Delhi District Court
Mrs. Sudesh Sibal vs Smt. Sanotsh on 5 October, 2009
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IN THE COURT OF MS. NAVITA KUMARI: ADDL. RENT CONTROLLER: WEST
DELHI
E-226/09/06
Mrs. Sudesh Sibal
W/o Mr. B. Sibal,
R/o 1683, New Housing Board Colony,
Panipat Haryana. .....Petitioner
Versus
1. Smt. Sanotsh
W/o late Sh. M. L. Phutela @ Mukand Lal Phutela
2. Sh. Ashok Kumar,
3. Sh. Anil Kumar,
Both S/o late Sh. M. L. Phutela @ Mukand Lal Phutela.
4. Smt. Alka Handa,
5. Smt. Shephali Grover,
6. Smt. Seema Midha,
All of three D/o late Sh. M. L. Phutela @ Mukand Lal Phutela
All R/o A-2/192-B MIG Flats, Paschim Vihar,
New Delhi. .....Respondents
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Eviction Petition U/Sec.14(1)(e) of Delhi Rent Control Act, 1958 Ex-parte Judgment:-
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 respondents on 18.11.06. The brief facts as narrated in the petition are that the petitioner is the landlady and owner of the tenanted premises consisting of drawing, dinning, two bedrooms, kitchen, two latrine bath in the flat bearing no. A-
2/192, B at first floor, MIG Flats, Paschim Vihar, New Delhi and these premises were let out to Sh. M. L. Phutela vide Rent Agreement dated 03.01.1997. The petitioner had earlier filed an eviction petition U/Sec.14(1)(e) r.w.sec.25-B of DRC Act in November, 1995. During the pendency of the said eviction petition, the tenant M. L. Phutela died and his LRs were brought on record. The said eviction petition was dismissed on 02.11.2002 by the Court of Sh. V. K. Bansal, the then Ld. ARC, Delhi. Now the petitioner has 3 filed the fresh eviction petition U/Sec.14(1)(e) of DRC Act on the fresh grounds due to changed circumstances. She was working as Lecturer/teacher in S. D. College Panipat, Haryana at the time of filing of previous eviction petition but now she is got retired and wants to shift to her own house in Delhi. Her husband is 75 yeas old person who is very sick and has lost complete eye sight of his right eye and is undergoing treatment in All India Institute of Medical Sciences (AIIMS), Delhi. Both the petitioner as well as her husband are old and senior citizens who continuously require medical aid/care. It is inconvenient for them to visit AIIMS from Panipat. All her relatives including her son are residing in Delhi and petitioner and her husband are facing great loneliness at Panipat in their old age. Their daughter- in-law is a doctor and it would be convenient for the petitioner and her husband to seek medical aid and advice from her, if they shift to Delhi in the premises in question. 2 After filing of the eviction petition summons as per proforma given in Schedule III of DRC Act were issued and served 4 upon the respondents who after service filed application for seeking leave to defend. When the matter was fixed for arguments on leave to defend application, the counsel for petitioner on 21.08.07 gave his no objection for allowing the application of the respondents for leave to defend and hence the said application was allowed and respondents were granted the leave to contest the present eviction petition.
3 After grant of leave to contest, joint Written Statement was filed by all the six respondents wherein they have submitted that the present eviction petition is not maintainable as it is hit by the provisions of Section 10 and 11 of CPC because the previous eviction petition U/Sec.14(1)(e) of DRC Act was dismissed by the Court of Sh. V. K. Bansal, the then Ld. ARC on the ground that petitioner had failed to prove the bonafide necessity. It has been further submitted that the petitioner has concealed the fact that she alongwith her husband, is the rightful owner of the property situated at Panipat as well as property at Delhi, where her son is living. 5 They have denied the petitioner to be legal owner of the premises in question, though it has been admitted that originally the premises were let out to Sh. M. L. Phutela whose LRs are all the six respondents. It has been further denied that the petitioner is got retired from her service or that petitioner or the husband of the petitioner is undergoing treatment at AIIMS hospital or that the petitioner and her husband are facing loneliness and require the premises in question for bonafide requirement.
