Delhi District Court
Sh. Om Prakash Mishra vs Sh. Ashok Kumar on 27 November, 2012
IN THE COURT OF SH. SONU AGNIHOTRI,
ADDL. RENT CONTROLLER, DISTRICT: NORTH, DELHI.
E No. 25/2012
Unique Case ID No: 02401C0070402012
1. SH. OM PRAKASH MISHRA
S/o Late Sh. Rama Prashad
2. SH. LAVLEEN MISHRA
3. SH. NAVNEET MISHRA
4. SH. AVNEET MISHRA
5. SH. DIGVIJAY MISHRA
All sons of Sh. Om Prakash Mishra,
All R/o. H. No. B-1353,
Shastri Nagar, Delhi-110052. ...Petitioners
Versus
1. SH. ASHOK KUMAR
S/o. Late Sh. Fateh Singh,
2. SMT. RANI @ PRAKASHI
W/o. Sh. Ashok Kumar
3. SH. CHANDAN
S/o. Sh. Ashok Kumar
All Residents of :
H. No.1345, Shastri Nagar,
Delhi-52. ... Respondents.
OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 1/31
ORDER
27/11/2012 Vide this order, I shall dispose of leave to defend application filed on behalf of respondents U/sec. 25-B (4) & (5) of the Delhi Rent Control Act, 1958 (herein after referred to as D.R.C. Act, 1958).
Relevant facts for disposal of the present application are as follows:-
1. In the petition, it is stated that the petitioners are co-owners/ landlords and respondents are tenants in respect of property bearing Shop No.3, B-1353, Shastri Nagar, Delhi-52 as shown in red colour in the Site Plan attached with the petition (herein after referred to as 'suit property').
2. It is stated that initially Late Smt. Angoori Devi was owner/landlady of suit property who expired on 01.12.2010 leaving behind petitioners as her legal heirs who have now become owner /landlords of suit property. It is stated that Late Sh. Fateh Singh, father of respondent no.1 was tenant with respect to suit property under Late Smt. Angoori Devi. It is stated that Sh. Fateh Singh expired, leaving behind respondents as his legal heirs. It is stated that respondents became tenants of suit property by operation of law thereafter.
OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 2/31
3. It is stated that suit property was let out to respondents for running a shop. It is stated that suit property is required bonafidely by petitioners for their occupation as residence. It is stated that petitioners have no other reasonable suitable residential accommodation in their possession except the house in question. It is stated that portion of premises in occupation of petitioners has been shown in green colour in site plan attached with the petition. It is stated that with regard to shop no.4, eviction order was passed by court of Sh. D.K. Sharma, then then Ld. ARC in Eviction Petition no.32/2009 vide order dt. 09.06.2011 in case titled as " Smt. Angoori Devi (Now deceased) Sh.
Om Prakash Mishra and Ors Vs. Smt. Savida Devi and Ors". It is stated that shop no.4 is shown in yellow colour in the site plan attached with the petition. It is stated that petitioners are yet to receive possession of the same as revision petition is still pending before Hon'ble High Court of Delhi against Eviction order passed in above mentioned petition.
4. It is stated that petitioners no.2 to 5 are all married persons. It is stated that petitioner no.2 has two sons and one daughter besides his wife. It is stated that petitioner no.3 has one son and one daughter besides his wife. It is stated that petitioner no.4 is having two sons and wife. It is stated that petitioner no.5 has one son, one daughter and wife. It is stated that petitioner no.1 is more than 75 years of age and is OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 3/31 suffering from various physical ailments like blood pressure, arthritis, heart ailments, joint pain etc. It is stated that petitioner no.1 has been medically advised not to take oily and fatty foods and can take only boiled food and vegetables. It is stated that medically, petitioner no.1 has been advised not to climb up and down the stairs and to take complete bed rest. It is stated that recently daughter of petitioner no.2 was married on 19.11.2011 and that after the marriage, wedding couple and other near relatives frequently visited and stayed with the petitioners but that there was no separate guest room for the newly wedded couple and other guests.
