Delhi District Court
Dr Mrs. Vimla vs Sh. Praveen Jain on 11 April, 2007
IN THE COURT OF SH. S.S. MALHOTRA : ADDL. RENT
CONTROLLER : KARKARDOOMA COURTS DELHI.
Suit No. E 653/06
In the matter of :-
Dr Mrs. Vimla
W/o Late Kaviraj Harnam Dass,
R/o A-9/45, Mall Road,
Delhi-110054.
....... Petitioner
Versus
1. Sh. Praveen Jain
S/o Late Sh. Subhash Chand Jain
2. Sh. Pradeep Jain
S/o Late Sh. Subhash Chand Jain
3. Smt. Sarla Devi
Widow of S/o Late Sh. Subhash Chand Jain
All resident of
H. No. IX/1918,
Gali No. 2, Kailash Nagar,
Delhi-110031
4. Ms. Anita Jain
W/o Sh. Arvind Jain,
D/o S/o Late Sh. Subhash Chand Jain
R/o C-6/190, Yamuna Vihar,
Delhi-110053.
5. Ms. Abha Jain
W/o Sh. Sanjeev Jain,
D/o Late Sh. Subhash Chand Jain,
R/o C-6/190, Yamuna Vihar,
Delhi-110 053.
....... Respondents
Date of Order : 11.4.07
1. By this order I shall dispose off the application of the respondent U/s 25-B of DRC Act seeking leave to defend against the eviction petition U/s 14-D of the DRC Act as filed by the petitioner.
2. Before disposing off the said application, brief facts as stated by the petitioner in her petition are that she is widow and owner/ landlady of property bearing No. IX/13 (old No. 1004/4) Main road, Kailash Nagar, Delhi-31 and the respondents are tenants under her with respect to second floor of the said property consisting of seven rooms plus balconies in front, middle and rear portions as shown red in the site plan annexure P-1. It is further submitted that a common toilet for the use of the occupants and the common passage/common areas in the use of occupants are shown in yellow colour in the site plan, annexure P1. It is further submitted that initially the property was let out to Sh. Subhash Chand Jain, father of the present respondents who expired on 1.3.92 and the same is in possession of his sons and his wife i.e. respondent no. 1 and 2 are his sons, respondent no. 3 his wife and respondent no. 4 and 5 are the daughters of Sh. Subhash Chand Jain. The rate of rent is stated to be Rs. 425/- pm, exclusive of electricity and water charges which is not being paid by the respondents. It is further submitted that premises were let out to Sh. Subhash Chand Jain more than 20 years ago.
It is further submitted that premises have been unatuhorisedly sub-let, assigned or parted with possession of by the respondent.
It is further submitted that petitioner is an old and widow lady of 79 years of age and her husband Kaviraj Harnam Dass expired on 19.8.71. It is further submitted that the suit premises was let out by her is now required by her for her own residence and therefore, she has filed the present petition. It is further submitted that petitioner has also filed a petition U/s 14(1)(e) of the DRC Act against the respondent which is still pending. It is further submitted that suit premises are the only premises that have been let out by the petitioner to various tenants and she has chosen the tenanted premises to be vacated by the respondents, therefore, it is prayed that an eviction order be passed in respect of the suit premises in favour of the petitioner and against the respondent.
