Delhi District Court
Smt. Tara Wati vs Shri Bhagwan Singh on 1 September, 2011
IN THE COURT OF SH. ANIL KUMAR SISODIA, SENIOR CIVIL
JUDGECUMRENT CONTROLLER (NORTH EAST DISTRICT) :
KARKARDOOMA COURTS : DELHI.
EVICTION PETITION NO. E53 of 2011
(UNIQUE CASE ID NO. 02402C0143312011)
SMT. TARA WATI
W/O LATE SHRI RAM AZOR,
R/O H.NO. 1/3625, RAM NAGAR,
KRISHNA GALI, SHAHDARA,
DELHI110032. ............ PETITIONER
VERSUS
SHRI BHAGWAN SINGH
S/O SHRI YOGRAJ SINGH
ROOP/ SHOP IN PROPERTY NO. 1/3625,
GROUND FLOOR, RAM NAGAR,
KRISHNA GALI, SHAHDARA,
DELHI110032. .......... RESPONDENT
U/s 14D r/w Section 25B DRC Act
Date of institution : 11.05.2011
Order reserved on : 23.08.2011
Date of order : 01.09.2011
O R D E R :
1. Vide this order, I shall dispose of an application filed by the E53/11 Page 1/14 respondent for leave to defend in the eviction petition filed by the petitioner against him.
2. The facts of the case, as stated in the eviction petition, are that the petitioner is a widow, illiterate and unemployed lady. Her husband namely Late Shri Ram Azor expired on 31.12.2010 and she is an exclusive owner and landlady of the rented/ suit property bearing no.1/3625 (measuring 120 sq. yds.), Ram Nagar, Krishna Gali, Shahdara, Delhi110032. In the said premises, one room was letout by her husband to the respondent at a monthly rent of Rs.175/ in the year 1975 for residential purposes only but the respondent has changed the use of the rented premises and he is running a tea shop in the tenanted premises for the last more than six years. No rent agreement was executed between the parties. It has been submitted that when the suit property was letout to the respondent, the petitioner was having only her husband Late Shri Ram Azor and two sons namely S/Sh. Shiv Prasad and Ram Gopal and the existing accommodation was sufficient for their residence at that time but now the petitioner is having her son namely Sh. Shiv Prasad, his wife Smt. Sheela and their two children namely Amit and Nisha alongwith her another son Sh. Ram Gopal, his wife Smt. Geeta and their two children namely E53/11 Page 2/14 Priya and Rishabh. The petitioner is having another third son Sh. Ravinder, his wife Smt. Sarita and their two children namely Nanu and Subham. All the children are school going. At present, the petitioner is having 13 family members and only four rooms are available for her and her entire family members and the petitioner is presently living in open space/ baramda. The petitioner and her family members are not having any other property except the abovesaid property where she is presently residing with her family members. The petitioner requires the tenanted premises for her own bonafide requirement for residential purposes and the petitioner is no more interested to keep the respondent as tenant in the suit property. It has further been submitted that the husband of the petitioner had filed the eviction petition u/S. 14(1)(c) and (e) of the DRC Act against the respondent titled as Ram Azor Vs. Bhagwan Singh vide petition no. E249/09 in the Court of Sh. Parveen Singh, the then Ld. ARC (NE), Karkardooma Courts, Delhi but after the death of her husband, the petitioner herein had withdrawn the abovesaid petition on 01.04.2011. A prayer has been made for passing eviction order in respect of the tenanted room/ shop.
3. Respondent was served with summons of the eviction petition and he has applied for leave to defend within the period of E53/11 Page 3/14 limitation.
4. In the application for leave to defend, defendant has submitted that the present petition is not maintainable as the shop in question was letout to the respondent for commercial purposes only and since the inception of tenancy, the respondent is using the same for commercial activities in the name and style of M/s. Kaptaan Sweet House which was registered in the year 1986 vide registration no. 7A/1619/II under Delhi Shops and Establishment Act, 1954. The petitioner is not the exclusive owner and landlady of the premises in question. It has been submitted that earlier the husband of the petitioner filed an eviction petition u/S. 14(1)(c) and (e) r/w Sec. 25B of DRC Act. During the pendency, Sh. Ram Azor died on 31.12.2010 and an application for impleading legal heirs was moved on behalf of Smt. Tara Wati, Shiv Prasad, Ram Gopal and Ravinder which was allowed by the court of Sh. Ravinder Singh, the then Ld. ARC on 01.04.2011. The petition is not supported by a duly attested affidavit as required under law. The shop is not required bonafidely by the petitioner for her own residence. The present petition does not cover the ingredients of Section 14D r/w Sec. 25B of the DRC Act. The petitioner has stated false facts in the petition that she has only E53/11 Page 4/14 four rooms for her family comprising of thirteen members and the sons of the petitioner are independent and are residing with their families separately having separate kitchen and are not dependent upon the petitioner in any manner. The petitioner is also running a shop adjacent to the shop under the occupation of the respondent. The shop under the possession of the respondent is not required bonafidely by the petitioner for her residential purposes. Sh. Ram Gopal, son of the petitioner owned a residential house in Village Bahata. In August 2009 one room was letout for residential purposes to Sh. Binde Lal and his brother by the husband of the petitioner and he had vacated the room in January 2011. There are certain other grounds also with the respondent to get leave to defend the suit and there are also triable issues which can only be decided by leading evidence.
