence of his family members dependent upon him as the petitioner is in occupation of only two small room on the second floor and two rooms on the third floor of the suit property and the sisters of the petitioner also come with their families and live with the petitioner. The petitioner now had finally made up his mind to liive permanently in Delhi as the climate of the UK does not suit him and his wife. The elder son of the petitioner with his wife also wants to shift to India to live with the petitioner and to start his business in Delhi as the said son of the petitioner cannot leave the petitioner and his wife alone in their old age. Another shop and store on the ground floor is in the tenancy of Mr. John who is running a restaurant in the said portion of the property since long time. There is another tenant Mr. Sachdeva in respect of one store on the ground floor of the suit property and there is also another room situated on the ground floor which is in the tenancy E-92/10 Tarlok Singh Vs. Santosh & others Page 3 of 19 //4// of the respondents and the said room is being used by the respondent no. 1 for residential purposes. The petitioner is also taking steps to get the portions of the property vacated from the aforesaid two tenants. It is prayed that an eviction order may kindly be passed in respect of the suit premises i.e one room situated on the ground floor, the entire first floor consisting of three rooms, verandah, kitchen, bathroom, WC etc. and one room and bath room on the second floor with common use of lobby forming part of property no. 7- A/4, WEA, Channa Market, Karol Bagh, New Delhi.
2. Leave to defend application alongwith affidavits filed on behalf of the respondent no. 1, 7 and 8 wherein it is stated that the site plan filed by the petitioner is wrong and incorrect and respondent has also filed the site plan. It is further stated that the persons for whose benefit the present petition has been filed are not even the members of the family of the petitioner and they are alongwith petitioner are not citizens of India and they are having their own sufficient accommodation in Delhi. The petitioner has purchased farm houses in the joint names of his family members. All of them are earning and have huge properties both in U.K and in Delhi and are not coming to India. All the children of the petitioner are independent financially and are living separately and never been residing in the suit property even when they come to India. It is further stated that the petitioner owns a house bearing no. 5A/88, Sat Nagar, Karol Bagh, New Delhi and the petitioner and his family members have been residing most of the times in said house whenever they come to Delhi. The abovesaid house has more than 10 rooms with the petitioner and petitioner just wants to evict the respondent as the petitioner wants to sell the suit property. Property dealers visit the suit property and offered to purchase the suit property. The petitioner has other suitable and reasonable E-92/10 Tarlok Singh Vs. Santosh & others Page 4 of 19 //5// accommodation available with him in Delhi for his and his family needs. It is further stated that in petition no. E-268/85 titled as Sh. Tarlok Singh Vs. L.R.Thukral and others u/s 14 (1) (a) of DRC Act, hereinafter referred to as former petition, Smt. Asha Menon, then Ld. ARC passed a judgment dated 16.11.99 in favour of the respondent declaring that all the respondents are the tenants and the same was dismissed. The premises were let out for commercial cum residential purposes by the previous/original owner. The respondents are the tenants in respect of one shop on the ground floor and the entire first floor comprising of three big rooms, verandah, kitchen, bath, WC, open space, stairs and further one room, balcony, latrine and open space on the second floor in the property bearing no. 7A/4, WEA, Channa Market, Karol Bagh, New Delhi. In addition the respondents have the staircase in their tenancy. The toilet on the second floor is in exclusive possession of the respondents marked ABCD in the site plan. The portion in the possession of the petitioner on the second floor and the entire construction done by the petitioner on the terrace/third floor is shown in green color in the site plan. The petitioner has a right to use the balcony on the second floor for going to his room on the second floor. The balcony on the second floor is also in exclusive use of the respondents and goods of the respondents are also lying there. It is further stated that originally, the father of the respondents' father Sh. R.N.Thukral was the tenant in respect of the suit premises. He took the premises on the rent in the year 1952 from one Mr. Sardara Singh. Subsequently, Sardara Singh had sold the property to somebody else and then the property was sold to one Sh. Jwala Singh and finally, the petitioner in the present case purported to have purchased the tenanted premises in the year 1970. Petitioner purporting himself to be the owner of the suit premises E-92/10 Tarlok Singh Vs. Santosh & others Page 5 of 19 //6// initially started taking rent from Lajpat Rai Thukral and from respondent no. 6, 7 and 8 and not with R.R.Thukral and respondent no. 9 for letting out the same portion, which was once occupied by respondent no. 7's father. Later the petitioner started taking rent only from respondent no. 7 and since then the respondent no. 7 has been paying the rent regularly either in the court or otherwise. Accordingly, Dr. Kamla Thukral paid the entire rent upto 31 st May, 1985 at the rate of Rs. 180/- per month. The sale of the suit property in favour of the petitioner is non existent and in any case invalid and illegal and as such no right or title has been conferred in favour of the petitioner. It is denied that the wife of the petitioner has been suffering from angina and Generalised Osteoarthrities of both knees and she had got her left knee replaced in December, 2003. It is further denied that the wife of the petitioner is having heart problem. It is further denied that the petitioner is also suffering from Osteoarthrities of both knees since long time and as such it is very difficult for the petitioner to climb stairs and live in the second and third floor portions of the suit property. There is hardly any difference between the first floor and second floor. The petitioner is in possession of ground, second and third floor. The portion on the ground floor in possession of the petitioner is a shop and not a room. The portion on the ground floor of the petitioner is not being used for parking and is being used as a room. The petitioner is also having a toilet on the ground floor also. It is denied that the petitioner has to go to third floor for urinating. All other averments made in the petition were denied.