3. Since this was a petition U/s 14-D r/w Section 25B of DRC Act, notice under Schedule III of DRC Act issued to the respondents. The respondents have filed application seeking leave to contest the eviction petition alongwith affidavit of Sh. Praveen Jain, respondent no. 1 and sh. Pradeep Jain, respondent no. 2 and it is submitted by Sh. Praveen Jain that he is one of the legal representative of Sh. Subhash Chand Jain and is competent to swear affidavit on behalf of himself and other respondents. It is further submitted that respondents have been served with the summons U/s 14-D r/w Section 25-B of the DRC Act and as such he has filed present application/affidavit in accordance with law within statutory period of 15 days. It is further submitted that the petitioner has not come to the court with clean hands and has suppressed the material fact with regard to purpose of letting out the demised premises which was originally let out to Sh. Subhash Chand Jain, predecessor in interest of the respondents and it is also submitted that the alternate accommodation is available to the petitioner. If the petitioner would have explained and narrated the real facts, she would not be entitled for any eviction order. It is further submitted that the premises in dispute is entire second floor which was let out to sh. Subhash Chand Jain in the year 1973 and since then the original tenant i.e. father of the respondents had been using the premises for commercial purposes till his death and thereafter the respondents have been using the same for commercial purpose till date. It is further submitted that after the premises in dispute was let out to Sh. Subhash Chand Jain, the petitioner even gave NOC dt. 17.11.75 to late Sh. Subhash Chand Jain for getting MCD license for running the trade of manufacturing readymade garments in the name of Alfa Garments on the second floor of the property in dispute and this fact has been suppressed by the petitioner. It is further submitted that Sh. Subhash Chand Jain had been using the said premises since then for manufacturing of the readymade garments i.e. for commercial purpose and he even applied for Municipal license for running and manufacturing the readymade garment business, which was granted vide registration form NO. 13598 vide letter No. 19958/77 dt. 20.5.77 and he also deposited necessary charges in that respect. He also got the registered certificate of Establishment of Delhi Shop and Establishment Department vide certificate issued by the Delhi Shops dt. 7.2.76. It is further submitted that the premises was never let out for residential purpose as there is no kitchen, WC and bathroom on the second floor of the suit premises and even otherwise the same cannot be used for residential purpose and it is reiterated that it was let out for commercial purpose and the predecessor in interest of the respondent had never resided in that premises with his family members and in fact the respondent's father Sh. Subhash chand Jain was having his ration card issued in his name and his bank account from the property No. IX/1918, Gali No. 2, Kailash Nagar, Delhi-110031 and he had been residing with his family at that address. Even respondent no. 4 and 5 had got married from that address and Sh. Subhash Chand Jain never resided in the suit premises and therefore purpose of letting can also be ascertained from this aspect also.
It is further submitted that petitioner has suppressed of factum of alternative accommodation with her which was available to the petitioner at the time of filing earlier petition and which is pending in the court bearing petition No. 107/05 and it is submitted that accommodation was available to the petitioner at the time of filing the earlier eviction petition i.e. entire ground floor and the first floor of property bearing No. IX/13 (new and 1004/4 (old) Main Road, Kailash Nagar, Delhi and the petitioner has not been using the ground floor and first floor of the above said premises which is available to the petitioner and the same is even more than sufficient accommodation available to the petitioner.
It is further submitted that after filing of the petition, the petitioner has also sold the front portion of the ground floor to different persons who were using the said portion for commercial purpose. The petitioner has let out the rear portion of the ground floor after filing of the petition and even otherwise the first floor accommodation which was vacant at the time of filing of the earlier petition has been converted into commercial by letting out the same for commercial purposes for runnig play boy school which is being run under the name and style of "Tender Hands School."
As far as alternate accommodation is concerned, it is submitted that the petitioner has concealed material facts that petitioner is having the residential accommodation available at first floor of property No. 1379, Chandni Chowk, Delhi where the petitioner is residing and is having entire first floor in her possession consisting of four bedrooms, one big drawing-dining, apart from the kitchen, WC, bath and the terrace of the first floor available to the petitioner in that property and this fact has not been stated by the petitioner.
It is further submitted that the suit premises has been assessed to house tax for commercial purposes and the petitioner is paying house tax for commercial purpose.
It is further submitted that the petitioner is 79 years old and it cannot be imagined that she would climb up stairs to reach the second floor i.e. the premises in dispute and in these circumstances it cannot be presumed that she would be requiring second floor of the premises in comparison to the ground floor premises and It is further submitted that it is beyond by any stretch of imagination that a person having an age of 80 years would climb the stairs and It is further submitted that there is no kitchen, WC and bathroom on the second floor of the suit premises. It is further submitted that the area where the suit premises is situated i.e. main road, Kailash Nagar is otherwise commercial in nature and the entire property in the area of main road is being used as commercial and It is further submitted that in these circumstances neither the petitioner nor any family member of the petitioner / daughters of the petitioner requires the tenanted premises for their bonafide needs and it is also submitted that none of the daughter of the petitioner is residing with the petitioner to the knowledge of the respondents and even otherwise the married daughters of the petitioner do not visit the petitioner and even otherwise she has sufficient alternative residential accommodation and therefore, leave to defend be given to the respondent so that he may be able to prove all the facts and he will demonstrate the that requirement of the petitioner is not bonafide and this would disentitle the petitioner from getting an order of eviction against the respondent.
