Delhi District Court
Smt. Chitra Sharma vs Sh. Suresh on 24 January, 2007
IN THE COURT OF SH. S.S. MALHOTRA : ADDL. RENT
CONTROLLER : KARKARDOOMA COURTS DELHI.
Suit No. E 268/06
In the matter of :-
Smt. Chitra Sharma
W/o Sh. Vinod Kumar Sharma
R/o E-5/20, Erishan Nagar,
Delhi-51.
....... Petitioner
Versus
Sh. Suresh
S/o Sh. Radhey Shyam,
R/o 2005, DDA Janta Flats,
Nand Nagari, Delhi-93.
....... Respondent
Date of judgment : 24.1.07
1. By this judgment I shall dispose off the petition of the petitioner under Section 14(1)(e) r/w Section 25-B of Delhi Rent Control Act for evicting the respondent from the tenanted premises i.e. One room on the first floor, with kitchen, common bath, latrine , in property bearing No. 2005, DDA Janta Flats, Nand Nagri, Delhi-93, as shown red in the site plan, hereinafter called the suit property.
2. Brief facts stated by the petitioner in the petition are that she is the owner/landlady and respondent is tenant under her in respect of suit premises which was let out to him for residential purpose and at present the rate of rent is @ Rs. 625/- p.m., excluding all other charges. It is further submitted that the suit premises is now required bonafide by the petitioner herself for the use of herself and her family members, the family of the petitioner consisting of herself, one son and two daughters and all the family members of the petitioner are dependent upon the petitioner for the purpose of residence and the petitioner has no other property in Delhi. It is further submitted that the petitioner is residing with her mother-in-law and she has also given ultimatum to the petitioner to arrange accommodation anywhere. It is further submitted that petitioner is running her shop of tent house on the shop situated on the ground floor of the rented accommodation and the rented accommodation, therefore, is more suitable to the petitioner for her residence. In these circumstances, it is prayed that eviction order in respect of suit premises be passed in favour of the petitioner and against the respondent.
3. The respondent was ordered to be served under Schedule III of DRC Act and the respondent filed an application seeking leave to contest the petition and after hearing Ld. counsel for the petitioner, application seeking leave to contest the present petition was allowed vide order dt. 31.1.04 and the respondent was directed to file written statement.
The respondent has filed written statement taking various preliminary objections, inter alia, that no cause of action has arisen in favour of the petitioner and against the respondent for filing the present petition, the petitioner is bad for non joinder of necessary parties as the petitioner has not impleaded her three children who have their joint interest in the property, the petitioner has no locus standi to file the present suit on the basis of unregistered Power of Attorney and also because of the fact that Sh. Vinod Sharma has expired without delegating any power to the petitioner. It is further submitted that Sh. Bishamber Dayal S/o Sh. Ahodha Prashad was the owner of the property in question which was let out to the respondent by Smt. Khusali Devi but she could not transfer the title of the property to Sh. Vinod Sharma as she was not empowered to transfer the right and title of the property to Sh. Vinod Sharma as per settled provisions of law and therefore, the petitioner has concealed all these facts and as such petitioner has not come to the court with clean hands and the petition is bad in the eyes of law.
