Delhi District Court
Sh. Ravinder Singh vs Sh. Naresh Kumar on 4 April, 2019
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IN THE COURT OF MR. SHIRISH AGGARWAL, ARC-1, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
Eviction Petition No. E-893/14 (New No.78568/16)
Unique Case ID/CNR No.DLCT03-001122-2014
1. Sh. Ravinder Singh
2. Sh. Navinder Singh
Both sons of Late Sh. Sri Ram
Both residents of 11208, Gali Kaptain Wali
Goshala Marg, Doriwalan
Kishan Ganj, Delhi-110006 ...Petitioners
Versus
1. Sh. Naresh Kumar
S/o Late Sh. Ramesh Chand
2. Ms. Savita
D/o Late Sh. Ramesh Chand
3. Smt. Ram Murti
Wd/o Late Sh. Ramesh Chand
All resident of H. No. 11203, F.F., Mandir Road
Gaushala Marg, Kishan Ganj
Near Arya Samaj Mandir
Delhi.
4. Sh. Davender Singh
S/o Sh. Sri Ram
R/o 367, 4/2, Karawal Nagar Vistar
Sadat Pur, Musalmanan, P.O. Dayalpur
North East, Delhi-110094 ...Respondents
Eviction petition No.893/14 (New No. 78568/16) Page 1 of 16
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Date of Institution of Petition : 01.04.2014
Date on which order was reserved : 03.04.2019
Date of decision : 04.04.2019
Decision : Application seeking leave to defend
filed on behalf of the respondents
No. 1 to 3 is allowed.
ORDER
1. This is a petition for eviction of tenant under Section 14 (1) (e) r/w Section 25-B of the Delhi Rent Control Act, 1958. This order shall dispose off the application seeking leave to defend filed by respondents no. 1 to 3.
2. The petitioners claimed to be the owners and landlords of property no. 11203, First Floor, Mandir Road, Gaushala Marg, Kishan Ganj, Near Arya Samaj Mandir, Delhi-110006 as shown in red colour in the site plan filed alongwith the eviction petition (hereinafter referred to as the 'tenanted premises'). It is pleaded that the respondents no. 1 to 3 are occupying this property as tenants and the monthly rate of rent is Rs.7.31/- excluding all other charges.
3. It is stated that the petitioners and their family are residing on the ground floor of the tenanted premises. It is averred that the family of petitioner no. 1 consists of his wife, two daughters and one son. It is pleaded that one of Eviction petition No.893/14 (New No. 78568/16) Page 2 of 16 3 the daughters of petitioner no.1 is married and has one son. It is stated that the son is also married and has one daughter.
4. It is averred that the family of petitioner no. 2 comprises of his wife and three daughters who are pursuing their studies.
5. It is stated that the ground floor property in which the petitioners are residing with their family consists of four rooms, four kitchen and WC. It is pleaded that the portion in possession of the petitioner no. 1 is shown in green color and the portion in possession of petitioner no. 2 is shown in blue color, in the site plan filed with the eviction petition.
6. It is stated that the petitioner no. 1 requires three rooms i.e. one bedroom for himself and his wife, one room for his daughter and one room for his married son and his wife, besides a drawing room for guests who are visiting them.
7. It is pleaded that the petitioner no. 2 requires one room for himself and his wife and two rooms for his daughters who are college going and are studying. It is stated that as such, petitioners require atleast 7 rooms in total, but are presently having only 4 rooms. It is averred that the first floor of the Eviction petition No.893/14 (New No. 78568/16) Page 3 of 16 4 property has two rooms which are with tenants. It is stated that both these rooms are bonafide required by the petitioners for residence. It is averred that a separate petition for eviction of tenant from the other room on the first floor has also been filed and is pending before another Court.
8. It is stated that the respondent no. 4 who is brother of the petitioners and co-owner of the property, is residing separately at the address mentioned in the title of the petition, due to paucity of accommodation.
9. It is averred that the petitioners do not have any other accommodation available, except the tenanted premises for their requirement. Petitioners have prayed that eviction order may be passed in respect of the tenanted premises in terms of section 14 (1) (e) of the Delhi Rent Control Act.
10. Notice of the petition was served upon the respondents. The respondents no. 1 to 3 filed an application seeking leave to defend. The respondents denied that the petitioners are owners of the tenanted premises. It is stated that the respondents no. 1 to 3 are owners of this property, by way of adverse possession. The relationship of landlord and tenant between the petitioners and the respondents has also been denied by the respondents. Eviction petition No.893/14 (New No. 78568/16) Page 4 of 16 5
11. It is further stated in the application that the petitioners have concealed alternative properties available with them for residence i.e. six quarters bearing no. 11200, 11201, 11202, 11203, 11208 and 11209, situated in Baghraoji Chowki, Gali Kaptanwali, Gaushala Marg, Kishan Ganj, Delhi-110006.