5. It is stated that petitioners no. 4 & 5 are residing on the ground floor alongwith their families in House in question. It is stated that there are only four rooms, two kitchens, latrine bath and garage on the ground floor of house in question. It is stated that both petitioners no.4 & 5 are residing separately/independently. It is stated that accommodation on the ground floor is not sufficient to meet residential requirements of petitioners. It is stated that there is no study room for school going children nor there is any dinning room on the ground floor of house in question. It is stated that petitioner no.1 is residing with petitioner no.2 & 3 on the first floor. It is stated that petitioner no.1 is residing in room Mark "A" as shown in the site plan and prepares his food with help of his daughters in law in kitchen Marked "B" as shown in the site plan. It is stated that petitioner no.1 has to go to doctor OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 4/31 frequently and has been advised not to climb stair case.
6. It is stated that petitioners require suit property bonafidely for their residence as well as for residence of their family members who are completely dependent upon them for their residence. It is stated that accommodation in possession of petitioner is quite insufficient. It is stated that school going children of petitioners are suffering in their studies on account of paucity of sufficient accommodation. It is stated that petitioner no.1 has to sleep in kitchen or in the open space in the winters in case in any guest visit their place.
7. It is stated that petitioners do not have any drawing room,dinning room, guests room and worship room.
8. It is stated that accommodation available with petitioners no.1 to 3 on the first floor comprises of 6 rooms,3 kitchens, store, latrine and bath and that this accommodation is quite insufficient to meet residential requirements of petitioners no.1 to 3. It is stated that petitioners no. 2 & 3 have five children in toto alongwith their respective wives. It is stated that total accommodation available with the petitioners on the ground floor and first floor comprises of 10 rooms only alongwith 5 kitchens, one store, one garage and latrine and bath room as shown in green colour in the site plan attached whereas there are total 18 members in the family of petitioners. It is OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 5/31 stated that petitioners require suit property bonafidely and urgently for themselves and for residence of their family members dependent upon them. It is stated that most of minor children of petitioners no.2 to 5 are school going and there is no separate room for their studies.
9. It is stated that accommodation in possession of petitioners is insufficient to meet residential requirements of petitioners and their family members and that petitioners require atleast 15 living rooms. It is stated that petitioner No.1 wants to live on the ground floor and suit property is very suitable for him. It is stated that petitioners and their family members have every right to live in accordance with their status. It is stated that even if petitioners receive vacant possession of adjoining shop regarding which eviction order has already been passed by Sh. D.K. Sharma, the then Ld. ARC during pendency of present petition, residential requirement of petitioners will not be complete and that petitioners require more residential accommodation.
10. It is stated that Late Smt. Angoori Devi filed one eviction petition bearing No. 112/2005 on the ground of sub-letting against respondents which was dismissed by the then Ld. ARC vide order dt. 23/04/2009. It is stated that petitioners filed appeal against the said order but that the same was dismissed as withdrawn on 21/10/2011 as petitioner No. 1 accepted all the respondents as tenants in respect of suit property. It is stated that respondents also deposited rent in name of petitioners OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 6/31 vide DR petitions and that petitioner No.1 accepted respondents as his tenants and also accepted the rent.
11. Petitioners have prayed for passing eviction order with regard to suit property against respondents alongwith cost of the petition.
12. Upon the service of summons, leave to defend application was filed on behalf of the respondents alongwith supporting affidavit of respondent no.1.
13. Respondent No.1 in his affidavit deposed that he is husband of respondent No.2 and father of respondent No.3 and has filed accompanying application on behalf of all the respondents.
14. It is deposed that petitioners have failed to disclose available accommodation with them. It is deposed that there is no requirement of petitioners and that earlier attempts to dispossess predecessor in the interest of respondents being failed, present petition has been filed with oblique motives. It is stated that Eviction petition filed by Smt. Angoori Devi against father of respondent no.1 on the ground of sub- letting was dismissed by court of Sh. Tarun Kumar Sehrawat, the then Ld. ARC and that appeal against the said judgment was also dismissed.
OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 7/31
15. It is deposed that petitioners filed eviction petition against tenants in the adjacent shop and that eviction order against the tenants in petition No.32/2009 has already been passed in favour of petitioners vide order dt. 09/06/2011. It is deposed that there is no requirement of the petitioners with regard to the adjacent shop as they needed the said shop for wife of petitioner No. 1 who was claimed to have been suffering from various ailments.
