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[Cites 6, Cited by 0]

Delhi District Court

Smt. Vimla Rani vs Sh. Sanat Kumar on 29 June, 2015

  IN THE COURT OF SHRI SANDEEP GARG:  ADMINISTRATIVE 
     CIVIL JUDGE­ CUM­ ADDITIONAL RENT CONTROLLER 
                    (CENTRAL) : DELHI



E­209/2013
Unique ID No : 02401C0178462013

In the matter of:­

Smt. Vimla Rani,
W/o Sh. Kuldeep Kumar,
R/o 272, Gali Kunj,
Dariba Kalan, Chandni Chowk,
Delhi­110006.
                                                                                           ....Petitioner     

                                                   Versus

Sh. Sanat Kumar,
S/o Late Sh. Yaseen,
R/o 272, Ground Floor, Gali Kunj,
Dariba Kalan, Chandni Chowk,
Delhi­110006.
                                                                       .....Respondent



O R D E R:

1. Vide this order, an application for leave to defend, filed on behalf of the respondent under Section 25­B (4) of The Delhi Rent Control Act, 1958 (hereinafter referred to as DRC Act, 1958) seeking leave to contest the E­209/2013 Page 1/22 present eviction petition is disposed of.

2. The present eviction petition has been filed by the petitioner namely Smt. Vimla Rani against the respondent namely Sh. Sanat Kumar. It is averred that the petitioner is the owner and landlady of property bearing no. 272, Ground Floor, Gali Kunj, Dariba Kalan, Chandni Chowk, Delhi­110006 having purchased the same vide duly registered sale deed dated 11.05.2005 vide regn. no. 2664 in Book No.1, Volume No.1438, on pages 113 to 124 dated 12.05.2005.

3. The respondent is a tenant in respect of one room in property bearing no. 272, Ground Floor, Gali Kunj, Dariba Kalan, Chandni Chowk, Delhi­110006, as shown in red colour in the site plan at a monthly rent of Rs. 110/­. The premises was let out to the respondent by the previous owner without any written rent agreement for residential purposes, but the respondent is using the said room for shop without written consent of the previous owner and of the petitioner.

E­209/2013 Page 2/22

4. The petitioner requires the tenanted premises for bonafide use of the petitioner/owner for the residence of her mother­in­law, Smt. Ram Kali who is dependent upon the petitioner for her residence and for all purposes. Smt. Ram Kali, mother­in­law of the petitioner is aged about 78 years and is suffering from osteoporoses beside acute knee pain and old age ailments. The attending doctor of Lok Nayak Hospital, New Delhi has advised her to avoid squatting and climbing of stairs. The petitioner alongwith her mother­ in­law with rest of the family members consist of husband, a son and a daughter, who are residing on the first floor of property no. 272, Gali Kunj, Dariba Kalan, Chandni Chowk, Delhi­110006. The mother­in­law suffers acute pain while climbing the stairs to the first floor as well as for coming on the ground floor due to osteoporoses.

5. The petitioner has no other alternative accommodation either in the suit property or on the ground floor or anywhere else to accommodate the mother­in­law who is facing too much problem for climbing to first floor. Smt. Ram Kali, mother­in­law of the petitioner also do not have any other accommodation to live on the ground floor and is solely dependent upon the E­209/2013 Page 3/22 petitioner for residence as well as financially and physically. The portion in possession of the petitioner in the suit premises is also insufficient to accommodate the entire family members for their residence.

6. The family of the petitioner consists of husband, aged about 48 years; mother­in­law, aged about 78 years; son Mr. Akshay, aged about 21 years and daughter Ms. Ankita, aged about 19 years. Both the children of the petitioner are students of B.A. Final and Class 11th respectively. The petitioner is having residential accommodation in her possession which consists of one room (L­Type), kitchen, one bath on first floor, W.C. on second floor, two rooms, three small size store on fourth floor, as shown in yellow colour in the site plan. The portion on the fourth floor shown in yellow colour is being used by the employees of the husband of the petitioner for their residence as well as for keeping the catering raw material. The accommodation available with the petitioner is not sufficient to accommodate her entire family dependent upon her for residence.

