Delhi District Court
Sh. Vinod Kumar vs Smt. Satinder Kaur on 1 October, 2013
IN THE COURT OF Ms. ANU MALHOTRA : DISTRICT &
SESSIONS JUDGE / ARCT (WEST) : DELHI.
ARCT-45/2013
Unique Case ID No.02401C025142013
Sh. Vinod Kumar
S/o late Chiranji Lal
R/o 18/31-A, East Patel Nagar,
New Delhi .....Appellant
Versus
Smt. Satinder Kaur
W/o Shri Jasbir Singh
R/o R-535, New Rajinder Nagar,
New Delhi ....Respondent
Date of Institution : 23.05.2013
Date of reserving the order : 20.09.2013
Date of pronouncement : 01.10.2013
JUDGMENT
This Judgment shall dispose off an appeal instituted on 23.05.2013 by the appellant/tenant of premises No. 18/31-A, Ground Floor, East Patel Nagar, New Delhi against the respondent herein i.e. Satinder Kaur, the landlady against the impugned order dated 06.05.2013 of the ld. Rent Controller (West) whereby the application under Order VII Rule 11 of CPC, 1908 filed by the appellant / tenant was dismissed whereby the tenant/appellant had sought rejection of the eviction petition No. 29/2011 filed by the landlady on the grounds of bonafide necessity, contending that the landlady had filed the eviction petition claiming that the premises in question were required were required by her for her own necessity and her sons who were not ARCT-45/2013 Page 1/17 in occupation of reasonable accommodation and that the plea of the landlady that her sons were 'dependent upon her', had not been pleaded and thus the parameters of Section 14(1) (e) of the Delhi Rent Control Act, 1958 were not fulfilled and the petition was required to be rejected outright.
Notice of the appeal was issued to the respondent/landlady, who has put in appearance and filed the reply and has contested the petition. The records of the ld. trial Court were requisitioned. Arguments were addressed on behalf of appellant by ld. counsel for the appellant Shri T.L. Garg and on behalf of the respondent by ld. counsel for respondent Shri Neeraj Tyagi.
A perusal of the eviction petition filed on 26.11.2008 under Section 14(1) (e) read with Sec. 25-B of the Delhi Rent Control Act, 1958 as amended wherein qua paragraph 18 (a) i.e. ground on which eviction of tenant is sought, the landlady filed Annexure-A which reads to the effect that:-
"...............................................................................
2. That the suit premises are required by the petitioner for her own bonafide necessity and for the necessity of her family members. The petitioner has got a husband namely Shri Jasbir Singh, and two sons namely S/o Shri Pawandeep Singh and Amandeep Singh.
3. That the husband of the petitioner is carrying on the business in premises No. XVI/2593, ground floor, Block M, Gali No.4-5, Beadonpura, Karol Bagh, New Delhi. The said shop is situated on the ground floor in gali / Street no. 4-5 at Beadonpura, Karol Bagh, New Delhi and is owned by the petitioner.ARCT-45/2013 Page 2/17
4. That Shri Pawandeep Singh is aged 23 years and has got no place for doing the business as the husband of the petitioner is carrying on the business in premises no. XVI/2593, ground floor, Block M, Gali no. 4-5, Beadonpura, Karol Bagh, New Delhi.
5. That the premises in question are required by petitioner for carrying on the business along with her son namely Shri Pawandeep Singh and Shri Pawandeep Singh wants to carry on the business of ladies suits and cloth materials etc. in the demised premises.
6. That Shri Pawandeep Singh is a Graduate and at present is carrying on the business of cloth materials and ladies suit etc. from his residence bearing No. R-535, New Rajinder Nagar, New Delhi.
7. That he has got a bank account from the residential address and he has got no place to work.
8. That the demises premises are required by the petitioner and her son Shri Pawandeep Singh for carrying on the business as stated above.