Similar is the affidavit of Sh. Pradeep Jain in support of his application seeking leave to defend the present eviction petition.
4. The petitioner has filed reply to the leave to defend application and in reply it is submitted that the affidavit filed by the respondent does not disclose any fact which constitute any valid or legally tenable defence against the petitioner and therefore, application is liable to be rejected.
It is further submitted that the present petition has been filed by the petitioner U/s 14-D of DRC Act being a widow and she requires the suit property for her own residence and the fact stated by the respondent did not constitute any ground which if proved by them would disentitle the petitioner from getting an order of eviction against the respondent.
In reply to the affidavit she has denied that she has not come to the Court with clean hands or that she has suppressed any material facts with regard to the purpose of letting the premises or availability of alternative accommodation and it is submitted that all the necessary and relevant facts have been submitted in the petition. It is reiterated that premises was let out to Sh. Subhash Chand Jain but she denied that it was let out in 1973 for commercial purpose and it is submitted that it was letout only for residential purpose and it is also denied that Sh. Subhash Chand Jain was using the property for commercial purpose as alleged. It is also submitted that the respondents are guilty of non payment of rent and they have not paid even a single penny to the petitioner after the death of Sh. Subhash Chand Jain and they even have sublet the property by parting the possession in favour of the third party and so much so, the said third party is guilty of committing theft of electricity at the suit premises which resulted in raids by the vigilance department of the electricity department where after the property in question has been lying locked and unused for the last several years and therefore, the question of premises being used for commercial purpose under the said circumstances, does not arise. It is further submitted that the respondent has made an attempt to mislead the court by wrong mentioning the date of 'NOC' as 17.11.1975 and accordingly Sh. Praveen Jain is liable to be prosecuted for committing perjury for having false mentioning the date of NOC and it is stated that an attempt is being made to show that the certificate was issued by the petitioner simultaneously to the letting out the property to Sh. Subhash Chand Jain. However, the fact of obtaining the license by Sh. Subhash Chand Jain is not denied. It is further submitted that even the certificate was not obtained in the name for which 'NOC' was granted which clearly shows that the entire exercise of obtaining the license/registration was a sham and bogus action on the part of Sh. Subhash Chand Jain and in reality no commercial activity was carried on from the suit premises. It is further submitted that the respondents have clearly omitted the common latrine and bath available on the terarce floor of the property in question and it is also clear that any of the room out of seven rooms on the second floor is available for use as kitchen. It is also denied that nature of the premises is commercial and it s submitted that premises in question is residential and can be used for residential purpose only.
It is further submitted that ground floor portion has two shops in front and which are in possession of tenants and rear portion was let out to a person called Devan who has also sublet the same in favour of some third party. In Mezzanine floor portion the front rooms are used by the petitioner as her consulting room and as a pathology laboratory and the rear portion is in possession of one Ms. Vibhuti, who is occupying the same as a licensee under the petitioner and therefore, the only portion which is capable of being utilized properly by the petitioner for her house/residence is the second floor portion and all the allegations to the contrary in paragraph under reply are wrong and denied.
It is further denied that she has sold any portion of the suit property as alleged or that she has let out any portion on the ground floor after filing of the petition. Regarding running a play school, she has submitted that it has been set up by her daughter more than two year ago for underprivileged children just to help out the poor destitute children whose parents cannot afford to give education to their children on account of accute poverty and lack of opportunity and It is further submitted that said school was set up before filing of both the eviction petitions.
It is further submitted that there is no reasonably suitable residential accommodation available to the petitioner on the first floor of property No. 1379, Chandni Chowk as the entire first floor is used by the petitioner for medical clinic and only in exigencies the petitioner uses part of the clinic as residence from time to time because she has no other alternative accommodation except to use part of her clinic as her residence, particularly after having handed over the possession of the property at Mall Road, Delhi to her landlords on 31.12.05 in accordance with the order of Hon'ble High Court of Delhi. It is further submitted that otherwise the only residential portion available to the petitioner was portion at 45/9A, Mall Road which the petitioner has already vacated and handed over the possession thereof to the landlords as stated. The petitioner has also denied for want of knowledge that if Sh. Subhash Chand Jain was in occupation of any residential property in addition to the property in question. It is further submitted that even if he was in occupation of house No. IX/1918, Gali No. 2, Krishna Nagar, Delhi, the same does not mean that premises in question was not let out to him for residential purpose. It is further submitted that eversince the death of Sh. Subhash Chand Jain, the respondent has not paid a single penny by way of rent to the petitioner nor have paid any electricity charges to the concerned authority and in fact they as well as third party are guilty of committing theft of power and after being caught by the authorities they have disappeared from the scene and the premises in question is lying locked.