7. The portion shown in green colour in the site plan is in E­209/2013 Page 4/22 occupation of other tenants of the petitioner. The portions shown without any colour in the site plan are owned by other owners of the property i.e. other than the petitioner. The portion shown in red colour in the site plan on ground floor is in occupation of the respondent and the petitioner is owner thereof. The portion shown in blue colour is common portion for use of all the owners. The petitioner is socially, morally and legally liable to accommodate her mother­in­law in the portion at ground floor for her residence as per medical advise.

8. The respondent is a habitual defaulter in payment of rent and the respondent has now filed petition U/s 27 of DRC Act vide DR No. 267/2012 for deposit of rent of tenanted premises for the period from 01.12.2010 to 01.12.2012. The petitioner is also owner of property consisting of ground floor and fourth floor only built­up on 25 sq. yds. bearing no. E­63, Ganesh Nagar, Laxmi Nagar, Delhi which is in possession of tenants and is also not suitable for the mother­in­law as she cannot be allowed to live separately alone there. It is prayed that an eviction order may be passed in respect of the tenanted premises as shown in red colour in the site plan. E­209/2013 Page 5/22

9. The respondent has filed an application for leave to defend and contest U/s 14 (1) (e) r/w Section 25­B of DRC Act. It is averred that the respondent is in possession of the tenanted premises from last more than 36 years i.e. a very small shop measuring about 7'­8'' X 4'­5'' and the respondent is doing the business of polishing the ornaments of jewellery as the tenanted premises is situated in the famous jewellery market Dariba Kalan, Chandni Chowk, Delhi.

10. The small shop is not fit for human habitation as claimed by the petitioner. There is no bathroom and toilet around the shop which is clear from the site plan filed by the petitioner. If old aged mother­in­law of the petitioner would reside in the premises, she will require separate toilet and bathroom, which is not available in the tenanted premises. The petitioner is having residential accommodation in her possession which consists of one room L­Type, kitchen, one bath on first floor, which is most suitable for the mother­in­law of the petitioner, who is alleged to be suffering from osteoporoses as well as knee pains. The site plan filed by the petitioner E­209/2013 Page 6/22 clearly shows no toilet, bathroom on the ground floor. Hence the mother­in­ law of the petitioner will suffer too much without toilet and bathroom on the ground floor.

11. The petitioner is the owner of the property consisting of ground floor, first floor, second floor, third floor and fourth floor bearing no. E­63, Ganesh Nagar, Laxmi Nagar, Delhi, which is most suitable for her mother­ in­law as it has suitable residential accommodation with three rooms on the ground floor with toilet and bathroom and all the necessities. As per the site plan filed by the petitioner, there are big rooms with bathroom, kitchen available on the first floor of the tenanted premises, which is most suitable for residence of mother­in­law of the petitioner. As per site plan filed by the petitioner, there are various rooms on first floor, second floor, third floor and fourth floor which are available to the petitioner, but the petitioner filed false and frivolous petition for bonafide requirement.

12. The petitioner harassed the respondent to increase the rent and threatened to dispossess from the shop for which the respondent filed a civil E­209/2013 Page 7/22 suit for permanent injunction against the petitioner, which was listed in the court of Sh. Sanjeev Kumar Malhotra, Ld. Senior Civil Judge, District Courts, Tis Hazari, Delhi, wherein in February, 2011, the petitioner stated that she will not dispossess the respondent from the shop without due process of law. Thereafter, the respondent filed a petition U/s 27 of DRC Act and deposited rent due to the petitioner and after receiving notice of the D.R. Petition, the petitioner has filed the present petition, which is only a counter blast.

13. The petitioner has sufficient accommodation for residence for herself as well as her family. The petitioner has concealed material facts from the court. The petitioner filed a detailed site plan which shows the accommodation available with her and her family members, but she falsely claim bonafide requirement of a shop for the residence of her ailing mother­ in­law. As per the sale deed filed by the petitioner, it is clear that she purchased the property from her mother­in­law for Rs. 6 lacs, so her mother­ in­law has sufficient means to reside as per status. The sale deed further shows that the suit property is having 13 tenants including the shop of the E­209/2013 Page 8/22 respondent. The portions in site plan which are shown as vacant, are in possession of those 12 tenants. Some of them are residing on the ground floor with bathroom and toilet, which is more suitable for her mother­in­law and other tenants who are occupying the suit property, are not shown in any colour by the petitioner intentionally and deliberately.