16. It is deposed that petitioners have malafidely did not disclose that the said accommodation is also available with them and that they can easily get the same vacated from the said tenants Smt. Savida Devi & Ors as the period of six months to vacate the said premises is already over. It is deposed that petitioners have intentionally not initiated execution proceedings against tenants of adjoining shop though the said tenants are keeping the said shop unoccupied. It is deposed that the said tenants have not been granted any stay and that petitioners are wrongly trying to show that possession of the said shop is not with the petitioners. It is deposed that the adjacent shop is exactly similar as that of suit property. It is deposed that apart from this, petitioners are having sufficient and more than reasonable accommodation in their possession which is being kept locked and unoccupied.
17. It is deposed that petitioners have not filed correct site plan with OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 8/31 the petition and are trying to show the shops in their possession to be a store and a garage. It is deposed that petitioners had earlier filed eviction petition through their predecessor in interest and in that eviction petition, they filed site plan and portion immediately on the rear side of shop of respondents has been shown as shops. It is deposed that copy of site plan is annexed as annexure A1. It is deposed that Smt. Angoori Devi had filed Eviction petition against adjacent tenant Smt. Savida Devi and there also she filed site plan just behind suit property showing the same as shops and copy of the said site plan is annexed as A2.
18. It is deposed that respondent No.1 has got prepared correct site plan of suit property which is annexure A-3. It is deposed that in the ground floor plan, room no.1 & 2 are lying vacant and unused at the moment by petitioners as they already have enough accommodation and not require more accommodation. It is deposed that room no.2 was earlier being used by petitioner No.4 as shop but that now they have kept the same unused and unoccupied and have wrongly claimed that it is only a store. It is deposed that room No.2 is almost of the size of suit property and can easily meet additional requirement if any if it really exists. It is deposed that petitioner No.1 has wrongly claimed himself to be residing in Room Marked "A" and using mark "B" as Kitchen.
OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 9/31
19. It is deposed that petitioners no.2 to 5 are all independent and are not dependent upon petitioner no.1. It is deposed that petitioner no.1 has falsely stated that he is living at first floor. It is deposed that petitioner no.1 is living on the ground floor portion and is in possession of bed room number 9 as shown in Annexure A-3. It is deposed that petitioner no.1 is residing with petitioner No.4 and his family on the ground floor. It is deposed that except suit property and adjacent shops bearing Nos. 4,5 and 6, the entire possession of ground floor is with petitioner No.1. It is deposed that room No.8 is being used as Bed Room by petitioner No.4 and that Room No.7 & 10 are available to petitioner No.1 & 3 who are using the same as extra bed room and drawing cum dinning room. It is deposed that besides this, accommodation of room No.1 & 2 is also available with petitioner which have been claimed to be only store and garage. It is deposed that petitioners are trying to create self created paucity of accommodation.
20. It is deposed that petitioner No.1 and his wife have otherwise been re-letting various portion at higher rent. It is deposed that they got vacant possession of shops No.5 & 6 from the tenants but have re- let the same to new occupants about three/four years back. It is deposed that had Smt. Angoori Devi or petitioners were in need of premises, they would not have re-letted shops No.5 & 6. It is deposed that petitioners have also got vacant possession of shop No.2 and that OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 10/31 the same is being kept locked and unused. It is deposed that in case of any requirement, the same can always be used. It is deposed that room No.1 is also available with the petitioner and they have falsely claimed the same to be only a garage. It is deposed that there is enough space available by the side of property in question which is a three side open property and that there is no dearth of parking space and that petitioners conduct is malafide in claiming that room No.1 is being reserved for garage only.
21. It is deposed that petitioner No.1 is not occupying any portion of room No.10 marked as Mark "A". It is deposed that petitioner No.1 is living with his son i.e petitioner no.3 on the ground floor. It is deposed that the same facts become clear as petitioner No.1 has his ration card with his son Avneet Mishra, the copy of which is Annexure P-4. It is deposed that petitioner No.2,3 and 5 are living on the first floor of the premises and having more than enough accommodation available with them. It is deposed that each of these brothers have their independent kitchen. It is deposed that petitioner No.2 is occupying room No.4 as his bed room, petitioner No.3 is in occupation of room No.3 and petitioner No.5 is in occupation of Room No.7 as his bed room. It is deposed that besides this, there are three big drawing rooms i.e room No.1,2 & 5 which are being used by petitioners no.2,3 & 5 and their families.
OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 11/31
22. It is deposed that petitioners do not have any locus standi to file present petition. It is deposed that Smt. Angoori Devi had been realizing the rent but that she was not the owner of suit property and as such petitioners do not have any locus standi to file present petition.
