Delhi District Court
Smt. Leelawati vs Sh.Shahjahan Ali on 14 February, 2011
1
IN THE COURT OF SH. LALIT KUMAR, CCJCUMARC, CENTRAL,
DELHI.
M51/2010
Smt. Leelawati
...... Petitioner/nonapplicant
Versus
1. Sh.Shahjahan Ali
2. Sh.Shenshaha Ali.
.......Respondents/applicants
O R D E R
14.02.2011
1. Vide this order, I shall dispose of the application filed by respondents/applicants under order 47 Rule 1 read with section 114 and Sec. 151 CPC as well as application filed under section 5 of Limitation Act read with section 151 CPC for condonation of delay in the filing review.
2. By the application under order 47 Rule 1 read with section 114 and Sec. 151 CPC, respondents/applicants have prayed for review and recalling of order dated 18.08.2010 passed by the Ld. Predecessor of M51/2010 1/12 2 this Court dismissing the application for leave to defend filed by respondents and passed an eviction order in favour of petitioner and against the respondents. By the application under section 5 of Limitation Act read with section 151 CPC, respondents/applicants prayed for condoning the delay in filing the aforesaid application.
3. Brief facts which are relevant for disposal of applications are that petitioner/nonapplicant has filed an eviction petition against the respondents on the grounds mentioned under section 14D of DRC Act. Respondents filed leave to defendant application. On hearing the arguments on the application, the Ld. Predecessor of this Court vide order dated 18.08.2010 has dismissed the leave to defend application and passed the eviction order in favour of petitioner and against the respondents in respect of tenanted premises. Since, it is alleged by the respondents that petitioner has obtained the eviction order without disclosing true facts and by suppressing the true facts that petitioner does not require the suit premises bonafidely, the present application has been filed.
4. The respondents have filed the application u/o.47 rule 1 read with sections 114 and 151 of CPC on the grounds that petitioner does not require the tenanted premises for bonafide requirement and it is apparent M51/2010 2/12 3 that during the pendency of the petition, the petitioner has given one room set on second floor of suit premises i.e. property no.45/4788, Raigerpura, Karol Bagh, New Delhi to one Sh.Gautam Khamrui and executed a rent agreement dated 14.07.2010 with effect from 10.07.2010 at a monthly rent of Rs.3,000/. It is further stated that even, after passing of order dated 18.08.2010, the petitioner has further given two rooms on the third floor of suit premises to Sh.Mithun Podan vide rent agreement dated 14.10.2010. Hence, it is submitted that petitioner has no bonafide requirement of any premises either for herself or for her alleged dependents otherwise she would not have inducted more tenants. It is further submitted that in case order dated 18.08.2010 is not reviewed, the respondents will suffer a great irreparable loss and injury which cannot be compensated in any terms.
5. The order was passed on 18.08.2010 and the present application was filed on 02.11.2010. Since, there is delay in filing the present application, the condonation of delay application has been filed stating that respondents have come into hands the copy of rent agreement dated 14.07.2010 on 29.10.2010 and further in last week of October, the respondents came to know that petitioner has given two room on the third floor of the property to Sh.Mithun Podan on 14.10.2010 and immediately, thereafter, they contacted their counsel to file the review application. M51/2010 3/12 4
6. Petitioner/nonapplicant filed separate replies to both the applications stating that it is a well settled law that tenant cannot directed the owner/landlord/landlady, how to live and where to live in his/her property. Hence, this principal is absolutely binding upon the respondent. It is denied that petitioner does not require the suit premises for bonafide requirement. It is also denied that during pendency of petition, petitioner has given one room set on second floor to one Sh.Gautam Khamrui and executed a Rent Agreement dated 14.07.2010 w.e.f. 10.07.2010. It is submitted that this fact was not entered or argued or stated by the respondent in their affidavit and not stated any where during the pendency of the petition. The alleged rent agreement dated 14.07.2010 is a false and fabricated document. It is also denied that after passing the said order dated 18.08.2010, the petitioner has further given two rooms on the third floor to Sh.Mithun Podan on 14.10.2010. It is submitted that petitioner is a 'Cancer' patient, so lots of money is required for her getting treatment, which is continuing one, so for her medical treatment, petitioner has to let out the upper portions of her property on rent to meet with her medical expenses. It is further submitted that it is a sweet will of the petitioner that where she wants to live in the entire property or where her sons and her other family members who are totally dependent upon her, wants to live, and in which portion they wanted to live in the entire property, the respondent cannot object to it or direct the petitioner how or where to live. M51/2010 4/12 5
7. I have heard arguments on the application and gone through the material available on record.
8. So far as application of respondents under section 5 of the Limitation Act read with section 151 CPC is concerned, I feel that there is sufficient reason to condone the delay. Hence, the application under section 5 of the Limitation Act read with section 151 CPC is allowed. The delay in filing the review application is condoned.