12. it is averred that the petitioners have total 8 rooms, 2 toilets and 2 kitchens and covered tin shed available with them on the ground floor which comprises of six quarters bearing no. 11200, 11201, 11202, 11203, 11208 and 11209, situated in Baghraoji Chowki, Gali Kaptanwali, Gaushala Marg, Kishan Ganj, Delhi-110006, measuring about 180 sq. yards. It is stated that these are more than sufficient for the residence of the petitioners and their family members.
13. It is stated that the petitioners have not filed correct site plan and have not shown the number of rooms, toilets and two rooms available with them, in order to mislead the Court. It is averred that the respondents have filed the correct site plan which shows the availability of eight rooms, two toilets, two kitchens and covered tin shed available with the petitioners on the ground floor.
Eviction petition No.893/14 (New No. 78568/16) Page 5 of 16 6
14. The respondents no. 1 to 3 have pleaded that the alleged bonafide need of the petitioners is fake and malafide and have prayed that leave to defend the petition may be granted to the respondents as the application/affidavit of the respondents/tenants discloses such facts as would disentitle the petitioners from obtaining an order for the recovery of possession of the premises under section 14 (1) (e) of Delhi Rent Control Act.
15. The petitioners filed reply to the application seeking leave to defend. The petitioners reiterated and reaffirmed the contents of their eviction petition. With respect to six quarters bearing no. 11200, 11201, 11202, 11203, 11208 and 11209, situated in Baghraoji Chowki, Gali Kaptanwali, Gaushala Marg, Kishan Ganj, Delhi-110006, it is stated that the petitioners do not have any such property available with them. It is denied that the petitioners have eight rooms, two toilets, two kitchens and covered tin shed available with them on the ground floor of property bearing no. 11200, 11201, 11202, 11203, 11208 and 11209, situated in Baghraoji Chowki, Gali Kaptanwali, Gaushala Marg, Kishan Ganj, Delhi-110006.
16. The respondents no. 1 to 3 filed rejoinder to the reply of the petitioners and denied the averments made in the reply of the petitioners and Eviction petition No.893/14 (New No. 78568/16) Page 6 of 16 7 simultaneously reiterated and reaffirmed the contents of the application.
17. I have heard arguments and carefully gone through the record. The allegation that the petitioners are not owners of the tenanted premises, that respondents no. 1 to 3 are owners and that there is no relationship of landlord and tenant between the petitioners and the respondents was withdrawn by the respondents no. 1 to 3 on 03.04.2019 before the Court. The said respondents admitted the relationship of landlord and tenant between the petitioners and respondents.
18. The respondents no. 1 to 3 have alleged that the petitioners have concealed that they have available eight rooms, two toilets, two kitchens and covered tin shed in six quarters bearing no. 11200, 11201, 11202, 11203, 11208 and 11209 on the ground floor of property situated in Baghraoji Chowki, Gali Kaptanwali, Gaushala Marg, Kishan Ganj, Delhi-110006. In support of this contention, the respondents have filed a site plan. In the site plan of the respondents, the same property shown in the site plan of the petitioners on the ground floor, is shown to have more rooms then shown by the petitioners. In this context, all that the petitioners have stated in the reply is that no such property is available with the petitioners and what is available, Eviction petition No.893/14 (New No. 78568/16) Page 7 of 16 8 has been clearly depicted in the petition. However, in the course of arguments, Ld. Counsel for the petitioners orally submitted that the rooms shown in the site plan filed by the respondents are so small that they are not habitable.
19. The Court is of the opinion that in view of the allegations made by the respondents, which is supported by a site plan, it was incumbent upon the petitioners to have stated in their reply whether the site plan filed by the respondents is correct or not. There is no mention in the reply about the site plan of the respondents. There is only a bald ipse dixit self-serving statement that the petitioners do not have the properties as alleged by the respondents. This contention of the petitioners is contrary to their admissions made in the eviction petition and accompanying documents including the relinquishment deed and the site plan. From the site plan and the relinquishment deeds filed by the petitioners, it is evident that the petitioners indeed own six quarters bearing no. 11200, 11201, 11202, 11203, 11208 and 11209, situated in Baghraoji Chowki, Gali Kaptanwali, Gaushala Marg, Kishan Ganj, Delhi-110006. All that needs to be ascertained is whether these six quarters include the number of rooms as shown in the site plan of the petitioners or the number of rooms as shown in the site plan of the respondents. It has not been Eviction petition No.893/14 (New No. 78568/16) Page 8 of 16 9 clarified in the reply that even though the petitioners own these six quarters, these quarters do not comprise of as many rooms as has been alleged by the respondents.