23. It is deposed that only motive of petitioners is to sell off shops No.1 & 2 alongwith Shops No.3 & 4 for fetching handsome amount. It is deposed that petitioners in order to achieve this objective have not taken any steps to get shop No. 4 vacated against which an eviction order has already been passed. It is deposed that possession of shop no.4 is not being taken by petitioners on the pretext that revision petition has been filed before Hon'ble High Court of Delhi whereas there is no stay in the said revision petition. It is deposed that petitioner No.1 is wrongly claiming that he is suffering from various ailments whereas the fact is that he is hale and hearty and is already been residing at ground floor. It is deposed that even the grand daughter of petitioner No.1 has been married recently and as such they have now additional accommodation with themselves. It is denied that petitioners are only having 10 rooms, 5 kitchens and 1 garage and that actual accommodation in possession of petitioners is much more.
24. It is deposed that petitioners have in their use and occupation six rooms on the ground floor and seven rooms on the first floor. It is deposed that thus petitioners have 13 rooms which are more than OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 12/31 sufficient for their accommodation. It is deposed that suit property is only a small room having approach from front only and is not premises fit for being used as residence. It is deposed that respondents are always ready and willing to enhance the rent and even at the rate of market rent.
25. It has been prayed to grant leave to contest eviction petition filed by petitioners.
26. Reply was filed by petitioners to application of respondents for leave to defend alongwith affidavit of petitioner no. 1. Certain preliminary objections have been taken by petitioners in the reply. It is stated that affidavit of respondent no. 1 is bundle of lies and filed to mislead the Court. It is stated that no legal triable issue has been raised by respondents and the grounds mentioned in the application as well as in the affidavit of respondent no. 1 are without having any substance. It is stated that there is no verification in support of the application and hence, application is legally not maintainable in law.
27. In affidavit filed by petitioner no. 1 , it is deposed that petitioners in the petition filed by them have mentioned accommodation available with them. It is deposed that requirement of petitioners of suit property is genuine and most urgent. It is deposed that petitioners have every right to live more comfortably in accordance with their status. It is OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 13/31 denied that Late Smt. Angoori Devi tried to dispossess respondents from suit property by hook or crook during her lifetime. Filing of petition on the ground of subletting has not been denied. Dismissal of that petition has also been admitted as well as appeal arising from the same being dismissed is also not denied. It is deposed that petitioners withdrew appeal by accepting respondents as their tenants in the suit property by making a statement before Ld. RCT, Delhi in presence of respondent no. 1. It is deposed that respondents also admitted themselves to be the tenants of petitioners by filing DR petitions and petitioner no. 1 accepted the rent without prejudice to his rights and contentions.
28. Filing of eviction petition with regard to adjacent shop under tenancy of Smt. Savida Devi & Ors. is not denied. It has also been admitted that the said petition was dismissed. It has been admitted that eviction order in E No. 32/2009 vide order dt. 09/06/2011 has been passed. It is deposed that petitioners till date have not got vacant possession of the shop on the ground that Revision petition is pending before Hon'ble High Court of Delhi. It is deposed that petitioners clearly mentioned in the petition that even if they received vacant possession of adjoining shop, residential requirement of petitioners and their family members do not get fulfilled. It is deposed that portion in possession of petitioners is not sufficient to meet residential requirements of them and their family members dependent upon them.
OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 14/31 It is deposed that petitioners have filed true and correct site plan of entire premises in question showing factual position and portion under possession of petitioners. It is deposed that similar site plan was filed by petitioners in E No. 32/2009 and that copy of order of eviction and site plan filed in E No. 32/2009 is annexed with the reply.
29. It is denied that room no. 2 was earlier being used as shop by petitioner no. 4. It is deposed that petitioner no. 4 is in Govt. Service for the last more than 20 years and that in his life he has not run any shop in premises in question. It is deposed that room no. 1 is a garage used by petitioners for parking their vehicles and room no.2 is being used by petitioners as store room. It is deposed that room no. 1 and 2 are being utilized in the manner stated above for since last for more than 14 years. It is deposed that respondents do not have any right to dictate terms to petitioner to live in store or garage.