9. So far as application for review under order 47 rule 1 read with section 114 and Sec. 151 CPC is concerned, it is argued by the counsel for the petitioner that it is not maintainable in view of judgment of Hon'ble Delhi High Court in case bearing no.C.M. (M) no.405/2007 titled as Nand Kishore and Anr. Vs. Vijay Kumar Gupta decided on 16.02.2009.
On the other hand, counsel for respondent has argued that in view of provision of Section 25B (9) of DRC Act, this Court has very much power to review the order dtd.18.08.10 in accordance with provisions of order XLVII of the First Schedule to CPC. He also relied upon AIR 1980 Supreme Court 161; 30 (1986) Delhi Law Times 481; 1978 Rajdhani Law Reporter 592 and 22 (1982) Delhi Law Times 230.
It may be seen that case laws relied upon by counsel for M51/2010 5/12 6 petitioner is distinguishable from the facts and circumstances of the present case. Even the provisions of Section 25B(9) of DRC Act, makes it categorically clear that this Court has very much power to review under order 47 of CPC. Therefore, this contention has no merit that this Court has no power to review the order dated 18.08.2010 under order 47 of CPC.
10. Now question remains whether grounds mentioned by the respondent in the application are sufficient grounds to allow the review.
11. Counsel for respondent argued that petitioner does not require suit premises for bonafide requirement as during pendency of petition, she has let out one room set on the second floor of her property no.45/4788, Raigerpura, Karol Bagh, New Delhi to one Sh.Gautam Khamrui at a monthly rent of Rs.3,000/ and executed a rent agreement dated 14.07.2010 with effect from 10.07.2010. It is further argued that after passing the order dated 18.08.2010, petitioner has further given two rooms on third floor of suit property to Sh.Mithun Podan on 14.10.2010. Therefore, it is submitted that petitioner has no bonafide requirement of any premises either for herself or for alleged dependents. He argued that this fact was not in the knowledge of respondents during pendency of petition and they only came to know about same after disposal of petition. M51/2010 6/12 7 Counsel for respondents has relied upon the judgment of Hon'ble Supreme Court in case titled as Amarjit Singh versus Khatoon Quamarain bearing civil appeal no.3378 decided on 18.11.1986 cited as 31 (1987) Delhi Law Times 72.
12. On the other hand, counsel for petitioner has argued that petitioner requires the entire first floor for herself and her family members dependent upon her and she has not required one room in one floor and two rooms on the third floor separately. It is further argued that petitioner had already let out second and third floors of the property and requires first floor under present petition, which is more reasonable and suitable accommodation for her. It is further argued that petitioner does not want to separate her family members in one room on the second floor and two rooms on the third floor and her family members do not want to live with other tenants in other rooms on second floor as well as on third floor. He further argued that petitioner has spent lot of money for her 'cancer' treatment, which is even till today continuing one, for that purpose huge amount is required to meet with her medical expenses. Hence, she has to let out the upper portions of the property i.e. above the first floor, so that she can meet with her medical expenses from the rental income. He further argued that petitioner is aged about 68 years, so, she wants that her children should be nearer to her all the times, in view of her such M51/2010 7/12 8 ailment. Counsel for petitioner has relied upon judgments cited as 1978 (2) Rent Control Reporter 4 and 173 (2010) Delhi Law Times 518.
13. It may be seen that judgments i.e. 31 (1987) Delhi Law Times 72; 106(2003) DLT 496; 143(2007) DLT 1; 68(1997) DLT 300 and judgment of Hon'ble Supreme Court in case titled as Deena Nath vs Pooran Lal decided on 11.07.2001, relied upon by counsel for respondents pertains to the provisions under section 14(1) (e) of DRC Act, which is distinguishable from the facts and circumstances of the present case as Hon'ble Supreme Court in case titled as S.N. Kapoor v. Basanti Lal Khatri cited as AIR 2002 Supreme Court 171 has observed that: "In adjudging the claim under section 14D what is required to be substantiated is that the landlady is a widow and that she wants the premises for her own residence and that the claim by her is bona fide and not a feigned one. So far as a claim under section 14(1) (e) is concerned, the very requirement has to be shown not only to be bona fide but the move of the landlord/landlady to seek the eviction of the tenant must be genuine." Further in case titled as "S. Surjit Singh Kalra Vs UOI & Anr., 1991 (1) RCJ 357 (SC), where it has been held that the tenant cannot be allowed to take up defence available under section 14 (1) (e) as against an eviction petition under Section 14B, 14C or 14D. There cannot be any defence unconnected with or unrelated to the claim or right of the petitioner. The tenant cannot widen the scope of his defence by relying upon section 14(1) M51/2010 8/12 9
(e).