4 In petitioner's evidence, petitioner has examined herself as one and only witness. Though the respondents had appeared till 12.08.08 but thereafter they stopped appearing before the Court and were finally proceeded against ex-parte vide order dated 13.08.09. 5 I have heard the ex-parte final arguments on behalf of petitioner and perused the record.
6 To prove the case U/Sec.14(1)(e) of DRC Act, the petitioner 6 is required to prove the following ingredients:-
(i) that the petitioner is the owner/landlady of the premises in question;
(ii) that the petitioner bonafidely requires the premises for herself and her family members;
and
(iii) that the petitioner does not have any other reasonable suitable accommodation with her. 7 Though previously apart from these three ingredients the landlord was also required to prove that the premises were let out for residential purpose only, but the said distinction of letting purpose has been done away with after the judgment of Hon. Apex Court in the case titled as Satyawati Sharma (Dead) by LRs Vs. Union of India & Ors., III 2008 SLT 553. In this case the Hon. Apex Court has struck down the unconstitutional part of Sec.14(1)(e) of DRC Act pertaining to letting purpose and requirement for residential purpose. Now let us examine if the petitioner 7 has been able to prove the above said three ingredients of Sec. 14 (1)(e) of DRC Act.
That the petitioner is the owner/landlady of the premises in question 8 The petitioner/PW1 has deposed that previously also she had filed an eviction petition bearing no. 200/95 under Sec.14(1)(e) of DRC Act which was dismissed by the Court of Sh. V. K. Bansal, the then Ld. ARC vide judgment dated 02.11.2002 which is Ex.PW1/1. In the said judgment the Hon. Court has categorically held the petitioner to be owner and landlord of the premises in question. Since the said judgment has not been challanged by any of the parties, so the said decision is final and hence, it stands established that the petitioner is the owner and landlord of the premises in dispute.
That the petitioner bonafidely requires the premises for herself and her family members 8 9 The respondents have taken the objection in their WS that the present eviction petition is barred by res-judicata U/Sec.10 and 11 of CPC as the previous petition of the petitioner was dismissed vide judgment dated 02.11.2002. But it is settled law that the second petition on the ground of bonafide requirement is not barred by res-judicata if there is change in circumstances at the time of filing of the second petition. It has been held by Hon. High Court of Delhi in Krishan Kumar Vs. Vimla Sehgal, 1976 RCR (Rent) 249, "Sec.14(1)(e) DRC Act - Res-judicata -
Landlord's petition on bonafide requirement failed - He can file second application on same ground when circumstances change." It has also been held by Hon. Supreme Court in Suraj Mal Vs. Radhey Shyam, AIR 1988 SC 1345, "Sec.12(1)(f) M.P. Accommodation Control Act - Suit for eviction from premises let out for commercial purposes - Ground for bonafide need
- Dismissal - Second suit is competent.
9 Where a suit for eviction from premises comprising of shop on ground of bonafide need was dismissed, second suit on the same ground would be competent. The bonafide need must be considered with reference to the time when a suit for eviction is filed and it could not be assumed that once the question of necessity is decided against the landlord it has to be assumed that he will not have a bonafide and genuine necessity ever in future."