It is further submitted that the some portion of the property in question is being used for commercial purpose and therefore, house tax assessment has been made accordingly.
It is also denied that being she is of advanced age, she cannot reside on the second floor as alleged or that for getting the second floor evicted is only wishful thinking on the part of the petitioner as alleged. It is further submitted that the premises are in such shamble that petitioner has to made them suitable for her residential requirement.
It is denied that the respondents ever tendered any rent to the petitioner. It is further submitted that infact they have made attempts to mislead the Court by falsely stating that they have deposited the arrears of rent in the Civil Court. She has reiterated all the averments made in her para 18A and all the averments to the contrary made in paragraph (P) of the affidavit are wrong and denied and she has prayed that leave to defend of the respondent be dismissed and eviction order be passed in favour of the petitioner.
5. The respondents through Sh. Parveen Jain and Sh.
Pradeep Jain has filed counter rejoinder/affidavit to the affidavit filed by the petitioner of the affidavit filed by the respondents seeking leave to defend. In this affidavit, the respondent has denied that the petitioner has cleared all relevant facts and it is submitted that petitioner has suppressed even the purpose of letting for which the documentary evidence has been placed on record by the respondents. The petitioner has not denied the documents executed by her in favour of Late Sh. Subhash Chand Jain which shows that purpose of letting was commercial. It is also denied that letting of the premises in dispute was not made in 1973 for commercial purpose or that it was for a residential purpose or that Sh. Subhash Chand Jain was not using the premises in dispute for commercial purpose. It is also denied that respondent is guilty of subletting in favour of third party or theft of electricity which has resulted in raids by concerned authorities. It is also denied that demised premises is not being used for commercial purpose and as far as rent is concerned the respondents have been tendering rent to the petitioner personally as well as by Money Order but the petitioner has not been accepting the same and as such it was deposited in the court of Ld. Sr. Civil Judge, Delhi, on which notice was served upon the petitioner and the petitioner is well aware of this fact and even otherwise the ground of non payment of rent cannot be incorporated in this matter. It is further submitted that the entire premises in dispute is in occupation and use of the respondents where the respondents are carrying on commercial activities. It is not denied that the petitioner issued No Objection Certificate in favour of the deceased father of the deponent dt. 17.11.75. However it is denied that the premises was let out by the petitioner to Sh.Subhash Chand Jain for residential purpose alone. It is further submitted that Late Sh. Subhash Chand Jain changed the name of his firm from Alfa Garments to Mikashu Garments, but in any case it does not change the purpose of letting for which 'NOC' was issued and It is further submitted that documents are 30 years old which are issued by Government department in favour of the deceased Sh. Subhash Chand Jain.
It is further submitted that the petitioner after filing of the present petition has let out the entire first floor for commercial purpose for running a play boy school and the said school has been running for the last six months i.e. during the pendency of the present suit and It is further submitted that had the petitioner been requiring the accommodation bonafide she could not have let out the same. It is further submitted that petitioner has let out the front portion shops, which were available to the petitioner at the time of filing of the petition and the same have been let out for commercial purpose. He denied that play school has been set up by her daughter more than two years ago as alleged and it is submitted that petitioner has not earlier pleaded this fact in the petition or that in the affidavit with leave to defend application in the earlier petition filed by the petitioner against the respondent and it is now only after thought and has been stated only when the deponent made allegations. It is also deneid that there is no suitable residential accommodation available to the petitioner of property No. 1379, Chandni Chowk after the handing over the possession of property at Mall Road to her landlords. It is further submitted that the petitioner has not denied the allegation contains in para J of the affidavit of the deponent specifically with regard to extent of accommodation available with the petitioner at Chandni Chowk which is owned by the petitioner and it is reiterated that she has ample accommodation at Chandni Chowk to live and the petitioner cannot claim other property U/s 14-D of DRC Act. It is further submitted that she can claim only one accommodation i.e. property No. 1379, Chandni Chowk, Delhi as has been explained in the leave to defend application of the respondents. Similar is the affidavit of other respondent i.e. Sh. Pradeep Jain. All the other averments made by the petitioner in her reply/counter affidavit have been generally denied and those made in the application seeking leave to defend / affidavit have been reaffirmed and reiterated by the respondents.