5. The plaintiff has filed reply to the application for leave to defend raising preliminary objections that the application of the respondent is based on totally false allegations and hence the application for leave to defend is not maintainable and is liable to be dismissed with exemplary costs; the respondent has not approached the court with clean hands and he has concealed the material and true facts from this Court.
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In the reply to grounds for leave to contest the petition, it has been submitted that the respondent has changed the use of the tenanted premises from residential to commercial and running a tea shop in the rented room without the consent, permission and information of the petitioner. He has got the shop/ room registered under the Delhi Shops and Establishment Act, 1954 without the No Objection of the petitioner and without the consent and permission of the petitioner. It has been submitted by the petitioner that after the death of her husband on 31.12.2010, the petitioner is the absolute owner and landlady of the entire premises including the tenanted premises/ suit premises. It has further been submitted that the petition of the petitioner is duly supported by a duly attested affidavit as required under law. It has been specifically denied that the son of the petitioner namely Sh. Ram Gopal is having residential house in Village Bahata and the allegation has been levelled without any documentary proof, basis and jurisdiction and she has prayed for dismissal of the application filed by the respondent.
6. I have heard Ld. Counsel for the petitioner as well as Ld. Counsel for the respondent and have perused the record carefully.
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7. In order to become entitle to the relief of eviction u/s 14D DRC Act, the petitioner has to establish the following ingredients:
(i) That the petitioner is a widow;
(ii) that there is relationship of landlord and tenant between the parties;
(iii) that the premises have been let out by the petitioner or by her husband;
(iv) that the petitioner requires the premises in question for her residence.
i) The petitioner is a widow :
8. Petitioner in para 18(a)(1) has stated that she is a widow and her husband namely Sh. Ram Azor expired on 31.12.2010. She has also filed photocopy of death certificate of her husband. The respondent in his application for leave to defend has not disputed this fact. Hence, this ingredient stands satisfied.
(ii) that there is relationship of landlord and tenant between the parties :
9. The petitioner has stated in her petition that respondent is her tenant in respect of one room which was lateron converted into E53/11 Page 7/14 a shop by the respondent. It has also been stated that the tenanted premises was let out to the respondent by her husband Late Sh. Ram Azor in the year 1975.
10.The respondent in his application for leave to defend has not disputed the relationship of landlord and tenant between the parties but he has stated that the tenanted premises was let out to the respondent for commercial purposes since inception of the tenancy. Hence, this ingredient also stands satisfied.
(iii) that the premises have been let out by the petitioner or by her husband :
11. The petitioner has stated in the eviction petition that the tenanted premises was let out to the respondent by her husband Late Sh. Ram Azor in the year 1975. The respondent has not disputed this fact also. Hence, this ingredient also stands satisfied.
(iv) that the petitioner requires the premises in question for her residence :
12.The petitioner has claimed in her eviction petition that the tenanted premises was required by her for her residence as with the passage of time, number of her family members have E53/11 Page 8/14 increased. Her three sons have got married and are having two children each who are of school going age. There are 13 members in the family of the petitioner and only four rooms are available and at present, the petitioner is living in open space / varandah. It has also been stated that petitioner and her family members are not having any other property in Delhi and the petitioner requires the premises bonafide for her residence.
13. In his application for leave to defend, the respondent has submitted that petitioner is not the exclusive owner of the suit property and it has also been stated that the tenanted premises was let out for commercial purposes since its inception.