30. It is deposed that requirement of petitioner no. 1 in respect of suit property situated on ground floor is most genuine and urgent. It is deposed that petitioner no. 1 is a old man 74 years of age suffering from various kinds of ailments and has to visit Doctor frequently. It is deposed that he has been medically advised not to climb staircase. It has been denied that petitioners no. 2 to 5 are not dependent upon petitioner no. 1 for their residential requirements. It is denied that petitioner no. 1 is in possession of bedroom no. 9 as shown in site plan OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 15/31 filed by respondents. It is deposed that petitioner no. 1 is living on first floor in the premises in question in room Mark 'A' and is using kitchen Mark 'B'. It has been denied that petitioner no. 1 is living with petitioner no. 4 and is also sharing kitchen with him. It is deposed that petitioners no. 4 and 5 are residing on the ground floor with their respective families and that there are only four living rooms, two kitchens, latrine and bath available on the ground floor in house in question. It is deposed that accommodation available on the ground floor is not sufficient for requirements of petitioners. It has been denied that room no. 7 and 10 as mentioned by respondents is available with petitioners no. 1 and 3 and that they are using the same as extra bedroom and drawing-cum-dinning room. It has been denied that room no. 1 and 2 is surplus accommodation available with petitioners. It is deposed that petitioners and family members of petitioners are having insufficient residential accommodation available with them. It is deposed that there is no guest room, study room for school going children, worship room and dinning room. It is deposed that total accommodation available with the petitioners in house in question is 10 rooms, five kitchens, one store, one garage and latrine and bathroom as shown in green colour in the site plan attached with the petition whereas total number of family members of petitioners is 18. It is deposed that petitioners require atleast 15 living rooms. It is deposed that married daughter of petitioner no. 2 alongwith her husband and other relatives frequently visits and stays with the petitioners but there is no separate OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 16/31 room for newly wedded couple and other relatives/guests. It is deposed that school going children are also suffering in their studies on account of paucity of accommodation. It is deposed that garage as shown in the site plan is being used for parking Maruti Car bearing no. DL 9B- 9074. It has been denied that petitioner no. 1 and his wife got vacant possession from tenants of shop no. 5 and 6 and reletted the same to new occupants about 3-4 years back. It is deposed that two shops adjacent to suit property mentioned as shop no. 5 and 6 are not in possession of petitioners and that both these shops have been sold by petitioner no. 1 in 1995 on account of financial difficulties. It is deposed that petitioner no. 1 and his wife Late Smt. Angoori Devi was operated for Cataract and were also suffering from various ailments in the year 1995 and were in dire need of money and so sold shop no. 5 and 6 in order to meet their requirements. It is deposed that respondent no. 1 is well aware of this fact and has intentionally filed false affidavit in this regard before the Court. It is deposed that neither petitioners nor their predecessor in interest rented out shops no. 5 and
6. It is deposed that infact petitioners have nothing to do with shops no. 5 and 6.
31. It is deposed that respondents do not have any right to challenge title of petitioners and that respondents themselves admitted them to be tenants under petitioners by filing DR petitions. It is deposed that after death of Smt. Angoori Devi, all the petitioners have OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 17/31 become owner of suit property by operation of law. It has been denied that petitioners are having 06 rooms in their use and occupation on the ground floor and 07 rooms on the first floor. It has been denied that petitioners have surplus accommodation in their possession. It has been denied that suit property is not fit for residence of petitioners. It is deposed that suit property is very suitable to the petitioners for their residence. It is deposed that respondent no. 1 is in service and his son is also doing service and so it does not suit respondent no. 1 to state that suit property is the only source of income of respondents. It is deposed that petitioners can not imagine even in their dreams to re- let or sell suit property after getting the same vacated from respondents.
32. It has been prayed to reject application of respondents with heavy cost and for passing order of eviction in respect of suit property.
33. Rejoinder to the reply filed by petitioner to leave to defend application was filed by respondents alongwith counter affidavit of respondent no.1. In the rejoinder, various preliminary objections have been taken. It is stated that petitioners after filing of present petition have got vacant possession of adjoining shop which was under
tenancy of Smt. Savida Devi vide final order dt. 25/05/2012 in execution bearing No.27/2012 in respect of eviction petition bearing No. E-32/2009. It is stated that petitioner No. 1 has renovated the said OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 18/31 room but that the same is lying vacant and unused as petitioners do not have any requirement of the same. It is stated that in case after filing of present petition, petitioners have already got vacant possession of adjacent shop and requirement if any of petitioners stand fulfilled. It is stated that even otherwise wife of petitioner No.1 has expired and one grand daughters of petitioner No.1 has been recently married and thus petitioners have surplus accommodation available with them and do not require suit property. It is stated that shops No. 5 and 6 as per site plan filed by respondents have been wrongly claimed to have been sold by petitioners.