9. That the younger son of the petitioner Shri Amandeep Singh is also doing Graduation from Delhi University by correspondence course and he will also work with the petitioner in the said business in demised premises.
10. That the premises in question are required by the petitioner for his own bonafide necessity ARCT-45/2013 Page 3/17 and the petitioner and her sons are not in occupation of reasonable accommodation.
11. That in view of the recent pronouncement of the Hon'ble Supreme Court of India, the premises in question can be got vacated for the personal necessity and, therefore, the petitioners are filing the present petition on this ground "
A catena of verdicts have been relied upon on behalf of either side.
Through the application under Order 7 Rule 11 r/w 151 of the CPC dated 18.04.2013 the respondent to the eviction petition No. 29/2011 i.e. the present appellant submitted that the petitioner i.e. the landlady had nowhere pleaded in her petition that her sons are "dependent upon her" and that they had no other "reasonably suitable accommodation". It was further submitted by the appellant through his application under Order 7 Rule 11 of the CPC that he had in his written statement stated that:
"that the Petitioner is a house-wife and as per the case, bonafide need primary is of her son. Landlady, while laying claim for her sons have not pleaded ingredients of Section 14(1)(e) that "they are dependent on her" and that they have "no other"
reasonably suitable accommodation"
to which the landlady in reply had stated "in reply to para 10 of the preliminary facts and objections of the written statement it is to be submitted that the Petitioner being a house wife and her case for bonafide need primary being for her son is not denied"
"The allegation that petitioner while laying claim for her ARCT-45/2013 Page 4/17 sons have not pleaded ingredients of Section 14(1)(e) that they are dependent on her and they have no other reasonably suitable accommodation is absolutely wrong."
The applicant / respondent i.e. the present appellant thus claimed that as it had not been pleaded by the land lady that her sons were dependent upon her, no evidence to that effect could be allowed to be led and that the eviction petition was liable to be rejected. It was further submitted by the appellant that the Delhi Rent Control Act 1958 as amended having been designed to protect tenants from unreasonable eviction, care had to be taken that restrictions which had been imposed therein were rigorously adhered to fulfill the purpose of the statute.
A catena of judgment has been relied upon on behalf of the appellant tenant and on behalf of the respondent.
On behalf of the appellant reliance was placed Dr. (Mrs.) N.D. Khanna Vs. M/s. Hindustan Industrial Corporation, New Delhi (1979) 305 to reiterate that to retreat that in the absence of specific pleadings in the plaint even though the replication may be part of the pleading, the eviction petition in the absence of pleadings (setting forward the fact forming the cause of action) was liable to be rejected;
the verdict of the Hon'ble Supreme Court in Saleem Bhai Vs. State of Maharashtra and Others (2003) 1 Supreme Court Cases 557 to the effect that the facts germane for adjudication of an application under Order 7 Rule 11 of the CPC are the averments in the plaint and the Court can exercise its power at any stage;
ARCT-45/2013 Page 5/17the verdict of the Hon'ble Supreme Court in the Samar Singh Vs. Kedar Nath and Another AIR 1987 Supreme Court 1926 to the effect that the provision of Order 7 Rule 11 of the CPC where the cause of action was not brought forth to be in existence, the petition was liable to be rejected at any stage even without permitting evidence to be led;
in the case Ram Sukh Vs. Dinesh Aggarwal (2009) 10 Supreme Court cases 541 to reiterate that the entire cause of action needed to be pleaded or else the petition would be liable to be rejected;
Harmohinder Singh Pradhan Vs. Ranjeet Singh Talwandi and Others (2005) 5 Supreme Court Cases 46 also to contend that all facts required to be pleaded to form the cause of action including specific words of the enactment for instance in the instant case the absence of the user of the word 'dependent' i.e. the sons of the petitioner being dependent on the petitioner, suffice to bring forth the absence of the existence of any cause of action in favour of the landlady and that the petition under Section 14(1)(e) of the DRC Act 1958 as amended, was liable to be rejected.