3. The respondent no. 2 expired and his name was deleted on the request of the Ld. Counsel for the petitioner. Respondent no. 3 to 6 & 9 failed to file leave to defend application despite service through publication.
4. Reply to the leave to defend application alongwith counter affidavit filed E-92/10 Tarlok Singh Vs. Santosh & others Page 6 of 19 //7// on behalf of the petitioner wherein it is denied that the site plan filed by the petitioner is wrong and the site plan filed by the respondent is correct. Common lobby on the second floor has been wrongly shown by the respondents in their tenancy. The bathroom situated on the second floor has been shown by the respondents as toilet. The respondents have wrongly shown four rooms to be in the possession on the third floor of the suit property. However, there are only two rooms, kitchen and toilet on the third floor of the suit property. One big room situated on the third floor of the suit property towards northern side has been wrongly shown by these respondents to be divided into two rooms and in the open terrace out side room on the third floor, the respondents have wrongly shown the existence of a room on the third floor of the suit property. It is denied that balcony on the second floor of the suit property is in the tenancy of the respondents or they are in exclusive possession of the same. It is denied that the petitioner in occupation of nine rooms on the second floor and third floor of the suit property. It is stated that the petitioner and his family members are only in occupation of two rooms with one dining room, one lounge, kitchen and common lobby on the second floor and two rooms, kitchen, toilet and open terrace on the third floor of the suit property. It is denied that petitioner's sons, their wives and their grandchildren are not the family members of the petitioner and they have got other accommodation in Delhi. It is further denied that any farm house has been purchased in the joint names of petitioner's sons or their wives or by petitioner. It is denied that the petitioner has any farm house in Delhi or Gurgaon. It is stated that the house no. 5A/88, Sat Nagar, Karol Bagh, New Delhi does not belongs to the petitioner, the same belonged to Sh. Man Singh who was the general attorney of the petitioner and after the E-92/10 Tarlok Singh Vs. Santosh & others Page 7 of 19 //8// death of Sh. Man Singh, Smt. Amarjit Kaur wife of Late Sh. Baldev Singh is the owner of the aforesaid property. In the earlier litigations between the petitioner and his tenant, Sh. Man Singh was acting as petitioner's attorney and for the said reason, the present counsel of respondent no. 7 had sent notice dated 26.04.2002 to the petitioner through Sh. Man Singh at 5A/88, WEA, Sat Nagar, Karol Bagh, New Delhi which was the residential address of Sh. Man Singh. It is denied that the petitioner or his family members have ever resided in the aforesaid property. It is denied that the petitioner wants to sell the suit property or that the petitioner has ever contacted any property dealer. It is admitted that the suit premises had purchased from Sh. Jawala Singh in the year 1970 by registered sale deed dated 21.08.1970 and Sh. R.N.Thukral was a tenant in respect of three rooms on the first floor and a barsati on the second floor and a room on the ground floor of the suit premises at that time. It is denied that respondent no. 7 had paid rent to the petitioner upto 31.05.1985 in cash or otherwise. It has been held in the previous litigation that the petitioner is owner/landlord of the suit property. It is denied that there is no difference between the first floor and second floor of the suit property. All other averments made in the leave to defend application were denied.