6. I have heard the arguments and perused the record.
7. Section 14D of DRC Act provides as under
Right to recover immediate possession of premises to accrue to a widow. -
(1) Where the landlord is a widow and the premises let out by her, or by her husband, are required by her for her own residence, she may apply to the Controller for recovering the immediate possession of such premises.
(2) Where the landlord referred to in sub-section (1) has let out more than one premises, it shall be open to make an application under that sub-section in respect of any one of the premises chosen by her.
In view of Section 14 D read with section 25B of the DRC Act, the following ingredients are required to be determined:-
I. Whether or not the petitioner is landlady? II. Whether or not the petitioner landlady is a widow?
III. Whether or not the said premises have been let out by the petitioner landlady or her husband?
IV. Whether or not the said premises are required
by her bonafide for her own
residence?
8. In the present case the facts that the petitioner is a landlady, she is a widow and that the premises was let out by her are not disputed. The only ingredient which requires the consideration is whether the petitioner requires the premises for her own use as residence or not.
9. It is argued by Ld. counsel for the respondent that petitioner has filed separate petition U/s 14(1)(e) of the DRC Act and after filing of that petition, she has let out some portion on the first floor to run a play school for commercial purpose and if she would have required any premises for the purpose of residence she would not have let out any portion during the pendency of proceedings. He has also argued that the accommodation available with her at 1379, Chandni Chowk is sufficient which consist of four bedrooms, one big drawing-dining, apart from the kitchen, WC, bath and the terrace of the first floor available to the petitioner in that property and the present premises is not required by her for the purpose of residence and her intention is only malafide so that tenanted premises be got evicted in any case. He has further argued that all the daughters of the petitioner are married and they do not visit the petitioner nor there is any such requirement of residence/visit of her daughters and she is a lady of 80 years of age and the tenanted premises which she requires for her residence even does not consist of any kitchen, bathroom and latrine and therefore, this premises even cannot be required by her for the purpose of her residence and he has relied upon following judgments:-
a) Inderjeet Kaur vs. Nirpal Singh, (2001) 1 SC Cases 706
b) Liaq Ahmed and others vs. Habeeb-Ur-Rehman, AIR 2000 SC 2470
c) S. Surjit Singh Kalra vs. Unoin of India & anr., 43(1991) DLT 447
d) Saraswati Dalmia vs. Bennett Coleman & Co. Ltd., 46(1992) DLT 191 He has further argued that if a tenant is able to raise a triable issue, then it itself place a duty on Rent Controller to grant leave to defend to the tenant. In this regard he has also relied upon Charan Das Duggal VS. Brahamanand 1992, (1) RCJ 789 (SC), wherein, it was held that there appears to be a mistaken belief that unless the tenant at that stage makes out, such a strong case as would non suit the landlord, leave to defend cannot be granted. This approach is wholly improper. The correct approach is that when leave to defend is sought, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that should be sufficient to grant leave. In short, the test is a test of triable issue and not the final success in the action. Undoubtedly wholly frivolous defence may not entitle a person leave to defend. But, equally a triable issue raised enjoins a duty to grant leave.