20. The petitioners could have filed photographs and/or video of the ground floor property for establishing the number of rooms that it has. This was not done. In the case of Om Perkash Vs. Naraini Devi, 1995 RLR 41, the following was held:-
"It was held that the tenant had categorically denied the existence of any tenant by the name of Babulal. Landlady could have shown the denial to be false by producing the copy of the counterfoils of the Rent Receipts issued to him and also giving copy of his ration card. By not doing so a triable issue had been raised."
21. Whether the rooms shown in the site plan of the respondents are so small that they are not habitable is a matter of trial on which evidence ought to be led. Also, whether the ground floor has as many rooms as alleged by the respondents can be determined only after an opportunity is granted to the respondents for leading evidence. At this stage, when the application for leave to defend is to be decided, the Court is not required to check proof of the defence raised by the tenant. In this context the decision of the Hon'ble Eviction petition No.893/14 (New No. 78568/16) Page 9 of 16 10 Supreme Court passed in the case of Precision Steel & Engineering Vs. Prem Deva Niranjan Deva Tayal 1982 AIR 1518, is relevant, the following was held in this case:-
"The language of sub-section 5 of Section 25-B casts a statutory duty on the Controller to give to the tenant leave to contest the application, the only pre-condition for exercise of jurisdiction being that the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for recovery of possession of the premises on the ground mentioned in section 14(1)(e). Upon a true construction of proviso (e) to section 14(1) it would unmistakably appear that the burden is on the landlord to satisfy the Controller that the premises of which possession is sought is: (i) let for residential purposes : and (ii) possession of the premises is required bonafide by the landlord for occupation as residence for himself or for any member of his family etc. and (iii) that the landlord or the person for whose benefit possession is sought has no other reasonably suitable residential accommodation. This burden, landlord is required to discharge before the Controller gets jurisdiction to make an order for eviction. This necessarily transpires from the language of Section 14(1) which precludes the Controller from making any order or decree for recovery of possession unless the landlord proves to his satisfaction the condition in the enabling provision enacted as proviso under which possession is sought. Initial burden is thus on the landlord.
...On perusing the affidavit filed by the tenant and the reply if any filed by landlord the Controller has to pose to himself the only question: Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the Eviction petition No.893/14 (New No. 78568/16) Page 10 of 16 11 ground specified in Clause (e) of the proviso to section 14(1). The Controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against other set of affidavits. That is not the jurisdiction conferred on the Controller by sub-sec. 5 because the Controller while examining the question whether there is a proper case for granting leave to contest the application has to confine himself to the affidavit filed by the tenant disclosing such facts as would prima facie and not on contest disentitle the landlord from obtaining an order for recovery of possession. At the stage when affidavit is filed under sub-section (4) by the tenant and the same is being examined for the purposes of sub-section (5) the Controller has to confine himself only to the averments in the affidavit and the reply if any and that becomes manifestly clear from the language of sub-section (5) that the Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from recovering possession etc. The jurisdiction to grant leave to contest or refuse the same is to be exercised on the basis of the affidavit filed by the tenant. That alone at stage is the relevant document and one must confine to the averments in the affidavit. If the averments in the affidavit disclose such facts which, if ultimately proved to the satisfaction of the Court, would disentitle the landlord from recovering possession, that by itself makes it obligatory upon the Controller to grant leave. It is immaterial that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. It is distinctly possible that a tenant may fail to make good the defence raise by him. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown."Eviction petition No.893/14 (New No. 78568/16) Page 11 of 16 12
22. Reliance is also placed upon the decisions of the Hon'ble Supreme Court in the cases of Santosh Kumar Vs. Bhai Mool Singh 1958 AIR 321, Charan Dass Duggal Vs. Brahma Nand (1983) 1 SCC 301 and Inderjeet Kaur Vs. Nirpal Singh I (2001) SLT 1.
23. This court is of the view that the landlord being the best judge of his requirement is not an absolute principle of law. The court is required to check the bonafide of the alleged requirement of petitioner for seeking possession of the tenanted premises. In this context, reliance is placed upon the decision of the Hon'ble High Court in the case of Khem Chand & Ors. vs Arjun Jain & Ors. Rev. No.442/2012 dated 13 September, 2013. The Hon'ble High Court of Delhi held the following in this case:
"39. It is true that there are other cases where in the appropriate facts the courts have held that the landlord is the best judge to decide his convenience. The said are the line of the cases where the landlord is put to the extreme hardship by tenant's insistence that he should adjust to inconvenient premises by squeezing his needs. The facts of the present case are entirely different where the landlord is enjoying the property with in the same location though as a tenant coupled with another property lying vacant within the same location though on the different floor owned by the landlord himself where the business can be carried out as per the market conditions and thereafter the landlord is seeking to vacate the third property in the same Eviction petition No.893/14 (New No. 78568/16) Page 12 of 16 13 location on the basis of bonafide need and non availability of the alternative accommodation which raises the doubt on the need of the landlord as not felt need but fanciful desire. ... It is not the thumb rule that in every case the landlord always is the best judge and the court is helpless by not scrutinizing the stand of the tenant while testing the reasonableness and suitability of the alternative accommodation. Actually it depends upon the case to case basis. The courts have otherwise also held consistently that even though the landlord is the best judge to decide his needs and he cannot be compelled by the tenant to accommodate at the place which is lesser in any way than the place which is sought to be evicted, still the court would examine the reasonableness and suitability of the existing accommodation by weighing what is available with the landlord vis-à-vis the plea of the tenant.
