Delhi District Court
Smt. Premwati vs Mohd. Tafejul on 12 February, 2013
IN THE COURT OF MS. SUGANDHA AGGARWAL, ADDL. RENT CONTROLLER : NORTHWEST : ROHINI : DELHI E.No. 14/2012 [U/s 14 D of DRC Act, 1958] Unique Case Identification No. 02404C0040342012 Smt. Premwati, Wife of Late Shri Balwant Singh, Resident of House No.1819, Azad Nagar, Bagh Kare Khan, Delhi ... Petitioner Versus Mohd. Tafejul, Son of Shri Deedar Ali, Resident of House No. D121, Yadav Nagar, Samay Pur, Delhi. ... Respondent Date of institution of petition : 10.2.2012 Date on which order was reserved : 21.1.2013 Date of order : 12.2.2013 ORDER
1. By this order, I shall dispose off the application seeking leave to defend filed by the respondent.
2. This is a petition filed by the petitioner seeking eviction under Section 14D read with Section 25B of Delhi Rent Control Act, 1958. As E.No.14/2012 Page No. 1 of 17 per the contentions of the petitioner, respondent was inducted as tenant in one room, kitchen and bathroom with open courtyard in property No. D 121, Yadav Nagar, Samey Pur, Delhi (hereinafter to be referred as "the suit premises") at a monthly rent of Rs.500/ excluding electricity and water charges. Petitioner has further contended that she is the owner of the suit premises which were constructed by the petitioner in the year 1974 and were let out to the respondent in 1989. Petitioner has contended that her family comprises of herself, two unmarried sons aged 29 and 26 years, four married daughters and one unmarried daughter. At present, petitioner is residing in property No. 1819, Azad Nagar, Kishan Ganj, Delhi with her family in three rooms situated on the first floor. It is further contended that one of the married daughter of the petitioner is residing in two rooms on the second floor of the same building. Petitioner has contended that she is 65 years old and suffering from various ailments such as arthritis and she has been advised not to climb stairs. It is further contended that the accommodation available with the petitioner is E.No.14/2012 Page No. 2 of 17 not sufficient considering the size of her family and further the suit premises being situated at the ground floor are more suitable to the petitioner considering her ailments, therefore, the suit premises are required by her bonafide for the purpose of residence of herself and her family members. Hence the present petition has been filed.
3. Application for leave to defend was filed by the respondent within the prescribed time period. In the application for leave to defend, respondent has contended that a vacant plot was let out to the respondent and the construction of one room, kitchen, toilet and bathroom was carried out by the respondent at his expenses. It is further contended by the respondent that the petitioner is not clear about the accommodation which was let out as in a civil suit filed by the respondent herein, the petitioner herein has filed her written statement stating that only one room at the rate of Rs.500/ per month has been let out. It is further contended that in the said civil suit, a local commissioner was appointed who had given his report that one room, kitchen, bathroom and toilet has been let E.No.14/2012 Page No. 3 of 17 out on rent which has been constructed by the respondent. Respondent has further contended that the need of the petitioner is not bonafide. Petitioner wants to evict the respondent and with this intention on 23.5.2011, the petitioner alongwith his family members had forcibly entered the suit premises and threatened the son and daughterinlaw of the respondent with dire consequences.
4. Respondent has contended that the property at Kishan Ganj is a large property and the other portion of the property is not let out and is in possession of petitioner only. Petitioner has sufficient accommodation available to her. It is further contended that all her sons are employed in Kishan Ganj which is near to the present residence of the petitioner and therefore, it is improbable that they would like to shift to the suit premises. Petitioner being an old lady and suffering from ailments cannot stay alone in the suit premises and therefore the need of the petitioner is not bonafide.
5. Reply was filed by the petitioner wherein she has refused all the E.No.14/2012 Page No. 4 of 17 averments raised by the respondent and reiterated the contents of petition.
