Delhi District Court
Smt. Kamlesh Devi vs Sh. Kailash on 31 January, 2012
IN THE COURT OF SH. ANIL KUMAR SISODIA, SENIOR CIVIL
JUDGECUMRENT CONTROLLER (NORTH EAST DISTRICT) :
KARKARDOOMA COURTS : DELHI.
EVICTION PETITION NO. 123 OF 2011
(UNIQUE I.D. NO.02402C0237522011)
SMT. KAMLESH DEVI
S/o Late Sh. Ram Kishan
R/o H.No. 252, BlockA,No.11, Brij Puri,
Delhi110094. ....... PETITIONER
VERSUS
SH. KAILASH
S/o Sh. Hargian Singh
R/o H.No.252, First Floor,
BlockA, Gali No.11,
Brij Puri, Delhi110094. ....... RESPONDENT
U/s 14 (1)(e) r/w Section 25B DRC Act
Date of institution : 10.08.2011
Order reserved on : 18.01.2012
Date of order : 31.01.2012
O R D E R :
1. Vide this order, I shall dispose of an application for leave to defend filed by the respondent in reply to the eviction petition E123/11 Page : 1/10 filed by the petitioner u/S. 14(1)(e) r/w Section 25B of the DRC Act.
2. The facts necessary for the disposal of the application for leave to defend are that the petitioner is the owner and landlady of the premises bearing House No.252, BlockA, Gali No.11, Brij Puri, Delhi110094. The respondent is a tenant in respect of one room and common latrine bathroom on the first floor more specifically shown in red colour in the site plan annexed with the petition (hereinafter referred to as the tenanted premises). It has further been stated that the petitioner is a senior citizen aged about 70 years and is suffering from various medical ailments relating to heart. The petitioner has only two rooms on the ground floor (one bed room and one drawing room) alongwith one kitchen, common bath and latrine at the first floor and two rooms on the second floor which have been letout to the other tenants. The portion under the occupation of the petitioner is not at all suitable for her residence as she is suffering from joint pain and since latrine and bathroom are situated at the first floor, it is difficult for her to climb the upstairs off and on again and therefore, she requires the tenanted premises occupied by the E123/11 Page : 2/10 respondent for her own residence. It has also been stated that the petitioner cannot live alone and she is dependent on her daughter and son in law who are dependent on the petitioner for their residence. The petitioner also requires the ground floor for the residence of her daughter and son in law and she needs one room for herself at the first floor and one room for her daughter and son in law at the ground floor. She also requires one drawing cum dining room. The tenanted premises is situated on the first floor and it will be more suitable for the petitioner's use and occupation being an aged lady. The petitioner does not have any other reasonable and suitable accommodation with herself and with her family members. It has further been stated that the respondent is irregular in payment of rent and is in arrears of rent w.e.f. November, 2010. The tenancy of respondent was terminated vide legal notice dated 07.05.2011 which has been duly served on the respondent and the respondent has failed to comply with the same. A prayer has been made for passing an eviction order against the respondent.
3. The summons of the eviction petition were sent to the respondent in the prescribed form as per Schedule III under the DRC Act. In E123/11 Page : 3/10 pursuance of the service of the summons, the respondent filed an application for grant of leave to contest the eviction petition alongwith the affidavit. The respondent has taken an objection that the tenanted premises is not covered under the notification of DRC Act and this court has no jurisdiction to try the present petition. It has further been stated that the respondent is not the tenant and Smt. Renu Chauhan, wife of the respondent is the tenant. The petitioner has filed the present petition without any bonafide cause as the petitioner is trying to extract higher rent from the present tenant. The petitioner has filed on record a copy of the medical treatment certificate dated 26.03.2011 showing problem in her both knees while the petitioner did not mention about these facts in the legal notice dated 07.05.2011. It has been submitted that the petitioner has a good health and she does not suffer from any medical problem in her knees. It has been submitted that the petitioner has failed to disclose that Smt. Renu Chauhan, wife of the respondent had filed a suit for permanent injunction against the petitioner being a tenant prior to filing of the present eviction petition. However, that suit was dismissed as withdrawn on 27.08.2011 after recording the E123/11 Page : 4/10 statement of the Counsel for the petitioner that the petitioner would not dispossess the respondent from the suit property without following due process of law. It has been submitted that the present petition is nothing but the counter to the injunction suit filed by wife of the respondent. A prayer has been made for allowing the respondent to contest the eviction petition.
4. The petitioner has filed reply to the application along with counter affidavit denying the contents of the application for leave to defend raising preliminary objections that the present application was not filed within the statutory period of 10 days; application for leave to defend has not been filed in accordance with law and the same has not been supported by any affidavit or proper affidavit. Reliance has been placed on the judgments of R. Murlidhar Reddy & Co. Vs National Projects Construction Corporation Ltd., AIR 1993 (Del.) 68, 72 and Durga Dass Vs. Nalin, 23 IC 377.