34. In reply on merits in the affidavit, it is deposed that despite having filed copy of ration card of petitioner No.1 by petitioners themselves, petitioner No.1 dares to say that he is not residing with petitioner No.4. It is deposed that petitioners are looking forward for a good buyer so as to sell off entire four shops bearing No.1 to 4 after getting suit property vacated. Respondents have reaffirmed averments made by them in leave to defend application and accompanying affidavit thereto.
35. I have heard arguments addressed by counsel for respondents and gone through written arguments/brief notes of arguments filed on behalf of both petitioners and respondents and perused the record.
OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 19/31
36. Ground is taken that site plan filed by petitioners is incorrect and that petitioners have shown shops in their possession to be a store and garage. It is stated that in site plan in an eviction petition filed by predecessor in interest of petitioners Late Smt. Angoori Devi against respondents, portion immediately on rear side of suit property has been shown as shop. Copy of the said site plan has been filed by respondents as Annexure A1. It is stated that Smt. Angoori Devi filed another eviction petition against adjoining shop tenant Smt. Savida Devi and there also, in site plan filed by her, rear portion of suit property has been shown as shops. Copy of the said site plan has been filed by respondents as Annexure A2. Respondents have themselves filed site plan which has been annexed as Annexure A3. Perusal of site plans annexure A1, A2,A3 and site plan filed by petitioners show that so far rear portion of suit property is concerned, only the purpose for which two rooms behind suit property were/are being used have been shown differently but otherwise location wise, there is no difference between all these site plans so far as rear portion of suit property is concerned. In Annexure A1, the rear two rooms of suit property have been shown to be shops. In annexure A2, the position is same. In Annexure A3, rooms (Shown with No.1 & 2) have been shown to be room cum shop whereas in site plan filed by petitioners, immediately adjacent room behind suit property has been mentioned to be store and room immediately behind it has been shown to be a garage by petitioners. The difference between all these OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 20/31 site plans is difference of usage of two rooms on the rear side of suit property. It is further contended that site plan filed by petitioners is not correct as petitioner No.1 is not occupying room marked as "A" in the site plan filed by petitioners. To my mind, when respondents have not disputed dimensions of the rooms shown in site plan filed by petitioners nor they have disputed number of rooms in the property in which suit property is located as is visible on comparison of Annexure A3 i.e site plan filed by respondents and site plans filed by petitioners, the different version of usage of different rooms can not be stated to be presentation of incorrect facts by petitioners and it can not be said that site plans filed by petitioners are not correct. I am of the opinion that no triable issue on this count is made out.
37. Ground is taken that sufficient accommodation is available with petitioners. It is stated that petitioners can not create scarcity of accommodation by self created paucity by not using room no. 1 and 2 which are available with the petitioners since long. It is stated that petitioners got vacant possession of shop no. 5 and 6 but the same was relet to new occupants about 3-4 years back. It is stated that had petitioners or their predecessor in interest Late Smt. Angoori Devi was in need of additional accommodation, they/she would not have reletted or rented out shops number 5 and 6. It is stated that petitioners have also got vacant possession of shop no. 2 from the tenant who had vacated the same and the same is in exclusive possession of the OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 21/31 petitioners but the same is lying locked and unused. It is stated that in case of any requirement, petitioners can always use the same which has been wrongly claimed by them to be a store. It is stated that petitioners have mis-stated that room no. 1 is being used as garage. It is stated that there is enough space available by the side of property in question which is a three side open property and that there is no dearth of parking space and conduct of petitioners is reprehensible in showing room no. 1 to be a garage only. It is stated that petitioners are having surplus accommodation i.e. Room no. 1, 2 and 4 are not being used or occupied by petitioners. It is stated that petitioner no. 1 is wrongly claiming that he is suffering from various ailments whereas fact of the matter is that he is hale and hearty. It is stated that even otherwise after filing of earlier petition bearing no. 32/2009 in which an eviction order has already been passed, requirement of petitioners has gone down as wife of petitioner no. 1 has already expired and one of the grand daughter of petitioner no. 1 has been recently married. It is stated that petitioners are having six rooms on the ground floor and seven rooms on the first floor totalling to 13 rooms which is more than requirement of petitioners. Petitioners on the other hand have denied that they have surplus accommodation. Petitioners in the petition filed by them have stated that they are having only ten rooms in their possession whereas there are 18 members in the family of petitioners. Petitioners in their written arguments have admitted that after filing of present petition, they have received vacant possession of shop no. 4.
OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 22/31 It is stated by petitioners in petition filed by them that petitioners no. 2 to 5 are all married persons. It is stated that petitioner no. 2 is having two sons and one daughter besides his wife. It is stated that petitioner no. 3 has one son and daughter alongwith spouse. It is stated that petitioner no. 4 has two sons and wife. It is stated that petitioner no.5 is having one son and one daughter alongwith his wife. It is stated that school going children in the families of petitioners are suffering in their studies on account of insufficient accommodation. It is stated that petitioners are not having any drawing room, dinning room, guest room and worship room. Petitioners in the reply to leave to defend application have stated that room no. 1 is being used as a garage by petitioners for parking their vehicles and room no. 2 is being used as a store rooms since long. It is stated that petitioner no. 1 is an old and ailing person 74 years of age and is suffering from various kinds of ailments. It is stated that petitioner no. 1 has been medically advised not to climb stairs. It is stated that petitioners no. 2 to 5 are solely dependent upon petitioner no. 1 for their residential requirements. It is stated that petitioner no. 1 is living on the first floor in room Mark 'A' and is using kitchen Mark 'B' as shown in the site plan filed by petitioners. It is admitted that daughter of petitioner no. 2 has been recently married but it is submitted that whenever married daughter of petitioner no. 2 visits petitioners alongwith her husband and other relatives, they have to nudge the edges with other family members as there is no separate room for newly wedded couple and other relatives OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 23/31 and guests. It is stated that shop no. 5 and 6 are not in possession of petitioners and that infact they have nothing to do with the alleged shops. It is stated that both the shops have been sold out by petitioner no. 1 in the year 1995 on behalf of his wife on account of financial difficulties as petitioner no. 1 and his wife late Smt. Angoori Devi were operated for Cataract. After going through pleadings of the parties and arguments addressed, I am of the opinion that it can not be said that petitioners are having surplus accommodation in their possession. Number of family members of petitioners are not disputed by respondents. Amongst family members of petitioners there are 09 children (one daughter of petitioner no. 2 if excluded after being married, the number comes down to 08). It has not been disputed that these children are not school going. It has been admitted by petitioners in written arguments that they have received vacant possession of Shop No.4 in execution of Eviction Petition No.32/2009. Petitioners have relied upon judgment of Hon'ble High Court of Delhi in case titled as " Ram Lal (D) thru' LRs. Vs. Bharat Singh,1992 RLR 317" in which Hon'ble High Court of Delhi laid down that an owner is entitled to seek eviction for comfortable living. If eviction order some portions fall vacant and are occupied by owner and his still needs space for large family then eviction of tenant may be upheld. Considering the fact that total number of members in family of petitioners are admittedly 17 ( after marriage of daughter of petitioner No.2 ), 11 number of rooms ( one room added after getting possession OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 24/31 of room No.4 as a result of eviction order in petition number 32/2009) are insufficient considering need for living room, bed rooms, Puja Room and study rooms for children. Even if for the sake of arguments, number of rooms as available on date with the petitioners is considered to be 13 as per respondents, number of rooms required for comfortable living are still less in view of requirements of petitioners as mentioned above. Petitioners have further relied from judgments in cases of (i) Silvertoe Mfg. Co. Vs. Usha Sai 1995 RLR 24.
(ii) Raj Kumar Gambhir Vs Kanwar Sain Jain 2003 (1) RCR 558.
(iii) Ashwani Kumar and Others Vs. Pradeep Kumar and Others 2005(1) RCR 634.
(iv) Mohan Lal Aggarwal Vs Atinder Mohan Khosla 2006 (1) RCR 220.
(v) Sudesh Kumari Soni & Anr Vs. Prabha Khanna & Anr 153 (2008) DLT 652.
(vi) Mohinder Kaur Vs. Balwinder Kumar 2009 (2) RCR
650.