14. The petitioner has sufficient accommodation and the petitioner is a very greedy lady and she wants to let out the tenanted premises at higher rent that is why the petitioner wants to evict the respondent. The petitioner does not require accommodation as alleged for her ailing mother­in­law. The petitioner made a fictitious ground and filed a false petition against the respondent only to harass the respondent. The petitioner does not require the disputed premises for residential use. The petitioner is smoothly living in the premises, which is in her possession and does not require any further accommodation for residence for herself and her family.

15. The mother­in­law of the petitioner is not suffering from any disease as alleged to be suffering from osteoporoses as well as knee pains. E­209/2013 Page 9/22 The petitioner has not filed any authentic previous medical documents of the treatment. The petitioner filed recent medical documents showing the date of treatment as February and March, 2013 and the same are false and fabricated. The petitioner and her mother­in­law are rich persons and have handsome resources for the treatment of alleged knee pain as knee replacement surgery is available and after getting knee replacement, any person can walk smoothly. The cost of knee replacement surgery is Rs. 1,50,000/­ only which the petitioner can easily bear.

16. The petitioner filed her reply alongwith counter affidavit to the application for leave to defend, filed by the respondent and has denied the allegations leveled by the respondent in his application for leave to defend and reaffirmed her stance, as averred in the petition. It is denied that the tenanted room is situated in famous jewellery market of Dariba Kalan, Chandni Chowk, Delhi. As a matter of fact, the tenanted premises is situated in residential area in a street of Dariba Kalan and not in the jewellery market. It is denied that the tenanted shop is not fit for human habitation. Indeed, there is a toilet on the ground floor, situated near the tenanted room which is E­209/2013 Page 10/22 evident from the site plan filed with the petition and therefore, the mother­in­ law of the petitioner will not face any difficulty in residing at the ground floor in the tenanted room. It is averred that there is no toilet on the first floor of the property and the mother­in­law of the petitioner will have to further climb to second floor for using toilet which is against advise of the doctors.

17. It is denied that the petitioner is owner of property bearing no. E­63, Ganesh Nagar, Laxmi Nagar, Delhi, consisting of ground floor, first floor, second floor, third floor and fourth floor. As a matter of fact, the petitioner is owner of only ground and fourth floors of the said property which is in possession of tenants and not suitable for mother­in­law of the petitioner as she cannot be allowed to live separately in isolation due to her old age and ailments. The mother­in­law of the petitioner requires the assistance of the petitioner and her grandchildren at all times and for all purposes. It is denied that the petitioner harassed the respondent for increasing the rent and threatened to dispossess him from the tenanted room. The property in question was purchased by the petitioner from her mother­ E­209/2013 Page 11/22 in­law for a sum of Rs. 1 lac only and not Rs. 6 lacs, as alleged by the respondent. This fact is also evident from the copy of sale deed filed alongwith the petition. The doctor has not yet advised knee replacement surgery to mother­in­law of the petitioner.

18. Respondent filed rejoinder and allegations leveled by the petitioner have been controverted and rebutted. The averments made in application for leave to defend have been reiterated and reaffirmed.

19. The court has heard submissions advanced on behalf of both the parties and has perused the material on record.

20. While deciding the question as to whether leave to defend should be granted or refused, the Court is required to examine the case on the following aspects :­

(a) That the petitioner is owner of the tenanted premises;

(b) Purpose of letting;

(c) That the premises is required bonafide by the petitioner; and E­209/2013 Page 12/22

(d) That the petitioner has no other alternative suitable accommodation in Delhi.

21. In Precision Metal & Engg. Works Vs. Prema Deva, Niranjan Deva Tayal, AIR 1982 SC 1518, it has been held that "while deciding the application for leave to contest, the controller has to confine himself to the affidavit filed by the tenant under Sub Section (4) and the reply if any. On perusing the affidavit filed by the tenant and the reply if any filed by the landlord, the controller has to pose to himself the only question, "Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in clause of the proviso to Section 14 (1)?". The controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against the other set of affidavits."

The gist of the various decisions is that if any triable issue is raised in the application which can not be decided unless the parties lead evidence, leave to contest should be granted. In all other cases, the leave has to be refused.

E­209/2013 Page 13/22

22. In Rita Lal Vs. Raj Kumar Singh (2002) 7 SCC 614, Hon'ble Supreme Court has observed as under :­ "If the Court is satisfied that though in the pleadings an issue is raised but that is not a triable issue then the Court is justified in refusing the leave to defend. A defence, which is practically moonshine, sham or illusory can not be held to be raising a triable issue. Else the whole purpose behind enacting a provision for granting leave to defend, and not permitting a contest unless leave was granted, would stand defeated." Ownership

23. The respondent has not disputed the ownership and landladyship of the petitioner. Accordingly, the court holds that the petitioner is owner of the tenanted premises and she is landlady in respect of the tenanted premises, qua the respondent.