6. I have heard the arguments on behalf of both the parties.
7. Ld. Counsel for petitioner has contended that relationship is admitted. It is contended that as per the law laid down by the Hon'ble Supreme Court in Rajeswari Vs. Bombay Tyre International Ltd 54 (1994) DLT 494, in a petition under Section 14D of Delhi Rent Control Act, the tenant has practically no defence whatsoever and all that is to be proved under that Section is that the landlady is a widow and the premises are required by her for own residence. The said judgment was reiterated by the Hon'ble High Court of Delhi in Savitri Verma Vs. Karol Bagh Banga Sangeet RLR 1999 218. Besides this counsel for petitioner has also referred to number of judgments wherein it has been stated that landlord is best judge of his needs and tenant cannot dictate terms. Counsel for petitioner has argued that the respondent cannot dictate to the petitioner as to how she has to reside and it is for the petitioner to decide the same.
8. Ld. Counsel for respondent has reiterated the contents of leave to E.No.14/2012 Page No. 5 of 17 defend in his written arguments. He has relied upon the judgment in the case of Santosh Devi Soni Vs. Chand Kiran JT 2000 (3) SC 397 wherein it was held that in case of additional accommodation, the leave to defend shall not be refused. It is argued that in the present case also, petitioner requires additional accommodation for the purpose of residence and therefore in view of the judgment of Hon'ble Supreme Court in Santosh Devi Soni's case (supra), leave to defend shall be granted.
9. I have considered the rival contentions of both parties and have carefully perused the record.
10. Counsel for respondent has challenged the petition on the following grounds :
1. The respondent has raised the construction of the suit premises and only a vacant plot was let out to the respondent by the petitioner.
2. The property in which the petitioner is residing at present is not occupied by tenants and the entire property is available with the petitioner.
3. The need of the petitioner is not bonafide.
E.No.14/2012 Page No. 6 of 17
11. All these grounds are dealt with separately as under: I THE RESPONDENT HAS RAISED THE CONSTRUCTION OF THE SUIT PREMISES AND ONLY A VACANT PLOT WAS LET OUT TO THE RESPONDENT BY THE PETITIONER.
12. The respondent has stated in his application that only the plot, on which the suit premises are situated, was let out by the petitioner and the entire suit premises were constructed by the respondent at his own expenses. The said fact has been completely refuted by the respondent. No documentary evidence or any other proof has been filed by the respondent in support of his contention. Further even if it is taken that construction was carried out by the respondent then also, respondent has not denied his relationship of landlady and tenant with the petitioner. Respondent has admitted that till date, petitioner is the landlady of the respondent and is also owner of the plot on which the suit premises are situated. Hence even if it is taken that the construction was carried out by the respondent, then in absence of any contract between the parties that respondent will have a perpetual lease rights over the suit premises, it will E.No.14/2012 Page No. 7 of 17 have no bearing on the relationship of parties as landlady and tenant. There is no issue raised by the respondent and the relationship of landlady and tenant and the fact that the petitioner is the owner of the suit premises is admitted by the respondent.
II THE PROPERTY IN WHICH THE PETITIONER IS RESIDING AT PRESENT, IS NOT OCCUPIED BY TENANTS AND THE ENTIRE PROPERTY IS AVAILABLE WITH THE PETITIONER.
13. The other contention of the respondent is that the premises in which the petitioner is residing at present is not occupied by tenants. It is argued that the entire premises are available to the petitioner. However, petitioner has refuted the said contention and has reasserted the extent of accommodation. The petitioner has averred that at present, she is residing in property No. 1819, Azad Nagar, Kishan Ganj, Delhi with her family in three rooms situated on the first floor. It is further contended that one of the married daughter of the petitioner is residing in two rooms on the second floor of the same building. The petitioner has also filed the site plan for the said property at Kishan Ganj, wherein the portion shown in E.No.14/2012 Page No. 8 of 17 yellow color is in possession of the petitioner and the rest of the portions shown in green color is occupied by different tenants.
14. It is settled law that mere assertions in the leave to defend application will not give any ground to the respondent to contest the petition. It was for the respondent to support his contention with some documents or atleast photographs. Further even for the sake of arguments, if it is taken that the entire property is available with the petitioner then also as per the petitioner owing to her old age and ailments, she wants to shift her residence at the ground floor and the suit premises are situated at the ground floor. In fact, respondent has also admitted that petitioner is not keeping well and is suffering from different ailments, as respondent has argued that due to ill health, respondent cannot shift alone to the suit premises. Hence the fact that the ground floor will be more suitable to petitioner duly stands established and no justified ground has been furnished by the respondent to seek leave to defend.