Indian Aluminum Cables Limited Vs. Bawa Sandeep Singh and others of All India Rent Control Journal IV-1987(1) 430 to contend that an application under Order 7 Rule 11 of the CPC requires only the Court to look into the pleadings in the plaint/ petition and to nothing else;
Valiyil Moideenkunhi and others Vs. Edacherikkandi Govindan and others All India Rent Control Journel 1983(1) 428 ARCT-45/2013 Page 6/17 a verdict of the Hon'ble High Court to contend that in the absence of pleadings word "bonafide need of petitioners" the petition was liable to be rejected under Order 7 Rule 11 of the CPC though it did not preclude the landlord from filing another petition with sufficient and proper pleadings;
S.K. Dey Vs. D.C. Gagerna (Delhi) 1984(2) All India Rent Control General page 593 to submit that the condition precedent to a petition under Section 14(1)(e) of the DRC Act 1958 as amended is that the person for whose occupation the landlord / owner requires the premises bonafide is a member of his family (i) is dependent on him and it is only when he satisfies both these postulates that he would be entitled to an order of eviction against the tenant and Prem Sheel Malhan Vs. R.P. Chawla (1974) Rajdhani Law Reporter 522 to reiterate that eviction could be sought by a owner under Section 14(1)(e) of the DRC Act only if the persons for whose occupation the tenanted premises were required were in any way dependent on the owner and evidence can be looked into the aspect only if it has been expressly alleged in the pleadings;
T.L. Muddukrishana Vs. Lalitha Ramchandra Rao AIR 1997 Supreme Court 772 to reiterate that where the cause of action which was required to be pleaded initially in the plaint was not pleaded, an application seeking amendment to bring on record such pleading can be rejected;
Union of India Vs. Sita Ram Jaiswal AIR 1977 Supreme Court 329 to contend that essential features constituting a cause of action had necessarily to be pleaded;
ARCT-45/2013 Page 7/17Shri H.D. Vashishta Vs. Glaxo Laboratories (K.Iyer J.)AIR 1997 Supreme Court 134 to reiterate that where specific averments constituting a cause of action were not pleaded, the petition was liable to be dismissed;
Rajendera Singh Yadav Vs. Chandra Sen and others AIR 1979 Supreme Court 882 to contend that what was not pleaded could not be subject matter of evidence;
State of Madhya Pradesh and Another Vs. Ram Ragubir Prasad Agarwal and others AIR 1979 Supreme Court 888 to contend that all words used by the legislature had essentially to be acted upon;
Reliance was also placed on behalf of the appellant on Vijaya Bank Vs. Shyamal Kumar Lodh (2010) 7 Supreme Court Cases 635 to contend that no words used by the legislature are to be redundant and repugnant, accept for compelling reasons;
Mohan Lal Vs. Tirath Ram Chopra & Anr. (Delhi) 1982(2) All India Rent Control Division 161 to reiterate that in the absence of a pleading that the premises were required bonafidely by the landlord / owner for himself or for any member of his family dependent upon him or for any person for whose benefit the premises were held, had essentially to be pleaded.
Reliance was also placed on behalf of the appellant on the following verdicts Narinder Mohan Sachdeva Vs. Usha International Limited 189 (2012) DLT 5 to contend that the appeal under Section 38(1) of the DRC Act in the instant case was maintainable where an order affecting the rights and liabilities of a ARCT-45/2013 Page 8/17 parties was made;
Shekh Mohd. Zakir Vs. Shahanaj Praveen CM(M) 779 (2010) decided on 13.07.2012 to contend that the appeal was maintainable;
Hira Devi and Ors vs. Balbir Singh and another 161(2009) DLT 121 to contend that there would be no jurisdictional error if the appeal was heard Shri B.S. Bawa Vs. Des Raj Khanna (1973) RLR 20 to contend that qua an order affecting the parties rights, an appeal under Section 38 of the DRC Act 1958 as amended is maintainable ;
The Central Bank of India Vs. Gokul Chand AIR (1967) Supreme Court 799 also to reiterate that under Section 38 of the Delhi Rent Control Act an appeal from any order which affects rights or liabilities of a party is maintainable;
Raj Kumar Kabir Vs. C.K. 677 (iv) AD Delhi 98 to submit that an order of a Rent Controller is appealable to a Tribunal and is not revisable by the High Court.
