Delhi District Court
Smt. Anamika vs Sh. Jatinder Kumar on 8 September, 2009
1
IN THE COURT OF MS. NAVITA KUMARI: ADDL. RENT CONTROLLER: WEST
DELHI
E-250/09/09
Smt. Anamika
W/o Sh. Raj Kumar,
Presently residing at 30/3222,
Beadon Pura, Karol Bagh,
New Delhi-110005. .....Petitioner
Vs.
Sh. Jatinder Kumar,
S/o Sh. Kuljeet Raj,
R/o 45-C, New DDA Flats,
Shivaji Enclave Extension,
New Delhi-110027. .....Respondent
Eviction Petition U/Sec.14(1)(e) r.w. Sec. 25-B of
Delhi Rent Control Act, 1958
ORDER:-
1 The present eviction petition U/Sec.14(1)(e) r.w. Sec. 25-B of Delhi Rent Control Act, 1958 (hereinafter referred to as DRC Act) was filed by the petitioner against the respondent on 16.03.09. The brief facts of the case as narrated in the 2 petition are that the petitioner is the owner of the property bearing no. 45-C, Category-C, Group-2, 3rd Floor, Shivaji Enclave Extension, New Delhi which she has purchased from Sh. Lalit Gupta son of Dr. V. K. Gupta vide registered Sale Deed dated 16.12.2005. The tenanted premises as shown in red colour in the site plan attached with the petition, were let out by the husband of the petitioner i.e. Sh. Raj Kumar to the respondent by way of written Rent Agreement dated 25.10.2007 at monthly rent of Rs.2,000/- exclusive of water and electricity charges. Now the petitioner requires the said premises for the residence of her and her family members. At present the petitioner is residing with her parents-in-law as licensee at their mercy and the said accommodation is a very small accommodation and the petitioner along with her husband and two children namely Yash aged about 7 years and Akshit aged about 2 years is residing in one room only at second floor while the parents-in-law of the petitioner are residing in one room on the first floor. It is very difficult for her parents-in-law to accommodate their two daughters 3 who are residing at Delhi and frequently visit them. The petitioner does not have any other suitable residential accommodation except the tenanted premises with her in Delhi. The husband of the petitioner also does not have any accommodation in his name. The respondent was inducted as tenant for residential purpose but he himself is not residing in the tenanted premises, rather he has sublet the same without the written consent of the petitioner and is also not paying the rent regularly.
2 The respondent was served with summons as per proforma given in Schedule III of the DRC Act and after service the respondent filed application for seeking leave to defend. It has been submitted by the respondent in this application that the petitioner is not the owner of the premises in question and that there exists no relationship of landlord and tenant between the parties. He has further submitted that the premises in question were let out to him by Sh. Raj Kumar son of Sh. Narain Dass vide Rent Agreement dated 25.10.2007 and thus Raj Kumar and not the petitioner, is 4 the landlord of the premises in question. He has further submitted that in the Rent Agreement dated 25.10.2007, Raj Kumar had claimed himself to be the owner and therefore the petitioner is not the owner of the premises in question. He has further submitted that the petition is not maintainable as it has been filed for partial eviction. He has further submitted that the petitioner is the owner of many properties including the property bearing no. 30/3222, Beadon Pura, Karol Bagh, New Delhi where she is living with her family members comfortably. He has further submitted that the present petition is the counter blast to the civil suit for permanent injunction filed by him against Sh. Raj Kumar where the latter had undertaken not to dispossess the respondent without following the due process of law. He has further submitted that the petitioner wants to sell the property in question after getting it evicted from the respondent as the market rate of the property has gone sky high and that she does not require the same for the purpose of residence either for herself or for any of her family members.
53 In reply to this application for leave to defend the petitioner has submitted that she is the owner of the property in question and the respondent is well aware of this fact as in the civil suit for permanent injunction filed by the respondent, the husband of the petitioner i.e. Raj Kumar had categorically stated in the statement recorded in the Court on 19.02.2009 that his wife i.e. the petitioner is the owner of the property in question. She has further submitted that the respondent is well aware that husband of the petitioner had let out the property to the respondent being the male member in the family. She has denied that petition has been filed for partial eviction and has submitted that the tenanted premises have been shown in the site plan which has not been disputed by the respondent. She has denied that she is the owner of many properties including the property bearing no. 30/3222, Beadon Pura, Karol Bagh, New Delhi and has submitted that this property of Karol Bagh belongs to her parents-in-law, the title documents of which have been filed on record. She has further submitted that she has no legal right to reside in the 6 said property and she is living their only in the capacity of a licensee. She has also denied that she wants to sell out the property in question after getting it vacated from the respondent.