14. It may be mentioned at the outset that for petition U/s 14D of DRC Act, the purpose of letting is entirely immaterial. So far as the defence raised by the respondent that petitioner is not exclusive owner of the property is concerned, law does not require that petitioner should be exclusive and absolute owner of the tenanted premises. Even a coowner can file a petition for eviction against the tenant. In Sheela & Ors. Vs. Prahlad Rai Prem Prakash, AIR 2002 SC 1264, it was held that in a landlord tenant dispute, the owner is one who has better rights then that of the tenant and it is not incumbent upon the E53/11 Page 9/14 petitioner to prove beyond shadow of doubt that he is the owner of the property. The meaning of the word 'owner' visavis tenant is that ownership is something more than a tenant. The respondent has not stated as to who else is a owner if the petitioner is not the owner of the tenanted premises. Hence, the bald denial of the ownership of the petitioner by the respondent is without any merits. Even otherwise, Section 116 of Indian Evidence Act estops the tenant of immovable property from denying the title of his landlord so long as he remains in possession. Hence, the defence raised by the respondent is rejected being without any merits.
15.The respondent has also taken the plea that the husband of the petitioner has earlier filed an eviction petition U/s 14(1)(c) and
(e) of DRC Act and after his death, the said petition was withdrawn by the petitioner and other LRs. It has also been submitted that the petitioner for her own residence bonafide. Counsel for the respondent has also argued that Sh. Ram Gopal, son of the petitioner is having a residential house in Vill. Bahata and it was argued that in August 2009, one room was let out to Sh. Binde Lal and his brother by husband of the petitioner and the same was got vacated in January 2011. E53/11 Page 10/14
16.Counsel for the petitioner on the other hand has argued that the respondent has not disputed the extent of the property available with the petitioner and there is also no denial with respect to the number of family members of the petitioner. It has been argued that all the sons of the petitioner are dependent on her for the purposes of residence. It has been argued that there are only four rooms in the property owned by the petitioner which are insufficient for her needs.
17. Perusal of the record shows that the respondent has not denied the extent of accommodation available with the petitioner nor he has filed any site plan disputing the site plan filed by the petitioner. Hence, the accommodation shown in the site plan filed by the petitioner has to be accepted as correct. The site plan filed by the petitioner shows that there are three rooms in the property which are available with the petitioner and the fourth room/shop is the tenanted premises. Apart from this, there is no other accommodation available with the petitioner.
18.The respondent has claimed that son of the petitioner namely Ram Gopal is having a house in Village Bahata. However, any accommodation available with the landlord or his family member outside Delhi cannot be considered to be a suitable accommodation when the petitioner and her family members E53/11 Page 11/14 are residing in Delhi itself. The respondent has not pointed out to any accommodation available to the petitioner within the limits of Delhi. Hence, the contention of the petitioner that she is not having any other accommodation except the present property has to be accepted as correct.
19. The respondent has also not seriously disputed the number of family members of the petitioner. His only claim is that sons of the petitioner are independent and are residing with their families separately and are not dependent upon the petitioner. However, this plea of the respondent is again a very vague plea. The respondent has not even bothered to specify if the sons of the petitioner are living separately from her independent properties and if so, the details of accommodation available with them have not been mentioned. The petitioner is only required to show that her children are dependent on her for residential accommodation for the purposes of residence. In S.K. Gupta & Anr. Vs. R.C. Jain, AIR 1984 Delhi 187, it was held that the expression "dependent" includes a person who is dependent on the landlord for residential accommodation.
20.Perusal of the record also shows that the respondent has admitted that all the sons of the petitioner are married and are E53/11 Page 12/14 living with their families. The petitioner is having three sons and each married son requires at least one room for his accommodation. This leaves no room/accommodation for the residence of the petitioner. Hence, the requirement of the tenanted premises by the petitioner for her own residence cannot be termed as malafide. Merely because, the earlier petition filed by husband of the petitioner was withdrawn after his death, in inference can be drawn that the requirements of the petitioner ceased to be bonafide.
21. Thus, after assessing the rival contentions of the parties, I am of the considered opinion that respondent has failed to raise any triable issues or to disclose such material facts as would disentitle the landlord from getting eviction orders. Hence, in view of the aforesaid discussion, the application filed by the respondent seeking permission for leave to defend the eviction petition is dismissed being devoid of merits.
22.Accordingly, an eviction order is passed against the respondent and in favour of petitioner U/s 14D of DRC Act, in respect of shop/room situated at ground floor in the property bearing no.1/3625 (measuring 120 sq. yds.), Ram Nagar, Krishna Gali, Shahdara, Delhi110032 more specifically shown in red colour in site plan Mark A annexed with the petition. Further, the E53/11 Page 13/14 petitioner shall not execute the eviction order before expiry of period of two months form the date of passing of this order.
23.The petition for eviction u/s 14D r/w Section 25B of DRC Act is accordingly disposed of. No orders as to cost.
File be consigned to Record Room.
Announced in the open Court Dated : 1st September, 2011 (ANIL KUMAR SISODIA) SCJCUMRC (NE) KARKARDOOMA COURTS DELHI.
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