Reliance was also placed on behalf of the appellant on the following verdicts in support of the contentions of the appellant:
Sham Lal Vs. Jaswant Kaur 1980 Delhi 171 to contend that the strict provisions of the CPC are not applicable to the rent control proceedings but that when there are specific provisions in Rent Act they would have to be applied and when there are no specific provisions then provisions of CPC can be taken as guidelines.
The respondent to the appeal has submitted that she had submitted her bonafide need in detail in Annexure A to the petition ARCT-45/2013 Page 9/17 and more specifically in para 8 to 10 in Annexure-A that the respondent requires the demised premises for herself, her sons Pawandeep Singh and Amandeep Singh. The respondent claimed that the present appeal is not maintainable as no appeal can be preferred against dismissal of an application under Order VII Rule 11 CPC in an eviction petition under Section 14 (1) (e) read with Section 25-B of Delhi Rent Control Act, 1958 and the only remedy of the appellant was to prefer CM (Main) and it was submitted that no rights of the appellant had been effected by the impugned order dated 06.05.2013.
Reliance was placed on the behalf of the respondent on the following verdicts:
S.K. Aggarwal Vs. Abdul Aziz 81 (1999) Delhi Law Times 278 to contend that where an amendment sought had been dismissed in rent control proceedings, no appeal can be filed;
Smt. Bhagwati Devi Vs. Haji S.M. Sayeed 1979 (2) RCR 142 also in a case wherein amendment of pleadings was disallowed and it was held by the Hon'ble High Court of Delhi that no appeal lay against such order as it did not affect rights and liabilities;
Ram Panjwani Vs. Shanti Devi 1979 (2) RCR 529 to contend that proceedings in relation to Section 25B Delhi Rent Control Act, 1958 would be governed by Section 25-B (8) of Delhi Rent Control Act, 1958;
Smt. Ganga Bai Vs. Vijay Kumar AIR 1974 Supreme Court 1126 to contend that no appeal lies against mere finding;
Kanwal Narain Vs. L.F. Tellis 1984 Rajdhani Law Reporter 10 to contend that a party need not reproduce eviction ARCT-45/2013 Page 10/17 ground in Section 14 (1) in eviction petition and if omitted and tenant raises objections, then details may be given in replication and if parties knows the opponent's case, then Courts must ignore technical defects and go by the substance of the matter rather than by form and that as observed in para 16 of the said verdict by the time replication was filed the whole case under clause (e) had been known and later on fought on that footing;
Kedar Lal Vs. Hiralal AIR 1952 SC 47 to contend that Courts must be slow to throw out a claim on mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side however clumsily or inartisitically the plaint may be worded and in any event it is always open to a Court to give the plaintiff such general or other relief as it seems just as if it has been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs;
Guenender Nath Vs. Satish Chandra AIR 1953 SC 42 to contend that a plaintiff succeeded in the absence of a specific pleadings if it does not prejudice the other side;
Bhagwat Prasad Vs. Chandra Maul AIR 1966 SC 735 to contend that if a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence;
V.B. Raju Vs. R.L. Mahindroo 1982 Rajdhani Law Reporter 650 to contend that if the petition does not expressly plead ARCT-45/2013 Page 11/17 all the necessary ingredients of Section 14 (1) (e) the Controller is not bound to dismiss the petition under Order VII Rule 11 CPC and that this opinion in N.D. Khanna HI Corp. AIR 1981 D 305 was not a precedent as Controller has power to allow amendment of petition under Order V Rule 17 CPC;
Des Raj Vs. Joginder Singh 1984 RLR (Note) 33 to contend that even if a landlord did not expressly say that there was need of dining room, the Controller may consider it as a part of his need.