4 The respondent has filed rejoinder to the reply filed by the petitioner wherein he has denied the averments of the petitioner and reiterated the contents of his application for leave to defend.
5 I have heard the arguments from counsel Sh. V. K. Bajaj for the petitioner and counsel Sh. H. S. Dhawan for the respondent and perused the record. The first contention of the respondent is that petitioner is not the owner of the premises in question and that there exists no relationship of landlord and tenant between the parties as Raj Kumar, husband of the petitioner is the landlord and owner of the property in question. The counsel for respondent has drawn the attention of the Court to the Rent Agreement dated 25.10.2007 wherein Raj Kumar has been mentioned 7 as owner of the premises in question. But the counsel for the petitioner has argued that the same has been mentioned only due to typographical mistake and the same Raj Kumar has categorically stated before the Court in the civil suit for permanent injunction filed by the respondent against the husband of the petitioner that his wife Smt. Anamika is the owner of the suit property and the said fact was not disputed by the respondent at that time. Certified copy of the statement of petitioner's husband and respondent recorded in the said civil suit on 19.02.09 has been filed on record. Thus, it is evident that the respondent had the knowledge that petitioner is the owner of the premises in question. Moreover, the petitioner has filed along with the petition a copy of the Sale Deed in her favour in respect to the premises in question and the respondent has not denied/disputed the said Sale Deed which amounts to admission on his part that petitioner is the owner of the premises in question. Here it is pertinent to mention that on the one hand, the respondent has pleaded that the petitioner is neither the owner nor landlord of premises in 8 question but on the other hand, in para 11 of his application for leave to defend, he has pleaded that petitioner does not require the premises for her residence rather she wants to sell it after getting it vacated from the respondent. This is nothing but blowing hot and cold in the same breath. This clearly shows that the respondent is not sure of his defence. He has put up contradictory pleas which makes his defence vague and uncertain. If the petitioner is not the owner of the premises in question then how she can sell the same ! So no leave to defend could be granted to respondent on this contradictory stand. Regarding his contention that there exists no relationship of landlord and tenant between the parties, it will suffice to say that an owner is always a landlord though a landlord need not necessarily be always an owner. It hasl also been hled by Ho'ble Delhi High Court in Miss Jit Kaur (Jagjit Kaur) Vs. Mool Chand, 1982 (2) RCR (Rent) 7 that if a property is owned by a person but let out by a third person, then owner is also a landlord and entitled to eject tenant U/Sec.14(1)(e) of DRC Act. Thus, as the ownership of the 9 petitioner is evidently stands admitted by the respondent, so the contention regarding non-existence of relationship of landlord and tenant between the parties is without any force and hence rejected.
6 The next contention of the respondent is that the petition is not maintainable as it is filed for partial eviction. It is pertinent to mention here that it was not clarified by the respondent in his application for leave to defend as to how the petition was filed for partial eviction. However, in the rejoinder he has stated that in the petition the petitioner has mentioned the tenanted premises consisting of one room and one kitchen only whereas there is one latrine and bathroom also. However, this contention of respondent does not have any force because in para 8 of the petition, the petitioner has mentioned the tenanted portion as specifically shown in red colour in the site plan attached with the petition and in the said site plan the bathroom and latrine along with the kitchen and room have been clearly shown and therefore it could not be said that the present 10 petition has been filed for partial eviction. 7 The next contention of the respondent is that the petitioner is the owner of many properties including the property bearing no. 30/3222, Beadon Pura, Karol Bagh, New Delhi. His contention regarding petitioner being owner of many properties is rejected as he has not furnished any details of the said properties and it appears that the same has been mentioned by him just for the sake of raising objection. Regarding the property bearing no. 30/3222, Beadon Pura, Karol Bagh, New Delhi, the petitioner has categorically stated that the said property belongs to her parents-in-law and has also filed the copies of Partition Deed and Relinquishment Deed with respect to the said property, executed by brother of father-in-law of the petitioner in favour of her father-in-law. The respondent has made a bald allegation without filing any material on record that petitioner is the owner of the property bearing no. 30/3222. It is settled law that leave to defend could not be granted on the basis of bald assertion of the respondent without any 11 material to substantiate the same. It is held by Hon. High Court of Delhi in Rajinder Kumar Sharma & Ors. Vs. Leelawati & Ors, 155 (2008) DLT 383, "Leave to defend not to be granted to tenant on the basis of false affidavit, averments and assertions - Only those averments in affidavit are to be considered by Rent Controller which have some substance in it and are supported by some material."