10. Ld. counsel for the petitioner on the other hand has argued and relied upon following judgments :-
a) V. Rajaswari vs. Bombay Tyres Intl. Ltd., 1995 Supp(3) SC Cases 172
b) Surjit Singh Kalra vs. Union of India and Colonel Ashoka Puri, (1991) 2 SC cases 87
c) Nathi Devi vs. Radha Devi Gupta, (2005) 2 SC cases 271 Surjit Singh Kalra vs. Union of India and Colonel Ashoka Puri, (1991) 2 SC cases 87 was the first case which had made a quite distinction between the procedure of Section U/s 14(1)(e) of the DRC Act and 14B to 14D on other hand and it was, inter alia, held that tenant cannot claim right to contest an application for eviction on the grounds specified in Section 14(1)(e) against the classified landlords falling under Sections 14-B to 14-D. Acceptance of such claim would practically obliterate the purpose and object of classification of landlords under Sections 14-B to 14-D who are carved out from the general landlords for creating special classes of landlords with specified rights to recover immediate possession of the premises let out to them. It was further held in this matter that scope of defence of the tenant for obtaining leave to defend referred in Section 5 of 25-B is different while considering the provision of Section 14(1)(e) on one hand and while considering the provision of Section 14-B to 14-D on the other hand are different and it cannot be allowed to take up the defence U/s 14(1)(e) as against an application 14-B to 14-D. It was further held that court has to adopt a purposive approach to the interpretation of statutes. Section 14-B and other allied provisions ought to receive a purposeful construction and sub-section 5 of Section 25-B should be so construed as to implement the object and purpose of Section 14-B to 14-D and it is duty of the court to give effect to the intention of the legislature as expressed in Sections 14-B to 14-D. It was further held that though it is not permissible to read words in a statute which are not there, but "where the alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construction which deprives certain existing words of all meaning, it is permissible to supply the words". Having regard to the context in which a provision is enacted the court should construe it in a harmonious way to make it meaningful. An attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute.
In V. Rajaswari vs. Bombay Tyres Intl. Ltd., 1995 Supp(3) SC Cases 172, which was initially a petition U/s 14(1)(e) of the DRC Act and during the pendency of the petition, Section 14D of DRC Act was added in DRC Act and which emphasizing the need of widow lady, the petition U/s 14(1)(e) of the DRC Act was converted to Section 14D of DRC Act by the Hon'ble Supreme Court of India and it was held that "though the initial part of the arguments centered round on the bona fide need of the landlady but when we pointed out that on factual findings, it may not be possible for this court to interfere under Article 136, the arguments shifted to the ground resting on Section 14-D. Hence, the landlady prays that notwithstanding the petition has been filed under Section 14-D which is pending for adjudication before the Rent Controller, if on the fact the requirement of the section is satisfied, she would be entitled to eviction. The respondent argues; the prayer of the landlady is that once a factual finding has been rendered that there is no need for bona fide residence, that would operate against her. Even with regard to the claim under Section 14-D besides the landlady was demanding higher rent as is evident from her writing letters repeatedly for enhancement of rent. In any event, an application under Section 14-D is pending. That may be tried instead of this Court dealing with this aspect.
On a careful consideration of the above arguments, we are of the view that under Section 14-D, the tenant has practically no defence whatever. All that has to be proved under the said section which has been extracted above, are -
(i) that the landlady is a widow
(ii)the premises are required by her for her own residence.
In this case, both these requirements are satisfied. As regards the first, we do not want to state the obvious. Regarding the second, the fact that she is living with her daughter or any other person, is no ground to say that the premises in question is not required for her residence. If this be so, we are unable to see as to how her demand for increased rent would militate against her plea. Having regard to this established fact, we think that the trial of the application under Section 14-D before the Rent Controller, will only be redundant.
Therefore, we direct eviction of the respondent-tenant under Section 14-D. Now coming to the present case, it is admitted fact that the petitioner has filed two petitions i.e. one U/s 14(1)(e) of the DRC Act and another is the present petition i.e. U/s 14D of DRC Act. By way of judgment as referred here-in- above the court is of the opinion that parameters which are required to be proved by the petitioner in a petition U/s 14D of DRC Act are not as rigrous as they are in Section 14(1)(e) of DRC Act.
In Krishan Lal vs. Devki, 2000(85) DLT 326, it was held that nature of proof in proceedings under Section 14(1)(e) is quite different from the nature of proof under Section 14-D. It was further held that right accrued to a widow to recover immediate possesion of premises and even 'landlady' has not succeeded in her petition filed under Section 14(1)(e) of the Act but may succeeded before ARC in petition filed under Section 14-D. It was further held that for determining petition under Section 14-D, the earlier proceedings filed by the landlady under Section 14(1)(e) are relevant, but not conclusive. Obligation is cast upon the landlady to show that she requires of suit premises for her own residence.
Similarly, in Fibre Bond (Sales) Pvt. Ltd. vs. Chand Rani, 1993 AIR (Del) 201, 1993(50) DLT 68 it was held, nevertheless, I do not find any such facts being disclosed in the applications for leave to contest which, if established, would disentitle respondent no. 1 from getting eviction of the petitioner. In the first instance, as held by the Supreme Court in the case of S.S. Kalra (Supra) that cases under Section 14B, 14C and 14D are to be decided on their own parameters, and that the argument about a tenant's right to contest the application of even a classified landlord on the grounds specified in Section 14(1)(e) of the Act would be basically faulty. It was held in unqualified terms that :
"... if an application is filed under Section 14B, 14C or 14D, tenant's right to contest the application is narrowed down and is restricted to the parameters of the respective section. He cannot widen the scope of his defence by relying upon Section 14(1)(e)."