Another contention expressly raised on behalf of the respondent was that the word 'himself' in Section 14 (1) (e) of the Delhi Rent Control Act, 1958 included those family members who normally reside with the landlord and reliance in relation there was placed on the following verdicts:
Sham Lal & Ors. Vs. Om Prakash Gupta 1979 (2) RCR 305 to contend that in Section 14 (1) (e) the word 'himself' includes those family members who normally reside with the landlord and that the word 'dependent' includes the persons who are financially dependent upon the landlord as also who are dependent upon him for purpose of residence;
J.L. Mehta Vs. Smt. Hira Devi 1990 Delhi Law Times 484 to contend that the word 'himself' in Section 14 (1) (e) cannot be restricted to the landlord or the landlady alone as the case be as it would be making it completely unworkable if one was to restrict in grammatical sense and that it would have to be seen in each case whether the requirement of the landlord in asking for eviction by ARCT-45/2013 Page 12/17 claiming the requirements of some other person to live with him is justified by the circumstances as as to be covered by the requirement of the word 'himself' and if the restricted meaning of the word 'himself' was to be accepted it would lead to quite anomalous and undesirable results and when the ordinarily meaning and grammatical construction leads to a manifest contradiction or absurdity, hardship or injustice presumably not intended a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence;
Ram Gopal Vs. Smt. Washeshwar Nath 1979 DLT 215 to contend that though normally all the ingredients are required to be alleged and proved, but it does not mean that the letter of the law and not the spirit thereof must be complied with and that when the petitioner moved the petition under Section 14(1) (e) it was implied very much that he had no other reasonably suitable residential accommodation;
Ram Chameli Vs. Smt. Sujan Kaur & Anr. 81 (1999) DLT 549 to contend that even omission of the word 'bonafide' was not fatal for the petition to be rejected under Section 14 (1) (e) of the Act and that if one word of the English language has not been incorporated in the eviction petition, that would not be such an error which would be so fatal as to non-suit the landlady;
Man Mohan Mehra Vs. J.S. Butalia 1983 (2) RCR 456 to contend that in an application for eviction the ingredients of Section 14 (1) (e) of Act were not pleaded that an application and that the application should not be thrown out if cause of action is implied ARCT-45/2013 Page 13/17 or if its partly pleaded and amendment should be allowed liberally at any stage;
Parvesh Kanta Vs. Vijay Kumar & Anr 81 (1999) Delhi Law Times 374 to contend that mere non mentioning of the word 'non residential' cannot be a ground for non suiting a petitioner.
Reliance was also placed on behalf of the respondent on the on the following verdicts to contend that subsequent developments had essentially to be considered;
Gurcharan Singh Vs. R.N. Chaudhary 21 (1982) DLT 477 to contend that Court is entitled to consider subsequent developments relating to landlord's requirement and in such case amendment of petition was not necessary and the tenant should however have full notice and time and opportunity to rebut the same;
Jagdish Chander Gulati Vs. Kanta Devi 1996 (36) DRJ 654 to contend that the requirement of family members is never static and keeps on changing and the requirement pleaded in the original petition stood satisfied with the availability of another portion of the premises and subsequent requirement can be looked into;
Tara Chand Saini Vs. Sundar Singh 1993 (26) DRJ 452 also to contend that subsequent events and birth of child during pendency of petition can be considered.