On merits, the contents of the application have been denied. It has been submitted that the suit property falls within the local limits of municipality of Delhi and DRC Act is fully applicable where the suit property is situated. The suit property also bears E123/11 Page : 5/10 a municipal number and the people in the area cast their votes to the election of municipality. It has been denied that Smt. Renu Chauhan is a tenant. All other allegations made in the application for leave to defend have been denied and it has been submitted that the respondent has failed to raise any triable issue and the application is liable to be dismissed.
6. I have heard Ld. Counsel for the petitioner as well as counsel for the respondent and have perused the record carefully.
7. Clause (e) of proviso to Subsection (1) of Section 14 of the DRC Act postulates following conditions which must be satisfied : (i) there should be a relationship of landlord and tenant between the parties; (ii) the landlord must be the owner of the property; (iii) the premises must be required bonafide by the owner and (iv) nonavailability of the any other reasonably suitable accommodation.
8. The respondent has not disputed the ownership of the petitioner qua the tenanted premises nor he has disclosed that the petitioner is having any other reasonably suitable alternate accommodation for her requirements. Hence, the ingredients (ii) and (iv) stands satisfied.
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9. However, the respondent has disputed the relationship of landlord and tenant between the parties. The respondent has submitted that his wife Smt. Renu Chauhan is the tenant in the premises. It has also been argued that the petitioner does not require the premises bonafide. The present petition is motivated by malafides it has been submitted that in the legal notice dated 7.5.2011, the petitioner has nowhere mentioned that she requires the tenanted premise for her own use or that her daughter and son in law requires the premises on ground floor. It has further been argued that the medical prescription relied upon by the petitioner does not mention about any heart ailment and the same is not sufficient to depict the actual physical condition of the petitioner who is quite hale and hearty. It has also been argued that the tenanted premises is not covered under the provisions of DRC Act.
10.Counsel for the petitioner, on the other hand, has argued that the respondent has not taken the objection regarding he relationship of landlord and tenant between the parties in response to the legal notice issued by the petitioner and hence, this objection is afterthought and merely a ploy to delay the proceedings. It has E123/11 Page : 7/10 further been argued that there is no written tenancy between the parties and the suit was filed by wife of the respondent only after receiving the notice. It has also been argued that the affidavit filed by the respondent in support of application for leave to defend is defective and hence, there is no leave to defend in accordance with the law.
11.Perusal of the record shows that there is no document to show even primafacie that there exists a relationship of landlord and tenant between the parties. Admittedly, the tenancy was created orally and in such a situation when the respondent has denied the relationship of landlord and tenant between the parties, the question of relationship becomes a disputed question of fact which cannot be decided without the parties leading their evidence.
12.Secondly, the objection regarding the applicability of DRC At to the suit property is another triable issue. Mere submission of the petitioner that the MCD has alloted numbers to the houses in the area or that the Municipal Elections are held is not sufficient to hold that the tenanted premises is situated in an area which is covered under DRC Act. In Mittar Sen Vs. Shakuntala Devi, E123/11 Page : 8/10 DCLR 2000 (II) Delhi 268, it was held that notification including an area within Municipal Corporation of Delhi is not sufficient to bring the same under the control of DRC Act. Further notification under proviso to Sub Section (2) of Section 1 of DRC Act is necessary. Unless the area is so specified in the schedule by a notification, the provisions of DRC Act cannot be made applicable to that area.
13.The petitioner has failed to place on record any notification showing that the area of Brij Puri is covered by the notification issued under Proviso to Section 1(2) of DRC Act. Hence, the applicability of DRC Act to the area in which suit property is situated is also a triable issue which cannot be decided without the parties leading their evidence.
14.Thus, in view of the aforesaid discussion, I am of the considered opinion that the respondent has been successful in raising triable issues in his application for leave to defend. Hence, the application for leave to defend filed by the respondent is allowed. Announced in the open Court Dated : 31st January, 2012 (ANIL KUMAR SISODIA) SCJCUMRC (NE) KARKARDOOMA COURTS DELHI.
E123/11 Page : 9/10 E123/11 Page : 10/10 E123/11 31.01.2012 : Present : None.
Vide separate order announced in the open court today, the application filed by the respondent seeking permission for leave to defend the eviction petition is allowed.
The respondent is directed to file his WS within 30 days from today with copy to the petitioner who will file her replication on the next date of hearing.
Now to come up for filing of replication on 30.03.2012.
SCJcumRC (NE)
KKD. Courts/Delhi/31.01.2012
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