Purpose of Letting

24. Purpose of letting has become redundant as in Satyawati Sharma E­209/2013 Page 14/22 Vs. Union of India 148 (2008) DLT 705 Supreme Court, it has been held that the premises let out either for residential or for commercial purposes can be got vacated by the landlord for bonafide requirements. Availability or Non­Availability of alternative suitable accommodation in Delhi

25. It is contended on behalf of the respondent that the petitioner is having one L­Type room, kitchen and bathroom on the first floor which is more suitable for her mother­in­law. The petitioner is owner of property bearing no. E­63, Ganesh Nagar, Laxmi Nagar, Delhi which consists of ground floor, first floor, second floor, third floor and fourth floor. The said accommodation is most suitable for mother­in­law of the petitioner as it is having three rooms on the ground floor with toilet, bathroom and other necessities. Moreover, there are various rooms on the first floor, second floor, third floor and fourth floor of the suit property which are most suitable for mother­in­law of the petitioner.

26. Per contra, it is denied by the petitioner that there is a bathroom E­209/2013 Page 15/22 on the first floor of the suit property. It is denied that the petitioner is owner of property bearing no. E­63, Ganesh Nagar, Laxmi Nagar, Delhi which consists of ground floor, first floor, second floor, third floor and fourth floor. As a matter of fact, the petitioner is owner of only ground and fourth floors of the said property which is in possession of tenants and not suitable for mother­in­law of the petitioner as she cannot be allowed to live separately in isolation due to her old age and ailments. The mother­in­law of the petitioner requires the assistance of the petitioner and her grandchildren at all times and for all purposes. It is denied that there are various rooms on the first floor, second floor, third floor and fourth floor of the suit property which are most suitable for mother­in­law of the petitioner.

27. The court is of the considered view that as per the site plan filed by the petitioner, there is no toilet on the first floor of the suit property and there is only one bathroom on the first floor. A W.C. is situated at second floor of the suit property. The site plan filed by the petitioner has not been controverted by the respondent by filing a separate site plan. Moreover, as per the medical record of her mother­in­law, filed by the petitioner, she has E­209/2013 Page 16/22 been advised by doctors of a government hospital to avoid climbing stairs and use western style toilet seat. Therefore, the court holds that first floor of the suit property is not alternative suitable accommodation to meet the specific requirement of mother­in­law of the petitioner. Similarly, the respondent has failed to file any document to establish that the petitioner is owner of ground floor, first floor, second floor, third floor and fourth floor of property bearing no. E­63, Ganesh Nagar, Laxmi Nagar, Delhi. Therefore, the court holds that the petitioner has established that she is owner of only ground and fourth floors of the said property which is in possession of tenants. Moreover, the said property cannot be considered to be suitable for mother­in­law of the petitioner as she cannot be expected to live separately in isolation in her old age. Accordingly, the court holds that the petitioner is not having any other reasonably suitable accommodation for residential purposes for her family including her mother­in­law and the respondent has not been able to raise any triable issue on this aspect.

Bonafide requirement

28. It is contended on behalf of the respondent that as per the site plan E­209/2013 Page 17/22 filed by the petitioner, there is no toilet on the ground floor and therefore, the tenanted shop is not suitable for mother­in­law of the petitioner. The petitioner harassed the respondent for increasing the rent and threatened to dispossess him from the tenanted shop. The respondent had filed a civil suit for permanent injunction against the petitioner. The present petition has been filed as a counter blast to petition U/s 27 of the DRC Act filed by the respondent. The mother­in­law of the petitioner had got Rs. 6 lacs as sale consideration amount for sale of the suit property in favour of the petitioner. Therefore, she is having adequate means to reside as per her status. The petitioner wants to re­let the tenanted shop at higher rent. The copies of medical record filed by the petitioner are forged and fabricated. No authentic previous medical record of the treatment of mother­in­law of petitioner has been filed. The mother­in­law of the petitioner can undergo knee replacement surgery which costs only Rs. 1.5 lacs after which a person can walk smoothly. Therefore, the alleged requirement of the petitioner is not bonafide.