On merits, it is submitted that petitioner has no legal title documents in her favour in respect of the suit property but he himself is tenant in the suit property is not denied. It is also submitted that the premises was let out for residential as well as commercial purpose and there are four shops on the ground floor and regarding extent of premises and rate of rent it is submitted that rate of rent is Rs. 625/- p.m but it is inclusive of other charges. It is also denied that the petitioner is owner of the tenanted premises therefore, it is submitted that she has no locus standi to file the present petition as the petitioner had not even let out the premises to the respondent. It is further submitted that the requirement of the petitioner is malafide and she wants to get the premises evicted in order to sell it on higher rates. It is further submitted that the petitioner has given advertisement in newspaper Dainik Jagran dt. 19.2.03 for the sale of the property in question and it is submitted that petitioner proposes to divest /transfer this property to third party and it clearly shows that the petitioner has no bonafide need. It is further submitted that husband of the petitioner has already sold top floor of the premises in question to Sh. R.K. Chaudhary, whose name is mentioned in the site plan and therefore, the present petition is malafide and It is further submitted that the respondent is having only one room and the same can never be suitable for the petitioner and her three children who are studying in Krishna Nagar area. It is further submitted that the petitioner has not placed any document to prove the threat given by her mother-in-law and even she has not mentioned the date, month and year of the alleged threat and therefore, no cause of action lies in favour of the petitioner. It is further submitted that the petitioner has other accommodation in Delhi but has not stated so intentionally and deliberately in the petition. It is further submitted that she is owner of property bearing No. E 5/20, Krishna Nagar, Delhi and she is residing there in two bed rooms, drawing room, kitchen, bath on the first floor and the same is a three storied building. The petitioner is also owner of property bearing No. , DDA Janta Flats, Nand Nagri, G.T.B. Enclave, Delhi and the first floor of the said property is lying vacant and the said first floor consist of two rooms, latrine, kitchen and bath. It is further submitted that petitioner in the entire petition has not mentioned that how much accommodation is needed by the petitioner and how much accommodation is occupied by her at present, nor she has filed any site plan of the accommodation occupied by her intentionally and deliberately and therefore, the petition of the petitioner may kindly be dismissed. It is further submitted that one Smt. Prem Lata r/o 2005, DDA Janta Flats, Nand Nagri, GTB Enclave is also claiming herself to be the owner of the premises in question and she has made statement to this effect in the Court of Law which caused a doubt in respect of the ownership of the property in question and the dispute of ownership is going on in between the petitioner and Smt. Prem Lata. It is denied that mother-in-law of the petitioner has asked the petitioner to live separately as alleged and it is therefore, prayed that petition of the petitioner may kindly be dismissed.
4. Replication was filed by the petitioner, wherein she has generally denied the averments made in the written statement and reiterated and reaffirmed the averments made in her petition. She has specifically submitted that Power of Attorney in favour of Sh. Vinod Sharma is registered by Notary Public. She has specifically denied that she is not owner of the property as alleged. She has also denied that petitioner has divested or proposed to divest the suit property to the third party and she has also denied that the petitioner has given any publication in newspaper. It is also denied that Sh. Vinod Sharma has already sold the top floor of the suit property to Sh. R.K. Chaudhary as alleged and it is clarified that Sh. R.K. Chaudhary has forged the documents and the case is pending against him in the Civil Court and the petitioner is owner of the said floor till today. It is submitted that the petitioner is residing in only one room at the mercy of her mother-in-law at Krishna Nagar and her mother-in-law has given warning her to vacate the said premises. She denied that she owns the property bearing No. 2135, DDA Janta Flats, Nand Nagri, GTB Enclave Delhi as alleged and reiterates that she has no other property except the suit property. The claim of Smt. Prem Lata is also denied by the petitioner as is being alleged by the respondent.
5. After completion of the pleadings, parties were directed to lead evidence. The petitioner has accordingly examined herself as PW1, her mother-in-law as PW2 and Sh. R.K. Sharma as PW3. The respondent has examined himself as RW1 and closed his evidence.
6. The petitioner in her evidence has deposed in terms of his petition. She has deposed that she is owner and landlady of the suit property which was purchased by her husband vide GPA, SPA, agreement to sell, affidavit and such other documents which are Ex. PW1/1 to PW1/9. After the death of her husband she has become the owner of the property and the respondent is tenant in the tenanted portion as per site plan which is Ex. PW1/10. The premises was let out to the respondent for residential purpose and the respondent and his family is residing therein. She has no other accommodation in Delhi except the suit property. At present she is residing with her mother-in-law who has also directed her to vacate the said premises, her family consist of herself, her son and two daughters and her ration card is Ex. PW1/11. She has further deposed that she has never given any publication / advertisement in Dainik Jagaran and when she came to know about the same, she had made complaint with the Police Station vide Ex. PW1/12. She has also deposed that she has never sold any portion to any person with the name of Sh. R.K. Chaudhary as alleged and he is in unauthorized occupation of the same.