On a consideration of the rival submissions made on behalf of either side and on perusal of the verdicts relied upon on behalf of either side as regards contention of the respondent that the appeal is not maintainable in terms of Section 38 of Delhi Rent Control Act, 1958, this ARCT is of the considered view that the aspect ARCT-45/2013 Page 14/17 that the disposal of the application under Order VII Rule 11 CPC certainly affects the rights of the parties whether of the appellant or the respondent thereto and thus in view of the verdicts of the Hon'ble High Court in S.K. Aggarwal Vs. Abdul Aziz 81 (1999) DLT 278; Smt. Bhagwati Vs. Hai S.M. Sayeed 1979 (2)RCR 142; Ram Panjwani Vs. Shanti Devi 1979 (2) RCR 529 and Smt. Ganga Bai Vs. Vijay Kumar AIR 1974 SC 1126, it is held that appeal is maintainable.
As regards the contention raised on behalf of the appellant however, that the petition was liable to rejected as the basic ingredients of Section 14 (1) (e) of Delhi Rent Control Act, 1958 had not been pleased in as much as the respondent had not pleaded that her sons were dependent upon her, the factum that the petitioner to the petition has herself pleaded that she needs the tenanted premises in question cannot be overlooked. The absence of word 'dependent' having been omitted by the petitioner to the eviction petition that the respondent herein per se at this stage does not suffice to make the petition not maintainable as the bonafide need of the respondent landlord as held by the Hon'ble High Court in;
(1) Kanwal Narain Vs. L.F. Tellis 1984 RLR 10 (2) V.B. Raju Vs. Joginder Singh 1982 RLR 650 (3) Des Raj Vs. Joginder Singh 1984 RLR (N) 33 (4) Sham Lal Vs. Om Prakash Gupta 1979 (2) RCR 305 (5) J.L. Mehta Vs. Smt. Hira Devi 1990 DLT (Vol.VI) 484 (6) Ram Gopal Vs. Washeshwar Nath 16 (1979) DLT 215 (7) Smt. Ram Chameli Vs. Smt. Sujan Kaur &Anr. 81 (1999) DLT ARCT-45/2013 Page 15/17 549 (8) Man Mohan Mehra Vs. J.S. Butalia 1983 (2) RCR 456 and (9) Parvesh Kanta Vs. Vijay Kumar 81 (1999) DLT 374 would include the bonafide need of the dependent of the landlord also, the contention of the appellant herein that the eviction petition was not maintainable cannot be accepted. This is so especially held by Hon'ble High Court in Kanwal Narain Vs. L.F. Tellis 1984 RLR 10 whether that a party need not reproduce eviction ground in Section 14 (1) in eviction petition and if omitted and tenant raises objections, then details may be given in replication and if parties know opponent's case, then Courts must ignore technical defects defects and go by substance of the matter rather than by form and that as observed in para 16 of the said verdict by the time replication was filed the whole case under clause (e) had been known and later on fought on that footing. Further more as rightly observed by the ld. Rent Controller vide the impugned order as laid down by the Hon'ble High Court of Delhi in case 1982 RLR 650 to the effect that Controller is not bound to dismiss the petition under Order VII Rule 11 CPC and that there is always power available to the Rent Controller to allow the amendments of the petition under Order VI Rule 17 CPC coupled with the observations of the ld. Rent Controller to the effect that he had been specifically averred in para 8, 9 and 10 in Annexure A in the eviction petition No. 29/11 that premises were required for the sons of the petitioner coupled with the submission in the petition itself that premises in question are required by the petitioner for her sons, the petition cannot be rejected under Order ARCT-45/2013 Page 16/17 VII Rule 11 CPC.
In view of the observations hereinabove, the appeal bearing ARCT No. 45/13 is hereby rejected and the records thereof be consigned to the Record Room and the records of the ld. Rent Controller be returned forthwith and the parties are directed to appear before the ld. Rent Controller on the 07.10.2013 at 02.00 p.m. Announced in the Open Court (Anu Malhotra) today this the 1st day of District & Sessions Judge October, 2013 West District, Delhi ARCT-45/2013 Page 17/17