Here the respondent has baldly asserted the ownership of petitioner over the property bearing no. 30/3222, Beadon Pura, Karol Bagh, New Delhi, without placing any material on record to show that ownership of this property vests in petitioner whereas the petitioner has placed on record the title documents of the said property in favour of her father- in-law. Thus, this contention of the respondent also gets belied.
128 During the arguments the counsel for respondent had vehemently argued that the premises in question were let out in the year 2007 and the petitioner has failed to disclose that how in such a small span of time the bonafide requirement has arisen. Though the said contention is beyond pleadings yet it has been submitted by the counsel for petitioner that the accommodation, where presently petitioner is residing with her family members, is very small accommodation and the petitioner and her family members are adjusting themselves with great difficulty in one small room only and with the passage of time her children are growing up and thus she bonafidely needs the premises in question. I find force in the contention of the counsel for petitioner as the requirement of accommodation gets increased with the growing age of children and the change of circumstances. It is also held by Hon. High Court of Delhi in D. Rani Puri Vs. Chanan Lal, 1997 (1) RCR 383 that bonafide need appears like ever-changing quick sand which increases with births, marriages of sons, growing ages of young members, migrations etc. It is also held by 13 Hon. High Court of Delhi in Parveen Sarin Vs. Manbir Singh & Ors,, 20 (1981) DLT 61 that separate bed room for self and wife, sons and daughters and guests is a valid immediate requirement. Moreover, it is also settled law that a tenant could not dictate the landlord/owner to adjust himself without getting him evicted. It is held in Sarla Ahuja Vs. United India Insurance Company Ltd. (1998) 8 SCC 119, "It is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord, it is quite unnecessary to make endeavor as to how else the landlord could have adjusted himself."
It is held in Mahendra Trivedi Vs. Jai Parkash Verma, 157 (2009) DLT 690, "Neither the Court nor the tenant can dictate to landlord mode and manner in which he should live or to prescribe him residential standard on their own - In judging his special needs and convenience, certainly landlord would have a choice - Each member of family requires at 14 least comfortable space to sleep."
9 Thus, if the petitioner, due to scarcity of space in the present accommodation and growing age of her children, wants to shift to her own property, the tenant/respondent could not dictate/ask her to adjust herself there only without getting him evicted from the premises in question. So, it is evident from the above said discussions that the respondent has failed to raise any triable issue. The petitioner, on the other hand, has successfully established that she is the owner of the premises in question and she has bonafide requirement to shift to her own property i.e property in question. Since the respondent has failed to disclose any facts which would disentitle the petitioner from obtaining an order for recovery of possession of the premises in question, so the application for leave to defend of the respondent is dismissed and eviction order is passed in favour of petitioner and against the respondent with respect to one room, one kitchen, latrine and bathroom part of the property bearing no. 45-C, Category-C, Group-2, 3rd 15 Floor, Shivaji Enclave Extension, New Delhi as shown in red colour in the site plan now exhibited as Ex. C-1. However, in view of Sec.14(7) of DRC Act, this order shall not be executable before the expiry of period of six months.
10 File be consigned to Record Room.
(ANNOUNCED IN THE OPEN COURT (NAVITA KUMARI) ON 8th September, 2009) ADDL.RENT CONTROLLER( WEST) DELHI 16 E-250/09/09 08.09.09 Present:- None.
Vide separate order the application for leave to defend of the respondent is dismissed and eviction order is passed in favour of petitioner and against the respondent with respect to one room, one kitchen, latrine and bathroom part of the property bearing no. 45-C, Category-C, Group-2, 3rd Floor, Shivaji Enclave Extension, New Delhi as shown in red colour in the site plan now exhibited as Ex. C-1. However, in view of Sec.14(7) of DRC Act, this order shall not be executable before the expiry of period of six months. File be consigned to Record Room.
(Navita Kumari) ARC/Delhi(West) 08.09.09