14. It may be seen that in the judgment cited as 1991 Supreme Court Cases 101, the Hon'ble Apex Court has observed that under section 14(D) of DRC Act, right of widow landlady to recover immediate possession premises can be availed of irrespective of whether the premises were let out before or after she became a widow and irrespective of whether the premises were let out for residential or nonresidential purposes, conferment of such special right on widow permissible under Article 15(3). However, the right can be availed of by her only once, she has to prove her bona fide need like other landlords and restriction under section 19 on reletting after recover of possession will also apply to her.
15. It may be seen that premises in question is of first floor which is required by the widow landlady in present case in hand and not the one room on the second floor and two rooms on the third floor. Even, if the other rooms of the suit premises are let out even at higher rates, the law does not prevent her to do so. Hence, it cannot be termed as petitioner has no bonafide requirement. It is held by the Hon'ble High Court in 1978(2) Rent Control Reporter 4 that landlord cannot ask to occupy more accommodation and he cannot let his premises at maximum rate and later does not except him to do charity to establish his bonafide. Since, petitioner being a lady of 68 years of age and suffering from Cancer, it M51/2010 9/12 10 cannot be said that she is not in bonafide need. It is the case of the petitioner that she required the premises for bonafide need as she wants the premises so that her children should be nearer of her all the time and it is not the case when premises in question has been vacated and again re letted by the petitioner.
16. It is a well settled preposition of law that it is for the landlord to say as how much premises is suitable to him and in what manner as it was held in case titled as M/s. John Impex (Pvt.) Ltd vs. Dr. Surinder Singh & Ors. Cited as 135(2006) DLT 265. Further In Sait nagjee Purushotham & Co. Ltd. Vs. Vimalabai Prabhulal & Ors,, VII (2005) SLT 559=(2005) 8 SCC 252; it was observed:
"It is always the prerogative of the landlord that if he requires the premises in question for his bonafide use for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilige of the landlord to choose the nature of the business and the place of business."
17. Besides that it is to be seen that in first instance, right to recover possession under section 14(D) can be availed of by the widow M51/2010 10/12 11 landlady only once and that is a sufficient guarantee against the abuse of the privilege granted by the Section. Secondly, she has to prove her bonafide need for the occupation of the premises in question for her own residence like any other landlord. Thirdly, the provisions of Section 19 of the Act come in play in her case also, when the order for possession on the ground of bonafide requirement for occupation as residence is made in her favour.
18. Relying upon the judgment of the Supreme Court in S.S. Kalra's case, it has been held in "Fibre Bond (Sales) Pvt. Ltd. Vs. Smt. Chand Rani, CR No.850 of 1992 decided on 8.2.1993 that the tendant cannot insist on a close scrutiny of the requirements of the landlady by applying the provisions of cl.(e) of section 14(1). 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 Controller that she needed the premises bonafide for her residence. In the case in hand, the respondents have failed to establish that mere giving on rent one room set on second floor of the suit property during the pendency of the suit and further giving two rooms on rent on third floor of suit premises to another tenant would entitled them for review of the order dated 18.08.2010 and moreover, how it could be construed that first floor of suit property is not required by the widow landlady/petitioner for her own residence which has already been M51/2010 11/12 12 discussed in the order dated 18.08.2010. Mere apprehension of the respondents that the premises would be letted out to some other tenant will not reduce the requirement of the premises of the petitioner for her own residence.
Therefore, considering the aforesaid whole facts discussed above, I am of the considered opinion that respondents have failed to raise and substantiate any triable issue which would assist them. Hence, there is no merit in the application and there is no ground to review the order dated 18.08.2010. The application is dismissed. File be consigned to record room.
Announced in open court LALIT KUMAR
th
on 14 February, 2011 CCJcumARC(Central)
THC: DELHI
M51/2010
12/12