29. Per contra, it is averred on behalf of the petitioner that as per the E­209/2013 Page 18/22 site plan filed by the petitioner, there is a toilet on the ground floor, situated near the tenanted room and no difficulty will be faced by mother­in­law of the petitioner. It is denied that the petitioner harassed the respondent for increasing the rent and threatened to dispossess him from the tenanted shop. It is also denied that the present petition has been filed as a counter blast to petition U/s 27 of the DRC Act filed by the respondent. It is denied that the mother­in­law of the petitioner had got Rs. 6 lacs as sale consideration amount for sale of the suit property in favour of the petitioner. As a matter of fact, the sale consideration amount in respect of suit property was Rs. 1 lac only which is also evident from copy of the sale deed filed alongwith the petition. It is denied that the mother­in­law of petitioner is having adequate means to reside as per her status. It is denied that the petitioner wants to re­ let the tenanted shop at higher rent or that the copies of medical record filed by the petitioner are forged and fabricated. It is well settled law that a tenant cannot dictate terms to the landlord. Moreover, the doctors have not advised knee replacement surgery to mother­in­law of the petitioner.

30. The court is of the considered view that as per the site plan filed E­209/2013 Page 19/22 by the petitioner, there is one toilet situated on the ground floor. Moreover, it is no longer res integra that a landlord is best judge of his requirements and neither the tenant, nor the court can sit into appeal on the judgment of the landlord in respect of his requirement. It is for the petitioner and her mother­in­law to examine and evaluate as to how mother­in­law of the petitioner will be able to use the tenanted room/shop for her residential purposes in the absence of a toilet. In any case, if the mother­in­law of the petitioner does not use the tenanted room/shop for her residential purposes, the respondent has got a statutory right of re­entry U/s 19 (2) of the DRC Act. Therefore, it does not lie in the mouth of the respondent to claim that the tenanted shop is not suitable for mother­in­law of the petitioner. Earning Rs. 1 lac towards sale of the suit property is immaterial for determining the current requirement of mother­in­law of the petitioner. The respondent has failed to file any document to establish that the copies of medical record filed by the petitioner are forged and fabricated. It is no longer res integra that the tenant cannot dictate terms to the landlord. Therefore, the respondent cannot be permitted to suggest that the mother­in­law of the petitioner can undergo knee replacement surgery which costs only Rs. 1.5 lacs after which E­209/2013 Page 20/22 a person can walk smoothly. Accordingly, the court holds that the petitioner has been successful in prima facie establishing that she requires the tenanted room/shop bonafidely for use by her aged mother­in­law for residential purposes.

31. In view of the above discussion, the Court is of the view that the respondent has failed to set up any triable issue which requires inquiry or trial. In other words, prima­facie there is nothing on record which would dis­entitle the petitioner of the right of immediate possession in respect of the tenanted premises.

32. Accordingly, the application under Section 25­B (4) of Delhi Rent Control Act, 1958, filed by the respondent is dismissed. The petition is allowed and eviction order is passed in favour of the petitioner and against the respondent in respect of one room in property bearing no. 272, Ground Floor, Gali Kunj, Dariba Kalan, Chandni Chowk, Delhi­110006, as shown in red colour in site­plan attached alongwith the petition. This order shall not be executable before expiry of six months from the date of this order. Parties E­209/2013 Page 21/22 to bear their own costs.

File be consigned to Record Room. 

Announced in the open court                           (SANDEEP GARG)
on 29.06.2015                                       Administrative Civil Judge ­cum­
                                             Additional Rent Controller (Central)  
                                                                  Delhi/29.06.2015




E­209/2013                                                                                      Page 22/22
                                                                                          E­209/2013


29.06.2015

Present  : None for petitioner.

               Respondent in person.

Vide separate order of even date, application for leave to defend, filed by the respondent is dismissed. The petition is allowed and eviction order is passed in favour of the petitioner and against the respondent in respect of one room in property bearing no. 272, Ground Floor, Gali Kunj, Dariba Kalan, Chandni Chowk, Delhi­110006, as shown in red colour in site­ plan attached alongwith the petition. This order shall not be executable before expiry of six months from the date of this order. Parties to bear their own costs.

File be consigned to Record Room.

(Sandeep Garg) ACJ­cum­ARC (Central) Delhi/29.06.2015 E­209/2013 Page 23/22