It was no doubt added that even then the landlord or the landlady will have particularly to satisfy the Rent Controller that there was bonafide need of the tenancy premises for his or her residence, but beyond that the tenant has no right to insist on all the ingredients of clause (e) of provisio to Section 14(1) of the Act being shown to exist, even in a petition under Sections 14B, 14C or 14D. That being so, the petitioner cannot insist on a close scrutiny of the requirement of respondent no. 1 by applying the provisions of clause (e) of proviso to Section 14(1) of the Act. All that he can seek is that the landlady should have shown by setting out such facts in the eviction petition as would satisfy the Rent Controller that she needed the premises bona fide for her residence.
Now coming to the facts of present case viz-a-viz Section 14D of DRC Act. The petitioner has only to prove that she requires his tenanted premises for her residence. The petitioner has stated in the petitioner that the accommodation which she was having no. 1379, Chandni Chowk was always there and the same is not sufficient for her residence as she has four daughters and one of them with her husband is residing with her and one is unmarried and is living permanently with her and other two daughters used to visit her and she also requiers the premises of Chandni Chowk for running her clinic and as such she requires the tenanted premises for her own residence. It is also matter of record that despite having this premises at Chandni Chowk, the petitioner had been contesting the petition where she was a tenant with respect to property at Mall Road and she contested that matter for about 40 years and therefore, the court is of the opinion that if the petitioner would be having sufficient accommodation for the purpose of residence, she would not have contested that petition for such a long period.
It is also matter of record that the petitioner had never asked for vacating this premises from the respondents during the period she was living in a rented property at 45/9A, Mall Road, Delhi. Why she would pay rent for the property at Mall Road and why she would contest the proceedings so rigorously for such a long period, definitely, suggests and gets an answer that the petitioner is requiring the premises and is bonafide in prosecuting the present petition. It is also matter of record that the petitioner is having four daughters and visits of daughters in our day to day society is not an abnormal phenomena. In this regard reference can be made to K.D.Nagrath, Vs. Mrs. Neena Sarna, 1999(2)RCR, 542, wherein, the landlord required one room for guests and relative. It was held that according to Indian way of life no evidence is required to prove this fact that friends and relatives do visits.
11. As far as the controversy with respect to the fact that the premises was let out for commercial purpose, the petitioner claims that premises was let out for residential purpose. No doubt, subsequently 'NOC' was issued by the petitioner to the respondent for running commercial activities which fact is not disputed. But the court is of the opinion that whether the premises was let out for residential purpose or whether the same was let out for commercial purpose is not the ingredient which is required to be proved by the petitioner i.e. classified landlady in a petition U/s 14D of DRC Act. Although, that may be a relevant fact in disposing off the petition U/s 14(1)(e) of the DRC Act. These two provisions are independent provisions as it has already been held in S.Surjit Singh Kalra Vs. Union of India, 1991(1) 357 that rights of the landlord under Section 14(1)(e) deals with the rights of the landlord as general, whereas Section 14D deals with the rights of classified landlord.
12. The contention of the respondent that before succeeding in petition U/s 14D, the petitioner has also to prove that her requirement is bonafide and he has relied upon Smt. Saraswati Dalmia v. M/s. Bennet Coleman and Co Ltd.,, 1992 (1) RCR 115, wherein, it was interalia held that the statue no doubt creates a special right in favour of widow landlady to ask for eviction of residential premises and the Controller has to decide it expeditiously but that does not preclude the tenant from disputing the bona fide of the landlady in asking eviction of the tenant. The landlady coming under this section has to establish her bona fide requirement for her residence like any other landlord.
In the present matter when the petitioner has been contesting the case with respect to property where she was a tenant, this itself shows that her requirement in getting the tenanted premises is bonafide as she had not filed any petition during the time she remained in possession of the premises as tenant at 45/9A, Mall Road and she filed petition U/s 14D only after her right as a tenant were finally decided. If she would have been in malafide of the petitioner, she would neither have been making the payment of rent for 40 years towards rent of property at 45/9A, Mall Road, Delhi nor she would have spent money on account of litigation for all the years.