She was cross examined by Ld. counsel for the respondent, in her cross-examination she deposed that there are four shops in the property where the suit property is situated. One shop was with her and other shops were with some electrician. The premises is question is 2 ½ storied building. There are two rooms on first floor and one room set is on the 2nd floor. The top floor of the property is in possession of Sh. R.K. Chaudhary who is in forcible possession of the same. She denied that Sh. R.K. Chaudhary is owner of the property and rather deposed that two cases are pending in the Court in between Sh. R.K. Chaudhary and herself and one is filed by Sh. R.K. Chaudhary against Sh. Vinod Sharma for specific performance and another case is filed by her. She has also denied that premises in question was let out to the respondent by Smt. Khushali Devi and submitted that suit for eviction on the ground of non payment of rent was filed against the respondent but the same was dismissed by the Court of Sh. S.K. Jain, th the Ld. ARC by granting benefit of Section 14(2) of DRC Act and an appeal was filed against the order claiming rent @ Rs. 450/- p.m. and the matter was ultimately got compromised and the rate of rent was settled @ Rs. 625/- p.m. and the appeal was withdrawn. Original allottee is stated to be Sh. Bishamber Dayal who transferred the property in the name of Smt. Khushali Devi and she has also admitted correct that she has not filed the documents of transferring the property by Sh. Bishamber Dayal in favour of Smt. Khushali Devi. She has also admitted that documents of transfer by Smt. khushali Devi in favour of Sh. Vinod Sharma are also not registered with the Sub-Registrar, but she denied the suggestion that she or her husband was not owner of the suit property. She has deposed that she has three children and her son is about 21 years of age and the daughters are of 17 years and 20 years of age respectively, who are studying. She has further deposed that she does not require any separate accommodation for her children, although they are of 17 years, 20 years and 21 years of age. Her mother-in-law and her sister-in-law are also residing with her. Her brother-in-law (Devar) has already expired and therefore, her mother-in-law reside with her and sometime she resides with her sister-in-law. She denied the suggestion that she has given advertisement in the newspaper for sell of the property No. 2005, Janta Flat, Nand Nagri, Delhi. She further deposed that she has made complaint against this publication to the SHO and DCP Seelampur, Delhi. She has also denied the suggestion that any person has come to her for the purchase of the property on the basis of publication made in Dainik Jagran. She further deposed that possession of Sh. R.K. Chaudhary is shown in the site plan Ex. PW1/10, but the said possession is illegal and it is correct that she has not mentioned in the site plan that possession of Sh. R.K. Chaudhary is illegal.
She further deposed that she is in possession of four rooms in Krishna nagar premises and her mother-in-law is also residing in the said rooms. But she denied that she is owner of the property No. 2135, Janta Flat, Nand nagri, Delhi. The premises at Krishna nagar consist of three floors and each of the three floors consists of four rooms set. The MCD has demolished two floors of the said premises and she is in possession of first floor in Krishna nagar premises. But the premises at Krishna nagar is not suitable to her. She further submitted that she did not know that in whose favour the sale deed of premises at Krishna Nagar is and she cannot say whether her father in law had executed a sale deed in favour of her mother in law before his expiry. She also does not know as to whether her husband has any share in the ownership of the property at Krishna Nagar after the death of her father-in- law. She has further deposed that her mother-in-law is of 65/67 years old and her mother-in-law has not given any notice to her for vacating the premises and she volunteered that no notice is given to daughter-in-law by mother-in-law. She has also deposed that there is no complaint filed against her by her mother-in-law in respect of any dispute. She further deposed that her mother-in-law has come in the Court today to depose, but she did not know what she has to tell the court. She further deposed that her mother-in- law sometimes resides with her and sometimes with her sister-in- law for the purpose of meal. She denied the suggestion that this is a concocted story by her regarding threat from her mother-in-law. She has also denied the suggestion that she is not in bonafide need of the tenanted premises nor she has other suitable residential accommodation in Delhi.
