Delhi District Court
Sh. Om Parkash vs Shri Bunda Lal on 15 February, 2007
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IN THE COURT OF SHRI SANJEEV AGGARWAL
RENT CONTROLLER, DELHI
E-461/06
Sh. Om Parkash
Son of Shri Nand Lal
R/o J-127, Kirti Nagar
Delhi ....Petitioner
Vs
Shri Bunda Lal
son of Shri Hari Lal
R/O 9/1, Ashok Nagar
Near Tilak Nagar
Delhi ...Respondent
DATE OF INSTITUTION:14.8.03
DATE OF DECISION :15.2.07
JUDGMENT
Vide this judgment, I will dispose off an eviction petition U/S 14(1)(d) of Delhi Rent Control Act.
2 Brief facts, as stated in the petition are; it is stated that the petitioner is the landlord of the premises bearing No. 10817/XV, Jhandewalan, Pahar Ganj, New Delhi and the respondent is a tenant in respect of the two rooms, as shown in the site plan in red colour at a monthly rent of Rs. 10/- excluding other charges for residential purposes. 3 Now, the grievance of the petitioner regarding the ground U/S 14(1)(d) of D.R.C Act is that neither the tenant nor any of his family members had been residing in the premises in question for a period of six months immediately prior to the filing of the present eviction petition, and the respondent had shifted to 9/1, Ashok Nagar, Delhi, and the premises in 2 question are lying locked.
4 Written statement has been filed on behalf of the respondent in which the relationship of landlord and tenant between the parties, the purpose of letting has not been disputed, but the extent of tenancy premises is stated to be consisting of two rooms, latrine and bathroom. 5 Regarding the ground U/S 14(1)(d) of D. R. C Act, it is denied that neither the tenant nor any member of his family is residing in the premises in question for a period of six months immediately prior to the filing of the present eviction petition, and it is also denied that the respondent has shifted to the address i.e 9/1 Ashok Nagar, New Delhi. It is also stated that, the petitioner had previously filed an eviction petition on the ground of non payment of rent and the said petition was dismissed on 7.2.2003 by Sh. V. K. Sharma, then ld. A. R. C, Delhi, and it is stated that according to the petitioner, respondent is residing in the tenancy premises upto 7.2.2003, as he had not changed the address or informed the court about the change of the address. It is further stated that as the petitioner had not succeeded in the previous eviction petition, he is trying to create another false ground and has filed the present eviction petition, knowing fully well that the respondent had met with an accident and for some time he used to stay at the residence of his nephew and even otherwise six months have not been been completed before filing of the eviction petition. Accordingly, petition is stated to be without any cause of action and is liable to be dismissed.
36 Replication has been filed by the petitioner in which the averments made in the written statement have been vehemently denied and those made in the petition have been reiterated as correct. 7 Petitioner in support of his case has examined himself as PW1. In rebuttal, respondent has also examined only himself as RW1. No other witness has been examined by either party.
8 I have heard the counsels for the parties and perused the evidence and documents on record.
9 To make out a case U/S 14(1)(d) of D.R. C Act, the petitioner has to prove : (i)That there is a relationship of landlord and tenant between the parties, (ii)That the purpose of letting is residential & (iii) Neither the tenant nor any member of his family had been residing in the premises in question for a period of six months prior to the filing of the eviction petition. My finding on the above ingredients are as under:-
(i) That there is a relationship of landlord and tenant between the parties:
The relationship of landlord and tenant between the parties is not disputed. Accordingly, I hold that there is a relationship of landlord and tenant between the parties.
(ii) Purpose of letting:-
Purpose of letting is also not disputed in the pleadings to be residential. Accordingly, I hold that the purpose of letting is residential.
(iii) Neither the tenant nor any member of his family had been residing in the premises in question for a period of six months 4 prior to the filing of the eviction petition.
Regarding this ingredient, PW1 has stated in his affidavit that neither the tenant nor any member of his family was residing in the premises in question for a period of six months prior to the filing of the present eviction petition. The onus to prove this fact that he was residing in the premises in question was upon the respondent, as obviously, the landlord cannot prove the negative. However, PW1 in his cross examination has stated that "earlier, I have filed a suit against Bunda Lal in year 1999. That suit might be dismissed in March, 2003. It is correct that the address mentioned in the previous suit in the year 1999 till the dismissal address of Bunda Lal was same. It is correct that Bunda Lal was residing in the suit premises till the dismissal of the suit". He further stated in his cross examination "I learnt it today during the course of question that the petition was dismissed on 7.2.2003 by the court of Sh. V. K. Sharma, ld. ARC, Delhi". Accordingly, from the aforesaid admission of the PW1 in his cross examination it is clear that till the dismissal of the previous suit, the respondent was residing in the premises in question.
Now, the respondent has to prove that he was residing in the premises from the period 8.2.2003 till the filing of the present eviction petition, which had been filed on 14.8.03. In this regard, PW1 has admitted in his cross examination "It is correct that Bunda Lal had multiple fracture in his hip on 18.6.2003. It might be that Sh. Bunda Lal was in 5 hospital from 18.6.2003 to 15.9.2003." and he further admitted in his cross examination that "It is wrong to suggest that from the date of dismissal of petition 7.2.2003 till the date of accident 18.6.2003 of Sh. Bunda Lal in between he was residing in the premises. Vol. he was casually visiting during such period in the premises. I do not remember, if there was death anniversary of wife of Bunda Lal.", and the respondent in his affidavit has proved his medical certificate which shows that he was suffering from fracture of hip and he had also undergone surgery and he was advised bed rest from 18.6.06 to 15.9.03, and he has proved the telephone bill for the period 1.1.2003 to 28.2.2003, as Ex.RW1/2, which showed the total metered calls as 47. He has also proved the telephone bill for the period 1.3.2003 to 31.3.2003 as Ex.RW1/3, which showed the total metered calls as 41 and he has also proved the telephone bill for the period 1.4.2003 to 30.4.2003 as Ex.RW1/4, which showed the total metered calls as 44 and similarly, he has also proved the telephone bill for the period 1.5.2003 to 30.6.2003 as Ex.RW1/5, which showed the total metered calls as 183. From the aforesaid evidence, it is clear that the respondent had not abandoned the premises altogether, which is evident from the meter reading in the telephone bills, it may be that the said readings are very meagre, but they show, that the respondent was casually visiting the premises, and even otherwise, he had suffered fracture in his hip on 18.6.2003, which fact has also been admitted by the PW1 in his cross examination, that he was in 6 hospital from 18.6.03 to 15.9.03. Accordingly, in these circumstances, it cannot be said that there was any intention on the part of the respondent to abandon the premises altogether, and his absence from the premises was forced one due to the injury suffered by him and telephone bills proved by him, also shows that he was visiting the premises occasionally, which fact has also been admitted by RW1, and it has been held in judgment "The Hindustan Times Ltd. V. J. N. Sethi, SAO 96/69 decided on 20.5.1974", that "If a tenant or any member of his family resides even for a day, during the relevant period, the ground for ejectment against him under clause (d) will not arise. Where it is found that the son of the tenant, being a member of the family of the tenant, had been sleeping in the premises in dispute during his visits to Delhi, it cannot be said that neither the tenant nor any member of his family had been residing in the premises in dispute", which judgment is squarely applicable to the facts of the present case.
In view of the aforesaid discussion, petitioner has failed to make out a case U/S 14(1)(d) of D. R. C Act. Accordingly, eviction petition U/S 14(1)(d) of D. R. C Act is dismissed. File be consigned to record room.
Announced in open court (Sanjeev Aggarwal)
on 15.2.2007 Rent Controller, Delhi
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