The size of the family of the petitioner is not in dispute.
13. Now coming to the contention of Ld. counsel for the respondent that the petitioner has sufficient alternative reasonably suitable residential accommodation with her and even during the pendency of the proceedings U/s 14(1)(e) of the DRC Act, she had let out first floor portion of the said property to various tenants i.e. Ms. Vibhuti and to run a play school . Ld. counsel for the petitioner has replied to this arguments that under the provision of Section 14D, if the petitioner / landlady lets out more than one premises, then it shall be open to make an opportunity under that sub section for any one of the premises chosen by her. Further, he has argued that even if it is presumed that such accommodation has been let out by the petitioner, even yet the requirement of the petitioner has to be adjudged by herself. The second floor portion is consisting of 7 rooms whereas all the portion which is at ground floor is not sufficient for her for the purpose of residence for herself. He has also argued under the provision of Section 14-D IInd part, it is the choice of the petitioner which has to be given weightage and respondent is nobody to dictate the terms to the landlord as to in what manner he should live and where she should live. In this regard he has relied upon Devi Ram Vs. Ram Kapoor, 1999(1) RCR, 152, wherein, it was held that the landlord is entitled to assess the need and requirement for himself and his other family members. Neither the court nor the tenant can dictate to him the mode and manner in which he should live or to prescribe for him a residential standard of their own.
14. Ld. counsel for the respondent has further argued that the petitioner is a lady of 80 years of age and as to why she requires premises at second floor is also beyond the understanding. Ld. counsel for the petitioner has replied that the petitioner is at liberty to chose one accommodation and just by chosing second floor of the portion it cannot be said that she has come within the category of malafide requirement. It is her premises which was let out to the father of the respondents and after the death of the original tenant, the respondents have succeeded tenancy and now the same is required by the petitioner for the purpose of residence by the petitioner. The Court has to see whether the petitioner requires the accommodation bonafide for the purpose of her residence as explained in the petition or whether the respondent has been able to prove that there are sufficient facts which if allowed to be proved by the respondent after granting her leave to defend, would disentitle the petitioner from seeking an order of eviction in the present matter. The only fact U/s 14D of DRC Act that petitioner requires the tenanted premises for her own residence in comparison to the petition U/s 14(1)(e) of the DRC Act where the petitioner has also to prove other facts i.e. the premises was let out for residential purpose or that the same is required for the purpose of residence of herself and her family members and she has no other alternative reasonably suitable residential accommodation. Ld. counsel for the petitioner has further argued that provision of U/s 14(1)(e) of the DRC Act cannot be read while disposing off the petition U/s 14D of DRC Act as it has been held in S.Surjit Singh Kalra Vs. Union of India, 1991(1) 357 (Supra). The court is of the opinion that contention of Ld. counsel for the petitioner is well found as it has been held in various judgments that the requirement of the petitioner U/s 14D i.e. of classified landlord has to be seen within the ambit of Section 14D and it cannot be mix with the provision of Section U/s 14(1)(e) of the DRC Act where the requirement have to be proved by the landlord/owner in general.
15. Keeping in view all the facts and circumstances, the court is of the opinion that the petitioner has been able to prove that the suit property is bonafide required by her for her own residence. Even if, all the contentions raised by the respondents, in his affidavit are to be believed, the same does not disclose any such facts which if proved would dis- entitle the petitioner in obtaining an order for eviction. Ergo, the application/affidavits filed by the respondents seeking leave to defend, are dismissed. Consequently, eviction order is hereby passed in favour of the petitioner and against respondents in respect of the second floor of suit premises bearing No. IX/13 (old No. 1004/4) Main road, Kailash Nagar, Delhi-31, consisting of seven rooms plus balconies in front, middle and rear portions as shown red and a common toilet for the use of the occupants and the common passage/common areas in the use of occupants as shown in yellow colour in the site plan, which is now Ex. C-1. However, the petitioner shall not be entitled to obtain the possession of the same before expiry of a period of two months. No order as to cost. File be consigned to Record Room.
(S.S.MALHOTRA) ADDL. RENT CONTROLLER ANNOUNCED IN OPEN COURT KKD COURTS, DELHI.
ON 11.4.07