10 Thus, it is evident from these case laws that the second petition for bonafide requirement is maintainable in case of changed circumstances. In the present case the previous eviction petition was dismissed vide judgment dated 02.11.02 on the ground that the petitioner was working as Lecturer at Panipat and it was not her case that she was going to retire in near future and then to shift to Delhi or that she was going to leave service and thus it was held that she was gainfully employed at Panipat and she was not having any bonafide requirement to shift to Delhi. But now the petitioner has proved by way of her unchallenged and uncontroverted testimony and vide Ex.PW1/2 that she has 10 got retired on 30.09.05 and thus she has established a case of change of circumstances. She has further deposed that her husband is 75 years old sick person who had met with an accident several years ago and remained in comma for about 15 days and now he has very weak memory and has lost complete eye sight of his right eye and his treatment is going on at AIIMS, Delhi which is almost 140 K.m. away from Panipat and they face a lot of inconvenience in visiting AIIMS at Delhi from Panipat. She has exhibited the medical record of her husband as Ex.PW1/7 (colly). She has further deposed that she is also 62 years old lady and both she and her husband, being old and senior citizens, need continuous medical aid and advice which they can conveniently get at Delhi from her daughter-in-law who is a doctor and residing in Mayur Vihar, New Delhi along with her husband and two sons. She has further deposed that all her relatives including her real sister Ms. Raj Kumari, her sister-in-law Ms. Swaraj, mami Subhadhra Gaddi, her son, daughter-in-law and grand sons are residing in and around Delhi and they have no relatives at Panipat and both the 11 petitioners and her husband are facing great loneliness at Panipat in their old age and want to shift to Delhi for getting the company of their relatives. Since the evidence of the petitioner has gone unchallenged and unrebutted, so I have no reason to disbelieve the testimony of the petitioner and thus it stands proved from her uncontroverted testimony that she has bonafide requirement to shift to her own property i.e. bearing no. A-192, B at first floor, MIG Flats, Paschim Vihar, New Delhi.
That the petitioner does not have any other reasonable suitable accommodation with her. 11 Petitioner has deposed that the house at Panipat belongs to her husband and now her husband wants to sell the same and shift to Delhi. The respondents have stated in their WS that the petitioner has concealed the fact that she and her husband are the joint owners of the house at Panipat. Though nothing has been placed on record in support of their contention, yet even if it is presumed that petitioner is 12 the co-owner of the house at Panipat, she could not be compelled to live at Panipat, if she otherwise has bonafide requirement to shift to Delhi. This Court is of considered opinion that shifting to one's own house in Delhi after retirement, could not be considered to be malafide only on the ground that she has another house at Panipat. I am fortified on this point by the judgment of Hon. High Court of Delhi in B. B. Gandhi Vs. Dharam Inder Mohan, 1987 (2) RCR (Rent) 358, "Sec.14(1)(e) DRC Act - Landlord serving and residing in Delhi - Landlord retired from service and wanted to reside in his own house in Delhi - Need bonafide - It could not be contended that landlord has also a house at Faridabad (near Delhi) and can live there." 12 Petitioner/PW1 has further deposed that she does not have any other suitable accommodation and that the flat at Mayur Vihar, where her son is residing with his family, does not belong to her. Since the evidence of the petitioner has gone unchallenged and uncontroverted, so it stands proved 13 that petitioner does not have any other reasonable suitable accommodation.
13 Thus, it is clear in the light of abovesaid that the petitioner has proved that she requires the tenanted premises bonafidely for her own residence and therefore, present petition is allowed and eviction order is passed in favour of the petitioner and against the respondents with respect to tenanted premises consisting of drawing, dinning, two bedrooms, kitchen, two latrine bath in the flat bearing no. A- 2/192, B at first floor, MIG Flats, Paschim Vihar, New Delhi. However, in view of Sec.14(7) of DRC Act, this order shall not be executable before the expiry of period of six months. 14 File be consigned to Record Room.
(ANNOUNCED IN THE OPEN COURT (NAVITA KUMARI) ON 5th October, 2009) ADDL.RENT CONTROLLER( WEST) DELHI 14 E-226/09/06 05.10.09 Present:- Petitioner in person.
Respondent ex-parte.
Vide separate ex-parte judgment the present petition is allowed and eviction order is passed in favour of petitioner and against the respondents with respect to tenanted premises consisting of drawing, dinning, two bedrooms, kitchen, two latrine bath in the flat bearing no. A-2/192, B at first floor, MIG Flats, Paschim Vihar, New Delhi. 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) 05.10.09