7. PW2 has deposed in her affidavit that she is mother-in-law of the petitioner and well aware with the facts of the present case. She is the owner of the property bearing No. E-5/20, Krishna nagar, Delhi and she has also deposed that petitioner has no other property except the suit property and the suit property is very suitable for residence of the petitioner as she is running a shop in the same property to earn her bread on the ground floor of the suit premises.
In her cross examination, PW2 deposed that premises at Krishna nagar was in the name of her husband and did he not make any sale deed in her favour and her husband had left a Will in her name and as such she is owner of the property at Krishna Nagar. She denied the suggestion that petitioner has any share in the property at Krishna Nagar but she volunteered that she has a right only after her death. She further deposed that she only wishes that she should be shifted at her house at Janta Flat, Nand Nagri, Delhi. She has come to the court today with the petitioner, but she has not tutored her anything, rather her counsel has informed her about her evidence. She has also deposed that she told the petitioner that she has shortage of accommodation and as such the petitioner should arrange for her another accommodation. She admitted as correct that in her affidavit she has not stated that she herself has shortage of accommodation. She also admitted that she has no dispute with the petitioner and sometime she stays with the petitioner and sometime she stay with her second daughter-in-law. Total accommodation comprising of three rooms, kitchen, latrine and bathroom in which one room has been demolished by th MCD and she volunteered that the room which was demolished was the same in whe she was living and there are two rooms left. Initially the house was in the name of her husband and it was of 100 sq. yards and it was three storied building. There are shops on the ground floor, there is three room set on each, first, second and third floor, of which third floor has now been demolished by MCD and now they are left with two floors. Her grand daughters are studying and her grand son is unemployed and she has no concern whether the tenanted premises which is a Janta flat is suitable or not. She denied the suggestion that she has not directed the petitioner to shift to Janta Flat.
8. PW3, who is brother-in-law of the petitioner has deposed in his evidence that petitioner owns only one property i..e. the suit premises and she requires the same for her own use for residence as she has no other property in Delhi or anywhere in India. Her mother has also directed the petitioner to vacate the premises i.e. E5/20, Krishna nagar, Delhi.
In his cross examination, he deposed that sale deed of the premises at Krishna Nagar is in the name of his father and he did not execute any sale deed in favour of her mother. He himself is residing at Pandara Road. His mother is not alone owner of the property in dispute. and the property at Krishna Nagar is inherited in equal share . There is four storied building at Krishna Nagar and there are four room on each floor. His share at Krishna nagar is lying vacant and again said the he has no portion at Krishna Nagar premises and he volunteered that they have relinquished it in favour of their mother after the death of his father and the relinquishment deed which is registered with the Sub-Registrar is Ex. PW3/R1.
9. RW1, respondent in his evidence has deposed in terms of his written statement. He was cross examined by Ld. counsel for petitioner and in his cross examination he admitted as correct that the petitioner earlier had filed one suit on the ground of non payment of rent, but denied that in that suit he had admitted the petitioner as owner of the premises. He deposed that Smt. Prem Lata is also residing in the tenanted premises and she claims herself as owner of the half of the suit premises but he is regularly paying rent to the petitioner only as per direction of the Court and Smt. Prem Lata has not given any notice regarding rent nor she ever shown any document regarding her ownership of half of the property. He denied the suggestion that Smt. Prem Lata is not owner of any of the portion of the property. He also denied that Sh. Vinod Sharma was owner of the premises earlier. But he deposed that he came to know that Smt. Khushali Devi had sold the property to Sh. Vinod Sharma when Sh. Vinod Sharma filed a petition against him. But it is only his knowledge that petitioner is not owner of the property in question after the death of Sh. Vinod Sharma. He further deposed that one shop in the premises has been sold to one Ikramudin by the petitioner. He also denied that the publication in Dainik Jagran was given by him as 'Chaalbaaji' after filing of the present suit. But he volunteered that it was got published by the petitioner. He denied the suggestion that petitioner needs the premises for residence of himself as well as for his family members. He also denied the suggestion that property dealers are not visiting suit property for purchasing the same. He also denied that top floor of the property has not been sold by husband of the petitioner to Sh. R.K. Chaudhary. He is also aware that suit filed by the petitioner or her late husband is pending against Sh. R.K. Chaudhary. But he cannot said that no suit was filed by Sh. Vinod Sharma. Rather, Sh. R.K. Chaudhary filed the suit for specific performance and one more suit has been filed by the petitioner against Sh. R.K. Chaudhary subsequently to the earlier suit and both the suit are pending for trial. He admitted as correct that petitioner is running business of tent house on the ground floor of th suit premises. But denied the suggestion that premises in question therefore is suitable to the petitioner to reside there. He also denied the suggestion that premises no. 2135, Nand Nagri, Delhi does not belong to the petitioner. He denied the suggestion that there is no dispute between Smt. Prem Lata and the petitioner and deposed that dispute in between Smt. Prem Lata and the petitioner is going on, but he did not know where the dispute is going on. He also cannot say about the relationship of the petitioner and her mother-in-law. But he only know that both the daughters of the petitioner are now married and he himself does not have any house in Delhi or elsewhere to reside.
