Delhi High Court
Sarita Sharma & Ors vs Sunder Devi on 6 March, 2012
Author: Indermeet Kaur
Bench: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 06.03.2012
+ Rev. Pet. 129/2012 and CM Nos. 4172-4175/2012 in RC.REV.
69/2012
SARITA SHARMA & ORS ..... Petitioners
Through Mr. Varun Goswami, Mr. Vijay
Kumar and Mr. Rajesh Singh,
Adv.
versus
SUNDER DEVI ..... Respondent
Through None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1. This is a review petition. This petition seeks a review of the order dated 14.02.2002 wherein counsel for the petitioner Mr. Vijay Kumar had sought permission of this court to withdraw this petition; permission having been granted petition had been dismissed as withdrawn. The petitioner was aggrieved by this order; he had filed an SLP before the Apex Court; the Apex Court on 02.03.2012 had granted permission to the petitioner to move an appropriate application seeking review of this order before this court; petitioner is accordingly before this court today. R.C.Rev.69/2012 Page 1 of 7
2. Contention of the learned counsel for the petitioner is that although admittedly Mr. Vijay Kumar was the advocate of the petitioner but he had made a wrong statement on the date when the impugned order was passed i.e. 14.02.2012. Relevant would it be to state that it is not the contention of the petitioner (now represented through a new counsel) that Mr. Vijay Kumar was not authorized to appear on behalf of the petitioner or Mr. Vijay Kumar had made a statement which was not as per the instructions of the petitioner; contention is that the earlier advocate, Vijay Kumar was under the impression that since the ground urged by him before this court was a ground which did not find mention in his application for leave to defend, it would be more appropriate for him to withdraw this petition and to agitate the impugned order by way of a writ petition. This is borne out from the submission made by Mr. Vijay Kumar who had been also requested to appear in court today. Petitioner is also present in person. In fact it is not the case of any person before this court (i.e. the petitioner, his counsel, Mr. Vijay Kumar or the new counsel, Mr. Varun Goswami) that Mr. Vijay Kumar, Advocate did not have the requisite power of attorney or the authority to make a statement on behalf of the petitioner. This petition accordingly R.C.Rev.69/2012 Page 2 of 7 deserves to be dismissed on this ground alone.
3. Be that as it may, the merits of the controversy raised by the petitioner have also been considered. His contention is that his application seeking leave to defend could not have been dismissed as triable issues had been raised by him; attention has been drawn to the averments made in the application seeking leave to defend wherein it has been brought to the notice of the court that the landlord was also the holder of another property i.e. property bearing No. 7753, Nawab Road, Sadar Bazar, Delhi measuring 7.5' x 20'; there was yet another property which was available with the landlord which is property bearing No. E- 16/243, Tank Road, Bapa Nagar, Karol Bagh, New Delhi measuring 15' x 20'; these alternate accommodations have not been considered by the ARC. In this background, eviction petition having been decreed suffers from an infirmity
4. Record shows that the present eviction petition has been filed by the landlady under Section 14-D of the DRCA; contention is that one room/shop on the ground floor of property bearing No. H-16/47, Gali No.4, Tank Road, Bapa Nagar, Karol Bagh, New Delhi had been let out by the husband of the petitioner to the husband of the respondent No. 1. R.C.Rev.69/2012 Page 3 of 7 The petitioner is the owner of this property by virtue of registered documents i.e. general power of attorney, agreement, affidavit and Will dated 18.01.1985; house tax has also been paid by the petitioner. No dispute has in fact been raised by the counsel for the tenant on the ownership/qua the status of the petitioner as landlord. His only grievance is that the alternate accommodations which were available with the landlord (as noted above) have not been considered by the Trial Court. The corresponding para of the reply seeking leave to defend have been perused.
5. The tenant has categorically stated that property bearing No. 7753, Nawab Road, Sadar Bazar, Delhi which was an ancestral property of her deceased husband measuring about 50 sq. yards has been distributed floorwise among the share holders and share of the husband of the petitioner was one room measuring 7.5' x 20' which was earlier under the tenancy of Harnath Singh and which is now in occupation of her elder son namely Deshraj, his wife and two children after this room was vacated on 13.11.2002. Qua the other property i.e. property bearing No. E-16/243, Tank Road, Bapa Nagar, Karol Bagh, New Delhi, it has been stated that one portion of this property measuring about 33 sq. R.C.Rev.69/2012 Page 4 of 7 yards had been purchased by the petitioner on 26.11.1999 in her name and re-built in the year 2000 and let out to the tenants; first floor is being occupied by her younger son Charan Singh for a commercial purpose which comprises of one room and one kitchen; it was a hall which was divided into two portions; first portion is being used as a bed room and the other portion is being used as a kitchen-cum-bathroom. The petitioner continues to reside on the second floor of the said premises; the ground floor, second floor and third floor are in occupation of other tenants. Petitioner is stated to be an aged widow lady suffering from knee-pains as also diabetic and finds it difficult to climb to the 2 nd floor of the suit property where her room is located. Present shop would be used for a residential purpose which is on the ground floor; it is also located in the residential area. It was in this background that the bona fide need of the landlord was found to be established and eviction petition had been decreed in favour of the landlady.
6. This petition is a petition under Section 14 (D) of the Delhi Rent Control Act (DRCA). The essential ingredients require to be established by the petitioner are that (i) the landlady is a widow; (ii) the premises have been let out either by herself or by her husband. (iii)the premises R.C.Rev.69/2012 Page 5 of 7 are required by her for her residence. There is no dispute to the first two ingredients; as noted above, arguments have been addressed only on the third ingredient which also stands satisfied. It would be relevant to note that the provision under Section 14 D of the DRCA does not contain the word 'bona fide'; it must be presumed that the averments made by the landlady are averments which are bona fide; she has been able to establish that the accommodation which is available with her on the second floor is not suitable for her need.
7. The Supreme Court in V.Rajaswari Vs. Bombay Tyres International Ltd. reported in (1995) Supp (3) SCC 172 had noted that an averment the fact that the landlady/widow is living with her daughter or any other person is no ground to say that the premises in question are not required for her residence. The Apex Court in order to make this provision more reasonable had read into it that the need to substantiate the request of the widow to recover possession of the premises for her own residence should be bonafide; the word 'bonafide' being missing from the provisions of Section 14-D, her need and request for the premises even in the absence of a specific stipulation to that effect should be read as a bonafide need.
R.C.Rev.69/2012 Page 6 of 7
8. Thus even on merits, no case is made out to interfere with the reasoned order passed by the Trial Court.
9. Petition is without any merit; dismissed.
INDERMEET KAUR, J MARCH 06, 2012 rb R.C.Rev.69/2012 Page 7 of 7