5. Rejoinder alongwith counter affidavit filed on behalf of the respondents no. 1, 7 and 8 to the reply filed on behalf of the petitioner wherein the averments made in the leave to defend application were reiterated and reaffirmed and those made in the reply were controverted.
6. An application alongwith additional affidavit filed on behalf of the respondents no. 1, 7 and 8 to bring some subsequent events on record. The said application was allowed vide order dated 07.02.2012. It is stated in the E-92/10 Tarlok Singh Vs. Santosh & others Page 8 of 19 //9// additional affidavit that the respondent no. 1, 7 and 8 have recently come to know that in a case initiated on the bona fide requirement of the ground floor portion in occupation of D.P.Sachdeva as a shop/residence in the property no. 7-A/4, WEA, Channa Market, Karol Bagh, Delhi, the petitioner has got possession of said one room on the ground floor in case no. E-91/10 in the case titled Tarlok Singh Vs. D.P.Sachdeva, from this court itself. This portion which has come in possession of the petitioner now is a very big room. This portion is just at the back of the shop in occupation of the respondent no. 7 on the ground floor. This portion has been shown in the site plan of the petitioner as a big shop measuring 9.9" width only from within and with walls of 9" each it is 11'3" in width and length of this portion is more than 15'. The respondent has filed a fresh map and therein the accommodation with the petitioner has been described in green color and the portion in joint occupation has been described in yellow color.
7. In reply, the petitioner stated that the possession which was got from Sh. D.P.Sachdeva was merely a store.
8. Arguments heard. Entire record perused and considered.
9. Ld. Counsel for the petitioner relied upon the following rulings :-
(i) Mukesh Kumar Vs. Rishi Prakash, 2009 (2) RCR 485. (ii) J. Chattergee Vs. Mohinder Kaur, 2000, RLR 561 (SC).
(iii) Kuldip Mahajan Vs. Smt. Krishna Uppal and others, 2002 (2) RCR 188.
10. Ld. Counsel for the respondents relied upon the following rulings :-
(i) Chander Sain Berry Vs. Avinash Mithal, 1997 (67) DLT 208.
11. The present petition has been filed u/s 14 (1 ) (e) r/w section 25-B of DRC Act and in order to succeed in such a petition, petitioner has to prove (i) Ownership of the suit premises ; (ii) Purpose of letting; (iii) Alternative E-92/10 Tarlok Singh Vs. Santosh & others Page 9 of 19 //10// accommodation; and (iv) bonafide requirement;. Let the same be discussed in detail.
12. Ownership & Purpose of letting.
The respondents contended that the sale of the suit property in favour of the petitioner is non existent, invalid and illegal and as such, the petitioner has no right or title in the suit premises. The respondent further contended that originally, Sh. R.N.Thukral, the father of the respondents was tenant in respect of the suit premises and he was inducted by Sh. Sardara Singh in the year 1952. Sh. Sardara Singh has sold the suit premises to somebody else and finally, the petitioner purported to have purchased the tenanted premises in the year 1970. The respondents further contended that the respondents paid rent to the petitioner and also deposited the rent in the court u/s 27 of DRC Act. On the other hand, the petitioner stated that he had purchased the suit property in the year 1970 under a registered sale deed and the respondent had paid rent to him but later on they stopped to make payment of rent. There are contradictions in the stand of the respondent regarding the ownership of the petitioner. On the one hand, it is stated that the petitioner purported to have purchased the suit premises in the year 1970 and on the other hand, it is stated that the sale of the suit property in favour of the petitioner is non existent, illegal and invalid. Not only this, the respondents have also admitted that they have paid rent of the suit premises to the petitioner and also deposited the rent in the court u/s 27 of DRC Act. The question arise, if the petitioner is not the owner/landlord of the suit premises then why the respondents paid rent to the petitioner or deposited the rent in the court u/s 27 of DRC Act in the name of the petitioner. From these facts, it is clear that the respondents just want to create confusion in order to raise the E-92/10 Tarlok Singh Vs. Santosh & others Page 10 of 19 //11// triable issue regarding the ownership of the petitioner. The copy of sale deed filed on behalf of the petitioner proves that the petitioner is owner of the suit premises and as the respondents have paid rent to the petitioner, therefore, there is a relationship of landlord and tenant between the parties. Even otherwise, an owner is always a landlord. It is well settled law that landlord is not required to prove absolute ownership as required under the Transfer of Property Act. It was held in Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors., 155 (2008) Delhi Law Times 383 that "A landlord is not required to prove absolute ownership as required under the Transfer of Property Act. He is required that he is more than a tenant".