10. I have heard the arguments advanced on behalf of both the parties and perused the record.
11. In order to claim eviction U/s 14(1)(e) read with section 25(B) of the DRC Act , a landlord has to plead and prove the followings ingredients:-
a. that he is owner/landlord of the suit premises; b. that the suit premises were let out for residential purposes;
c. that the petitioner has no other reasonably
suitable residential accommodation; and
d. that the premises are required bona fide by the
petitioner for occupation as residence for himself or for any member of his family dependent upon him for the purpose of residence.
12. As far as the first ingredient as to whether the petitioner is owner/landlord of the suit premises is concerned, the petitioner has submitted that she is owner / landlady of the suit premises and the respondent in his written statement has denied the same on the ground that original owner of the property was Sh Bishamber Dayal and the premises was let out to him by Smt. Khushali Devi and no valid transfer of documents was done in favour of Sh. Vinod Sharma and as such petitioner cannot inherit the property of Sh. Vinod Sharma, who himself was not owner of the tenanted premises. The contentions of the respondent is contrary to his own pleadings. On one hand, he submits that petitioner has not impleaded as party all the three children of Sh. Vinod Sharma who have joint interest in the property and simultaneously he submits that Sh. Vinod Sharma itself was not the owner of the property. He has not stated as to who is the owner of the property, if Sh. Vinod Sharma was not the owner of the property. It is admitted fact that in a previous petition in between the parties, Sh. Vinod Sharma was held to be a landlord of the premises and the respondent was making payment of rent to him. He has not produced any documentary evidence by which Sh. Vinod Sharma has divested all his property to someone else and as per ordinary rule of succession, the petitioner has to succeed the property of her husband after his death. Various questions have been put to the petitioner by the respondent in cross-examination, but ultimately the respondent has not been able to prove that petitioner is not owner of the property. Rather, it is submitted by the respondent that Sh. Vinod Sharma, husband of the petitioner has already sold top floor of the property in question to Sh. R.K. Chaudhary, whose name is mentioned in the site plan by the petitioner. If, Sh. Vinod Sharma was not the owner of the property in question, he could not have sold it to Sh. R.K. Chaudhary and since the respondent himself has admitted that Sh. Vinod Sharma has sold the property, although this fact is denied by the petitioner. Yet as far as, respondent is concerned he is now estopped to say that Sh. Vinod Sharma was not the owner of the property. Even otherwise law with respect to ownership under DRC Act is well settled. In Sushila Kanta Vs. Rajeshwar Kumar, 1980, RLR 289, wherein, it was held that an owner U/s 14(1)(e) of the DRC Act need not be an absolute owner requiring sale deed in his favour contemplated by the general law in Section 54 TP Act, it is enough, if he has paid for and built tenancy premises. He may also be owner by virtue of contract i.e. sale agreement and Power of Attorney in his favour. A restricted meaning can not be given to "owner" for the purpose of the Act. It is observed that the respondent has merely denied that the petitioner is not owner of the suit property. However, he has not specified as to who is the owner of the suit property. In this regard reference can be made to the following judgments:-
a. B.K.Gupta Vs. Sudarshan Chaudhary, 2000(1) RCR 53, wherein the premises were alloted to the landlord by the government on hire purchase basis and the landlord has given the premises on rent. It was held that tenant can not claim that the landlord was not owner of the suit property. b. Smt. Parvati Devi Vs. Mahinder Singh, 1996(1), AIRCJ, 583, wherein, it was held that for the purpose of this provision the question of title has to be viewed in light of the fact that tenant is not rival claimant of title. c. Satya Malhotra Vs. Mohinder Singh Arora, 1997(2) RCR 645, wherein in a case U/s 14(1)(e) of the DRC Act, it was held that rent court is not court to decide title of the parties and that the tenant cannot challenge title of subsequent purchaser.