...42. The Supreme Court in the case of M.M. Quasim Vs. Manohar lal, AIR 1981 SC 1113 which is a three bench decision passed by the court speaking through Hon'ble Desai, J. (as His Lordship then was) has categorically flawed this approach of mechanically stating that the landlord is the best judge without applying a judicious approach in the matter."
24. In the case of M.M. Quasim Vs. Manohar Lal Sharma & Ors. 1981 AIR 1113, the Hon'ble Supreme Court held the following:-
"It would, however, be a bald statement unsupported by the Rent Act to say that the landlord has an unfettered right to choose whatever premises he wants and that too irrespective of the fact that he has some vacant premises in possession which he would not occupy and try to seek to remove the tenant. This Eviction petition No.893/14 (New No. 78568/16) Page 13 of 16 14 approach would put a premium on the landlord's greed to throw out tenants paying lower rent in the name of personal occupation and rent out the premises in his possession at the market rate."
25. The very purpose of creation of machinery of Rent Controllers and Additional Rent Controllers, is that the plea of the landlord is to be tested on the anvil of bonafide. The ground on which the landlord is seeking eviction of tenant has thus been put to test and this itself implies that the grounds urged have to be carefully scrutinized rather than being accepted on face value. It cannot be held that despite the concealment by the petitioners about property no. 142, the landlord can evict the tenant.
26. The aforesaid decisions makes it incumbent for the court to analyse the alleged requirement of the landlord and assess if it is natural, real, sincere and honest. It has already been explained hereinabove that there are doubts on the availability of more rooms on the ground floor of the property bearing no. 11200, 11201, 11202, 11203, 11208 and 11209, situated in Baghraoji Chowki, Gali Kaptanwali, Gaushala Marg, Kishan Ganj, Delhi-110006.
27. In the case of Liaq Ahmed and Ors. Vs Habeeb-Ur-Rehman (2000) 5 SCC 708, the Hon'ble Supreme Court held that the rent control legislations Eviction petition No.893/14 (New No. 78568/16) Page 14 of 16 15 seek to strike a balance between the rights of the landlord and requirements of the tenant. It was held that the purpose of the legislation should not be nullified by giving hyper technical or liberal construction to the language of the statute which instead of advancing the object of the Act may result in its frustration. It was observed that Rent Acts have primarily been enacted to give protection to the tenants and with paramount object of essentially safeguarding their interest and their benefit. It was held that a rational approach should be followed in interpreting the law relating to control of tenants.
28. The prime question to be answered is that whether the tenanted premises is required bonafide by the landlords for their use and whether they have no alternative suitable accommodation for their requirement. If on such vague pleas as is taken in the present eviction petition, tenant protected by the Delhi Rent Control Act is allowed to be evicted, it would frustrate the very purpose of the enactment of the beneficial legislation, since every landlord can take such a plea that he wants his property for business or residence without giving any further details and this plea would, if the case of the petitioner's contention is accepted, would be judicially inscrutable. Eviction petition No.893/14 (New No. 78568/16) Page 15 of 16 16
29. Triable issues have been raised by the respondents and there are sufficient grounds which entitle the respondents to have leave to defend and contest the present eviction petition u/s 14 (1) (e) Delhi Rent Control Act of the petitioner.
30. Accordingly, the application of the respondents no. 1 to 3 seeking leave to defend is allowed. Let the written statement be filed within 30 days from today after supplying advance copy to the petitioners. Replication be filed within 30 days from receiving copy of the written statement after supplying advance copy to the respondents.
31. To come up for petitioners' evidence on 30.07.2019. Advance copy of evidence by way of affidavit be supplied to the respondents at least 15 days Digitally signed by Shirish prior to the next date of hearing. Shirish Aggarwal Date: Aggarwal 2019.04.06 13:08:28 +0530 SHIRISH AGGARWAL ARC-I, Central District, Tis Hazari Courts, Delhi (Announced in open court on 04th April, 2019) Eviction petition No.893/14 (New No. 78568/16) Page 16 of 16