13. It has also been held in Ramesh Chand Vs. Uganti Devi, 157 (2009) DLT 450 by the Hon'ble High Court of Delhi that, "It is settled preposition of law that in order to consider the concept of ownership under Delhi Rent Control Act, the Court has to see the title and right of the landlord qua the tenant. The only thing to be seen by the Court is that the landlord had been receiving rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner howsoever imperfect his title over the premises cannot stand in the way of an eviction petition under Section 14 (1) (e) of the DRC Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates estoppels against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the E-92/10 Tarlok Singh Vs. Santosh & others Page 11 of 19 //12// premises, to whom he is paying rent, acts dishonestly".
14. In view of the above discussions, I am of the considered view that there is relationship of landlord and tenant between the parties.
15. Purpose of letting The respondents contended that the suit premises were let out for residential cum commercial purposes and the law laid down by the Hon'ble Supreme Court in Satyawati Sharma Vs. Union of India III (2008) SLT 553 is not applicable to the present case. I do not find any substance in these contentions of the respondents as well as submission of the Ld. Counsel for the respondent. It has been held by the Hon'ble High Court in Sarwan Dass Bange Vs. Ram Prakash, RC. REV No. 35/2009, DOD 29.01.2010 by Hon'ble Mr. Justice Rajiv Sahai Endlaw that "Though the respondent/tenant in the present case had disputed the purpose of letting also but the same has w.e.f the pronouncement of the judgment by the Supreme Court in Satyawati Sharma Vs. Union Of India, AIR 2008 SC 3148 ceased to be a part of section 14 (1) (e). A landlord is now not required to establish that the premises were let out for residential purposes only to be entitled to an order of eviction under section 14 (1) (e) of the Act".
16. It is well settled law that an eviction petition on the ground of bona fide requirement u/s 14 (1) (e) of DRC Act can be filed even for those premises which were let out for commercial purposes or for composite purposes i.e commercial cum residential purposes. Accordingly, this ingredient is decided in favour of the petitioner and against the respondents.
17. Alternative accommodation & Bonafide requirement The respondents contended that the petitioner had purchased the farm house in the joint name of his family members in Delhi and the petitioner E-92/10 Tarlok Singh Vs. Santosh & others Page 12 of 19 //13// owned the property bearing no. 5A/88, Sat Nagar, Karol Bagh, New Delhi and the petitioner and his family members have been residing most of the times in said house whenever they come to Delhi. It is further contended that the said property has more than 10 rooms and thus the petitioner has sufficient accommodation available with him. The respondents have also filed additional affidavit to bring subsequent event on record that the petitioner obtained the possession of a room on the ground floor in the suit premises from the other tenant during the pendency of the present petition. On the other hand, the petitioner stated that he does not own any farm house in Delhi and the property bearing no. 5A/88, Sat Nagar, Karol Bagh, New Delhi is owned earlier by Sh. Man Singh who was general attorney of the petitioner and after the death of Sh. Man Singh, the said property is owned by Smt. Amarjit Kaur. The petitioner further stated that the petitioner has filed previous petition, through his attorney Late Sh. Man Singh, therefore, deliberately his address i.e 5A/88, Sat Nagar, Karol Bagh, New Delhi was given in the notice issued by the counsel for the respondent no. 7 but the said property does not belongs to him. The petitioner further stated that he had obtained only a store in another eviction petition on the ground floor in the suit property and not a room as alleged by the respondents.
18. The respondents have not filed any material on record to show that the petitioner owns any farm house or property no. 5A/88, Sat Nagar, Karol Bagh, New Delhi as alleged by them in their leave to defend application. The petitioner has denied that he owns the farm house and the property bearing no. 5A/88, Sat Nagar, Karol Bagh, New Delhi and has even filed the photocopy of the sale deed and Will showing that the said property was bequeathed to Smt. Amarjit Kaur. It is held in Rajender Kumar Sharma & E-92/10 Tarlok Singh Vs. Santosh & others Page 13 of 19 //14// Ors. Vs Leela Wati & Ors, 155 (2008) Delhi Law Times 383 "Mere assertion made by the tenant in respect of landlords ownership of other buildings and in respect of alternate accommodation are not be considered sufficient for grant of leave to defend. Only those averments in affidavit are to be considered by Rent Controller which have some substance in them and are supported by some material". So far the contention of the respondent that the petitioner got one room from another tenant, the petitioner admitted that he has got the possession but it is only a store. For the sake of arguments, if it is assumed that the accommodation with the petitioner obtained from another tenant during the pendency of the petition is a room, even then the requirement of the petitioner will not be fulfilled as the petitioner needs more accommodation.