In view of the above judgments, it is held that the petitioner is owner/landlady of the suit premises.
13. Now coming to the aspect as to whether suit premises was let out for residential purpose. The petitioner has deposed in his petition as well as evidence that suit premises was let out to the respondent for residential purpose and the respondent is residing in the suit property. In the written statement the respondent however submitted that premises is let out residential as well as commercial purpose but he never explained as to how the same is commercial. He even has not lead any evidence on the same as to what commercial activity he is doing in the suit premises. Further, the explanation as appended U/s 14(1)(e) of the DRC Act makes it clear :-
For the purpose of this clause, premises let for residential purposes include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes.
Law on that aspect is further clear. In Sh. B. Banerjee vs. Shri Romesh Mahajan, 1996 IV AD (Delhi) 49 it was inter alia, held that the question as to for what purpose the premises was let out, for that we have to see the purpose when the premises was let out. In M/s Precision Steel &Engineering works Vs. Prema Deva Niranjan Deva Tayal 2003(1), RCR 48(SC) the Hon. Supreme Court dealt with the purpose for which the premises are let out, in case U/s 14(1)(e) of the DRC Act at length and,inter-alia, held that:-
"In our opinion the expression "the premises let for residential purposes" should be construed liberally and not technically or narrowly; meaning thereby, where the premises are solely let for residential purpose they are undoubtedly covered by Section 14(1)
(e) but even when the premises are let out for composite or mixed purpose if the predominant or main purpose of letting is for residential purposes, the same would be included within the expression"the premises let for residential purposes / An incidental, a secondary or unauthorized user of the premises for purposes other than residence would not take the premises out of the meaning of the expression" the premises let out for residential purposes.
From the aforesaid, it is clear that the premises let out to the respondent was for residential purposes only.
14. Now coming to the ingredient as to whether suit premises are required bona fide by the petitioner for occupation as residence for herself or for any member of his family dependent upon him for the purpose of residence.
Bona fide means genuine that is done or carried out in good faith. It was observed in Lalit Kumar Vija Vs. Saroj Kumari 1969 RCR 555.
"The meaning of bona fide in this context appears to be two fold. Firstly, the need must be a genuine one and not a frivolous one. The second aspect of the bona fide is that the landlord is not motivated by extraneous consideration in trying to recover the possession from the tenant"
In Om Prakash Singhal Vs. Roshan Lal Khana, 1969 RCR 391, it was observed :-
"As a broad workable rule, the landlord must be left to assess his requirement in the background of his position , circumstances, status in the life and social and other responsibilities and relevant factors. "
In judging his special needs and convenience certainly the landlord would have a choice. This does not ,however, mean that whatever the landlord decides about his own needs would be beyond question by the Rent Control Authorities. For, whether the need of the landlord is bona fide is to be judged not by the landlord himself but by the Controller. In Neta Ram Vs. Jeewan Lal , AIR 1963 (SC) 499, it was observed that a clear distinction has to be borne in mind that what the provisions refer to is the bonafides of the claim of the landlord and not the bonafides of the landlord. The distinction between the two lies in the fact that the landlord may honestly feel the requirement but it is not borne out by pleadings and surrounding circumstances. In the circumstance, the claim would not be genuine although the landlord's bonafides exist. According to this distinction, even if bonafides., the landlord's requirements has to be reasonable. The controller has to be satisfied about the genuiness of the claim. To reach this conclusion, obviously the Controller must be satisfied about the reality of the claim made by the landlord, and this can only be established by looking at all the surrounding circumstances. In determining whether the claim is bona fide, the court is entitled and indeed bound to consider whether it is reasonable. The time honored notion that the right of re-entry is unfettered and that the owner landlord is the sole judge of his requirement has been made to yield to the needs of society which had to enact the Rent Acts specifically devised to curb and fetter the unrestricted right of re-entry and to provide that only on proving some enabling grounds set out in the Rent Act the landlord can re-enter . One such ground is of personal requirement. The convenience of the landlord, though not a matter exclusively within his disceration, cannot be totally ignored. The choice made by the landlord is open to scrutiny.