III NEED OF THE PETITIONER IS NOT BONAFIDE E.No.14/2012 Page No. 9 of 17
15. The respondent has raised certain issues stating that the need of the petitioner is not bonafide. Respondent has argued that petitioner is suffering from various ailments and she is an old aged lady. At present, she is residing with her sons and one unmarried daughter. It is further contended that all her sons are employed in Kishan Ganj itself and it will not be possible for them to shift to the suit premises alongwith the petitioner. He has further contended that the petitioner alone cannot shift to the suit premises and therefore the suit premises are not suitable to the petitioner.
16. It is settled law that tenant cannot dictate terms to the respondent.
In Sarla Ahuja Vs. United India Insurance Co. Ltd. AIR 1999 SC 100, it has been held as under : "...It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself..."
E.No.14/2012 Page No. 10 of 17
In Mahendra Trivedi Vs. Jai Prakash Verma, 157 (2009) DLT 690, it is held that: "Neither the Court nor tenant can dictate to landlord mode and manner in which he should live or to prescribe him residential standard on their own. Every member of family requies at least comfortable place to sleep"
Further in Sudesh Kumar Soni & Anr. Vs. Prabhas Khanna & Anr. 153 (2008) DLT 652, it has been held that: " If landlord wishes to live with comfort in a house of his own, law does not common or compel him to squeeze himself lightly into lesser premises protecting tenants occupancy.
Landlord is the best judge of his residential requirement."
17. Hence, in the present case, it is for the petitioner/landlady to see whether she can stay alone or not and whether it is convenient for her to shift to the suit premises or her sons are willing to shift with her or not. Further petitioner has also stated that one unmarried daughter is staying with her and she has stated that her family members will be shifting to the suit premises alongwith the petitioner. It is for the petitioner to see how she will reside in the suit premises and respondent being tenant cannot dictate the mode and standard of living. The petitioner has contended that the suit premises are more suitable to her being situated on the ground E.No.14/2012 Page No. 11 of 17 floor and therefore even this contention of the respondent does not raise any triable issue.
18. During arguments, counsel for respondent has referred to the judgment in the case of Santosh Devi Soni Vs. Chand Kiran JT 2000 (3) SC 397 wherein it was held that in case of additional accommodation, the leave to defend shall be granted. In the said case, the landlady was residing at the first floor and she was seeking additional accommodation. As per the facts of the said case, the said additional accommodation was also made available to landlady during pendency of the case. It is in those circumstances that the Hon'ble Supreme Court has held that leave to defend shall not be refused in case of additional accommodation. But present case cannot be called as merely a case of additional accommodation because petitioner has stated that the suit premises being situated at the ground floor are more suitable to her. Considering ill health of the petitioner, she cannot climb stairs and therefore she requires the suit premises. It is not that the petitioner is seeking additional E.No.14/2012 Page No. 12 of 17 accommodation for herself. Hence the judgment in Santosh Devi Soni's case (supra) is not applicable in the facts of the present case.
19. Further in similar facts in the case of J. Chaterjee Vs. Mohinder Kaur Uppal & Anr. (2000) 7 SCC 510, the Hon'ble Supreme Court has observed as under : "Respondent 1, the landlady, a widow filed an eviction application against the appellant tenant, under Section 14D r/w Section 25B of the Delhi Rent Control Act, 1958 granting to a widow the right to recover immediate possession of suit premises and providing a special summary procedure for disposal of the application. The landlady pleaded that she was 62 years of age, that she was suffering from arthritis and had other medical problems; that her 90 year old mother, also a victim of arthritis, lived with her; that they both needed the ground floor suit premises; that her 27 year old son, respondent 2, was to be married soon and would then occupy the first floor apartment, from which the two old ladies wishes to move to the ground floor tenanted flat; that the married daughters and sisters of respondent 1 stayed with her as houseguests from time to time. The tenant filed an application for grant of leave to defend the eviction application, inter alia contending that respondent 1 lived in Bombay; he also denied that she had arthritis. He also raised questions as to the landlady's locus standi to file the eviction petition.