19. In view of the above discussions, it is established that petitioner does not have any other suitable accommodation with him. Thus, this ingredient is also decided in favour of the petitioner and against the respondents.
20. Bonafide requirement The respondents contended that the persons for whom benefit, the present petition has been filed are not even the family members of the petitioner and they are not the citizens of India. It is further contended that the family members of the petitioner do not depend upon the petitioner financially as well as emotionally and they are well settled in the U.K. The respondents further contended that the petitioner and his wife are healthy and not suffering from angina and Generalised Osteoarthritis of both knees. On the other hand the petitioner stated that he and his wife are of old age and it is difficult for them to live in U.K in winter season due to very cold there and he comes to India and stay here from September to May every year alongwith his wife. It is E-92/10 Tarlok Singh Vs. Santosh & others Page 14 of 19 //15// further stated that when petitioner comes to India alongwith his wife, other family members also come to stay in India with the petitioner. Not only this, now the petitioner has made up his mind to stay permanently in India alongwith his other family members. The petitioner has married sisters who also visit the petitioner. The petitioner further stated that he has only one room on the ground floor which is being used for car parking by the petitioner. The petitioner has two small bed rooms, one dining, one lounge and one kitchen on the second floor and two rooms and one kitchen which is in dilapidated condition and one toilet on the third floor of the suit property. The petitioner is residing on the second floor but there is no toilet on the second floor and he has to go to urinate, even at night, on the third floor.
21. It is not in dispute that the petitioner is a senior citizen and his wife is also senior citizen. The medical papers filed on behalf of the petitioner shows that petitioner and his wife are suffering from angina and Generalised Osteoarthritis of both knees. It is held in Dev Raj Bajaj Vs. R.K.Khanna, 1996, RLR, 125 that where the landlord and his wife were old aged then this fact alone is sufficient for eviction of the tenant from the ground floor. A landlord can ask for ground floor for his convenience and comfort for his health. The petitioner has only one room on the ground floor and one more room/store which he got during the pendency of this petition. The one room is used by the petitioner for parking of his car on the ground floor. Thus, it is clear that the petitioner has no accommodation on the ground floor. The petitioner is residing on the second floor. Considering the old age of the petitioner and his wife and as they are enable to climb up stairs, therefore, it is a bona fide requirement of the petitioner to live on the ground floor or first floor but no accommodation are available to the petitioner on these floors. Not E-92/10 Tarlok Singh Vs. Santosh & others Page 15 of 19 //16// only this, the petitioner has not even having a toilet on the second floor and in old age, he has to go to the third floor to urinate, even at night. This again proves that the need of the petitioner to come to the first floor where latrine and bathroom are available is genuine. The other contention of the respondent that the family members of the petitioner do not depend upon the petitioner financially or emotionally again has no substance. When the petitioner and his wife are of old age and the sons and grand children would come to stay with the petitioner and the petitioner would need accommodation for them also. It is held in M.M.Mehta Vs. Chaman Lal,1980 RLR(Note)30 that "that it is well settled that a member of the family although not financially dependent on the landlord but living together with him is covered by the word dependent used in section 14 (1) (e)".
22. The respondents disputed the site plan filed by the petitioner. According to the respondents, they are in possession one shop on ground floor, entire first floor and one room, balcony, latrine (toilet) as shown marked ABCD and open space on the second floor. The respondents have tried to show that the open space/common lobby on the second floor in their possession and the same is part of tenancy. However, this stand of the respondents is self contradictory. The respondents admitted that the petitioner has a right to use the balcony on the second floor for going to his room on the second floor. From this averment it is clear that the balcony which respondent have shown in their site plan as tenanted premises is common lobby to be used by both the parties, therefore, it cannot be said to the part of tenanted premises. This common lobby is only a common passage. From the site plan of both the parties, it is clear that whenever any one come on the second floor, he first comes to the said common lobby only then he can go to the premises of the E-92/10 Tarlok Singh Vs. Santosh & others Page 16 of 19 //17// petitioner and of the respondents. The petitioner without using common lobby cannot enter his accommodation on the second floor. Considering the old age of petitioner and his wife, the accommodation available on third floor is not of much relevancy. Thus, the contention of the respondent that the site plan of the petitioner is wrong has no substance.