Ld. counsel for the petitioner has argued that the suit premises is situated on the first floor and the petitioner herself has a shop on the ground floor of the suit property and therefore, the same is required bonafide by the petitioner so as to carry on her business activity smoothly. He has also relied upon Rattan Lal vs. Ramesh Chand Gupta, 34 (1988) DLT 82, wherein, it was held that suit premises near to the business of landlord is bonafide. Ld. counsel for the petitioner has also argued that her mother-in-law has directed her to live in tenanted premises and live in her own premises and the petitioner has no right in the property of her mother-in-law during her life time and therefore, the petitioner requires the tenanted premises bonafide. Ld. counsel for the respondent on the other hand has argued that the premises is not required by the petitioner bonafide as she wants to sell out the property and she has otherwise sufficient accommodation with her.
I have gone through the record. Few facts are quite clear. The petitioner in the entire petition has not stated that what accommodation she has at present. It has come in the evidence that she at present is residing at E 5/20, Krishna Nagar. In the petition the the petitioner has never disclosed as to what accommodation she has in premises No. E 5/20, Krishna Nagar. She has not filed any site plan of the property where she is residing at present. In her cross-examination, she has admitted that it is a three storied building and each floor has four room set which indicates that there are about 12 rooms with the petitioner's mother-in-law. The requirement of the mother-in-law of the petitioner is also not explained. The husband of the petitioner as well as brother-in-law (Devar) has already expired. It has also come in the evidence that mother-in-law of the petitioner sometimes resides with the petitioner and sometimes with her sister-in-law. The word used by the petitioner are quite worth observing. It is observed by the Court that petitioner has not stated that she is residing with her mother-in-law. Rather, she has deposed that her mother-in-law sometimes resides with her and sometimes with her other daughter-in-law. Further, it has come of record that MCD has demolished some of the portion of property at Krishna Nagar. Which portion has been demolished and how that demolition has reduced accommodation with the petitioner has also not been substantiated by the petitioner by way of affidavit. Admittedly, she has only one son and two daughters and the respondent in his cross-examination has submitted that both the daughters of the petitioner have got married. This fact has also not been disputed by the petitioner. The son of the petitioner is unemployed. No doubt the married daughters of the petitioner would be requiring the accommodation as and when they used to come to meet the petitioner. But simultaneously it is not disputed that they would only be coming at Krishna Nagar. It is not the case of the petitioner that premises is required or is to be used by the married daughters of the petitioner or he would be having intention to give it to her son-in-law or her son would be living separately in the tenanted premises. Rather, in the evidence it has specifically come that she does not require the disputed premises for separate accommodation for her children, although they are of the age of 21 years, 20 years and 17 years. There is no material on record by which it can be adjudged as to whether the accommodation which the petitioner at present is having is insufficient for the purpose of her residence or for the purpose of residence of her children. She has only stated that her mother-in-law has given ultimatum to leave the premises No. E 5/20, Krishna Nagar but in evidence she has failed to prove this fact. Rather, the mother-in-law of the petitioner has appeared in the witness box and deposed that she has not given any ultimatum to the petitioner but it is only her wish that the petitioner should live in her own house. In Law there is a difference in between a mere desire to live in one's own premises and in genuine and bonafide requirement of the petitioner. It is only bonafide requirement of the petitioner which gives a right to the petitioner to claim for eviction and not mere desire. Not only this, the petitioner has not been able to prove that she has not given an advertisement in the newspaper Dainik Jagaran for selling of the property and not only that she even has sold one of the shop to one Ikramuddin thereafter. Although, selling of shop does not come for getting the present petition disposed off which is only for the eviction of residential accommodation