The trial court, after considering the pleadings and documents adduced by the landlady, such as her ration card and hospital treatment record, found that she had proved her case. It also found that the appellant tenant had not made out a case which could nonsuit the landlady, and rejected the application for leave to defend. The appellant's E.No.14/2012 Page No. 13 of 17 revision petition was dismissed by the High Court which took note, inter alia, of a rent agreement adduced by the respondent, indicating that her flat in Bombay had been rented out to a third party."
In these circumstances, the Hon'ble Supreme Court held as under : "Eviction petition based on widow's right to recover immediate possession should not be frustrated by granting leave to defend, unless the tenant makes out a real and substantial case that the widow's plea of personal requirement is nothing but a pretence. The proceedings should not be dragged on unnecessarily. Whether leave to defend ought to be granted depends on the facts and circumstances of each case and no straitjacket formula can be laid down. On facts, High Court rightly upheld the order of Rent Controller rejecting appellant's application for leave to defend an eviction petition filed by respondent 1 widow landlady, suffering from arthritis and wishing to gain possession of ground floor tenanted premises. The special provisions under Section 14D r/w 25B of Delhi Rent Control Act for benefit of widow landlady ought not to be frustrated."
20. The aforesaid position of law has been reiterated by the Hon'ble Supreme Court in S.N. Kapoor (Dead) by LRs. Vs. Basant Lal Khatri & Ors. (2002) 1 SCC 329, wherein it was held that hypertechnical appreciation of material on record shall be avoided in case of eviction petition under Section 14D of Delhi Rent Control Act. It was further held as under : E.No.14/2012 Page No. 14 of 17 "Under Section 14D of Delhi Rent Control Act, widow must establish that she requires suit premises for her own residence and that her claim is bonafide, not a pretext designed to get rid of the tenant. However, her claim must be afforded a real, proper and effective consideration. It should not be rejected on the basis of a hypertechnical appreciation of the materials on record. Where appellant widow landlady wished to shift from one town because of strained relations with her daughterinlaw, to the suit premises in another town, High Court erred in rejecting her claim. Some discretion has to be allowed in favour of the landlord. Courts should not impose their own wisdom as to how landlord should arrange his affairs and ought not to be carried away by sympathy for the tenant."
21. Therefore, in the present case, neither the Court nor the respondent can dictate the petitioner as to how she can accommodate in the accommodation available with her. In view of the above judgments, the petitioner has to only prove that she is the landlady and the suit premises were let out by herself or by her husband and now the suit premises are required bonafide by her for her own residence. It is settled law that leave to defend can be granted only if, in the affidavit, such grounds are made out which will disentitle the landlord from seeking an eviction order. In Nem Chand Daga Vs. Inder Mohan Singh Rana 94 (2001) DLT 683, the Hon'ble High Court has held :
E.No.14/2012 Page No. 15 of 17
"...That before leave to defend is granted, the respondent must show that some triable issues which disentitled the applicant from getting the order of eviction against the respondent and at the same time entitled the respondent to leave to defend existed. The onus is prima facie on the respondent and if he fails, the eviction follows..."
22. In the present case, the relationship of landlady and tenant is admitted and it is also an admitted fact that petitioner is suffering from arthritis and is not keeping good health. Therefore, the fact that the suit premises are more suitable to the petitioner being situated at the ground floor is also duly established and hence there is no ground in the affidavit accompanying leave to defend application which if proved will disentitle the petitioner from seeking an eviction order. Hence, the present application of the respondent seeking leave to defend is dismissed.
23. On the other hand, the relationship of landlord and tenant has been duly established by the petitioner. As discussed above, bona fide need is also duly established by the averments made in the petition and the documents annexed therewith. Therefore, I am of the considered opinion that petitioner is entitled for an order of eviction under Section E.No.14/2012 Page No. 16 of 17 14D of Delhi Rent Control Act. Accordingly, the petition filed by the petitioner under Section 14D read with Section 25B of Delhi Rent Control Act is allowed. An order of eviction is hereby passed in favour of the petitioner and against the respondent in respect of the suit premises i.e. one room, kitchen and bathroom with open courtyard in property No. D 121, Yadav Nagar, Samey Pur, Delhi as shown in red colour in the site plan. File be consigned to Record Room after completion of necessary formalities.
(SUGANDHA AGGARWAL) Addl. Rent Controller (NW) Rohini, Delhi Announced in open Court on 12th day of February, 2013 E.No.14/2012 Page No. 17 of 17