23. The respondents further contended that the petitioner wants to sale the suit property and the property dealers used to visit the suit premises and even insisted the respondents to vacate the suit premises and offered to purchase the suit property. I do not find any substance in this contention of the respondents as there is a protection to the tenant u/s 19 of DRC Act that in case the landlord let out or sell the property within three year of its acquisition, tenant can file a petition to get back the possession.
24. The respondent further contended that the present petition is bad for non-joinder of necessary parties and all respondents are tenant in the suit premises. This contention again has no substance because admittedly Sh. R.N.Thukral, father of the respondents was the tenant in the suit premises. It is well settled law that after death of tenant his legal heirs become joint tenant and not co-tenants. It was held in Inderpal Khanna Vs. Commander Bhupinder Singh Rekhi, 2008 VIII AD (Delhi) 328 that "It is settled law that on death of tenant, tenancy devolves upon legal heirs as a joint tenancy. LRs are joint tenants and not tenants in common. Where out of many, only one or two LR of deceased tenant are in occupation of premises, an eviction petition by landlord against those who are in occupation of the premises is a valid petition. It is not necessary for landlord to implead all the legal heirs of the deceased tenant or to implead even those who are not in occupation and possession of the E-92/10 Tarlok Singh Vs. Santosh & others Page 17 of 19 //18// premises".
25. Ld. Counsel for the respondents vehemently argued that the petitioner and his family members are settled in UK and they have just filed this eviction petition to vacate the respondents and the petitioner have no intention to come back to India. In view of the judgment discussed below these submissions of the Ld. Counsel for the respondents have no substance.
26. It is held in Saroj Khemka Vs. Indu Sharma, 79 (1999) DLT 120 that "the landlord had been a resident abroad and had filed the eviction petition pleading requirement for the reason of intent to shift to India. This court while affirming the order of the Controller rejecting the application of the tenant for leave to defend, held that no court can compel a person to stay in a house of his relative or in a hotel and because the said person is staying abroad, he has no right to stay in his own premises. It was held that if a person is residing abroad and owns a house/flat in Delhi and wants to spend a few weeks or a few months in Delhi, then he/she must be allowed to stay in his/her own house.
27. Similarly in T.D.Dhingra Vs. Pritam Rai Khanna 48 (1992) DLT 208 it was held that there is no provision of law whereby an Indian who had acquired foreign citizenship is disentitled to enjoy residence in his own property in India when he chooses to return to India. Also, in S.P.Kapoor Vs. Kamal Mahavir Prasad Murarka, 97 (2002) DLT 997 held that if a landlord/owner is permanently settled outside Delhi but his visits to Delhi are frequent, his need, even for temporary stay in his own premises, has to be viewed as a bonafide need.
28. In view of the above discussions, I am of the considered view that the respondents have failed to raise any triable issue. On the other hand, the E-92/10 Tarlok Singh Vs. Santosh & others Page 18 of 19 //19// petitioner has successfully established that he bona fidely needs the suit premises for himself and for other family members as the petitioner wants to shift to India alongwith his wife and other family members but the petitioner has no other suitable accommodation available with him except the tenanted premises. Hence the petitioner is entitled for an eviction order u/s 14 (1) (e) r/w section 25-B of DRC Act.
29. Accordingly, the application of the respondents seeking leave to defend is dismissed and the petitioner is entitled for an eviction order and therefore an eviction order u/s 14 (1) (e) r/w section 25-B of D.R.C. Act is passed in favour of the petitioner and against the respondents in respect of the tenanted premises i.e one room situated on the ground floor, the entire first floor consisting of three rooms, verandah, kitchen, bathroom, WC etc. and one room and bath room on the second floor with common use of lobby forming part of property no. 7-A/4, WEA, Channa Market, Karol Bagh, New Delhi, more specifically shown in red color in site plan Ex. C-1 (exhibited today while passing the order). However, it is made clear that the petitioner shall not be entitled to get the eviction order executed before expiry of six months running from today. No order as to cost.
File be consigned to Record Room.
(Announced in the open court (Pritam Singh)
on 02.03.2012) ARC/Central/THC/Delhi
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