that too stating that the requirement of the petitioner is for the purpose of residence, but it shows the intention of the petitioner that she definitely had given some advertisement in the newspaper. She although denied that she has not given any publication in the newspaper, rather it is the respondent who has given it in the newspaper so that malafide of the petitioner can be proved. To prove this fact, it was bounden duty of the petitioner to summon the record from the concerned newspaper office and prove it that it is the respondent who has given publication on her behalf. Rather the petitioner made complaint to the police and kept silent. She has not followed any action against the person to whom she believed that he had given the advertisement in her name in a newspaper. Therefore, the intention of the petitioner appears to be not bonafide and she has not been able to prove that this publication was given by the respondent on her behalf without any authority. Further, the petitioner has not been able to prove at any place that who would be shifting in the tenanted premises after vacating the same by the respondent. Admittedly, the tenanted premises is situated much away from the place where the petitioner is residing at present. The petitioner has no intention to separate her children as it is evident from the evidence. Accordingly, the court is of the opinion that petitioner has failed to prove that she requires the suit property bonafide for the purpose of her residence and for the purpose of residence of her family members dependent upon her for the purpose of residence.
15. Now coming to the aspect as to whether the petitioner does not have any alternative residential accommodation with her. The onus to prove this fact is also upon the petitioner and in view of the discussions held here-in-above, it is clear that the petitioner has not filed the site plan of the present accommodation with her so as to prove that she does not have suitable accommodation with her. No doubt, she submitted that the property which is with her mother-in-law is exclusively of her mother-in-law and she has no right in the same so far, but it is also correct that she is residing in two rooms in the said premises and the property where she is residing is constructed upto three floors ( although one floor is stated to have been demolished but it is not explained as to whether it is worth using or not) but that accommodation is sufficient accommodation and is better than the tenanted premises. The tenanted premises consist of only one room, kitchen, common bath and latrine. I have perused the site plan and even in the site plan the kitchen has not been shown. The daughters of the petitioner are married, she has only one son, her husband and one brother-in-law unfortunately have already expired and mother-in-law of the petitioner in these circumstances is alone. Her another brother- in-law, who has appeared as PW3 is stated to have been living at Pandara Road and in these circumstances, there is no explanation as to how the petitioner who at present is using four room set at second floor of the property No. E 5/20, Krishna Nagar is able to say that she has no suitable or alternative residential accommodation with her. Although, it is beyond the parameters of Section 14(1)(e) of the DRC Act that the Court should discuss the requirement of old mother-in-law of the petitioner who is 65/67 years old at the time of giving her evidence, but for passing reference, it is equally important that said mother-in-law would also remain alone in three storied building, having four rooms set on each floor. This fact is also getting support when the petitioner herself says that her mother- in-law is dependent and sometimes lives with her and sometimes with her sister-in-law for the purpose of meals. All this suggest that the petitioner does have suitable alternative and residential accommodation with her in comparison to the tenanted premises which even does not consist of a separate bathroom and latrine. And this fact gets support from the fact that Smt. Prem Lata is residing on the same floor where tenanted portion is situated and she is using bathroom and latrine in common. Therefore, the petitioner has failed to prove that she does not have any alternative accommodation with her.
16. Keeping in view the discussions held here-in-above, the court is of the considered opinion that petitioner has not been able to prove her case U/s 14(1)(e) of the DRC Act. The same is thus dismissed. No order as to cost. File be consigned to the record room.
(S. S. Malhotra)
Addl. Rent Controller,
Announced in the open Karkardooma Courts,
court today i.e. 24.1.07 Delhi.