(vii) Viran Wali Vs. Kuldeep Rai Kochhar 2010 (2) RCR
571.
(viii) Labhu Lal Vs Sandhya Gupta 173 (2010) DLT 318.
(ix) Harsh Kumar & Ors. Vs. Man Mohan & Ors. 188 (2012) DLT 536.
In all these cases, various propositions have been laid OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 25/31 down which are to remain as a guiding factor while deciding leave to defend application. It has been held that Court can not dictate to landlord as to how he should live or prescribe a standard of their own. It has been further held that landlord is best judge of his needs. The tenant does not have much say in decision of landlord. It has been held that the fact that to sisters of landlord got married would not reduce size of family. When sisters visit their parents alongwith their husbands and their children, the need for accommodation gets increased. It has been held that petitioner is in possession of six rooms and there are 12 family members in the disputed property living- each member of the family of petitioner requires one room- such a large number family can not be accommodated in 6 rooms. It has been held that contention of tenant that landlady did not prove diseases - contention repelled - old age is itself a disease. It has been held that mere bald submission that landlord is in occupation of 6 rooms without anything else to substantiate this submission does not and can not in any manner raise a triable issue. Unless and until triable issue arises, leave to defend should not be granted in a routine or mechanical manner.
Respondents on the other hand has relied upon judgment in case of "Amarjeet Singh Vs. Smt. Khatoon Quamarain 1987(1) RCR 192" in which Hon'ble Supreme Court of India held that ground floor falling vacant during pendency of proceedings- subsequent change either in fact or in law must be taken cognizance of. If the OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 26/31 landlady or landlord could have reasonable accommodation after his or her need arose and she by her own conduct disentitled herself to that property by letting it out for higher income, she would be disentitled to evict her tenant on the ground of her need. Rent Act provides a habitat for landlady and not comforts other than habitat.
Law laid down by Hon'ble Supreme Court of India in Amarjeet Singh's case (Supra) does not apply in the facts and circumstances of present case as I have already observed that there are 17 members in family of petitioners and petitioners even after getting Room No.4 after eviction order in petition bearing number 32/2009 are having 11 rooms/13 rooms - as per respondents in their possession and seeing needs of petitioners i.e requirement of study rooms for school going children, guest rooms for guests to stay, Puja room, living rooms and drawing and dinning rooms, petitioners still fall short of rooms required for reasonable living.
Respondents have further relied upon judgments in cases of :
i) S.C. Bansal & Anr. Vs Dr. Subhash Kashyap 1990 (19) DRJ
259.
ii) Satish Khosla Vs. Eli Lilly Ranbaxy Ltd. 1998 RLR 180.
iii) Shiv Swaroop Gupta Vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222.
iv) Vinod Ahuja Vs. Anil Bajaj & Anr. ( in R.C. REV. 543/2011)
v) Inderjeet Kaur Vs. Nirpal Singh (2001) 1 SCC 706. Judgments relied upon by respondents are not applicable in the OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 27/31 circumstances of present case. Respondents have themselves stated that petitioners are not having in possession Room No.5 & 6 on account of they being let out to new occupants 3-4 years ago. Petitioners have stated that they have nothing to do with room No.5 & 6 as they have sold off the same in year 1995. Respondents have relied upon judgment of eviction with regard to room No.4 i.e adjoining the suit property in E. No. 32/2009. Petitioners have filed copy of the same on record. In order of eviction in E. No. 32/2009, tenants therein have taken the ground that petitioners have sold two rooms/shops adjacent to suit shop. Petitioners have admitted in that eviction petition to sale of those shops in the year 1995. The room number concerned in E. No. 32/2009 is room No.4 and adjoining rooms/shops are Shop No. 5 & 6. From order in E. No. 32/2009, stand of petitioners is fortified that they have sold room No. 5 & 6 in the year 1995.
In view of law relied upon by petitioners, I am of the opinion that no surplus accommodation is available with petitioners and that even after getting possession of Room No.4, the accommodation available with petitioners is insufficient. Four full fledged families of petitioner no. 2 to 5 are residing in property in question. Petitioner No.2 to 5 is each having atleast two children. Seeing from this point of view, 8 bed rooms minimum are required for petitioner no.2 to 5. One bed room is required for petitioner No.1. As per respondents themselves, petitioners No. 2 to 5 are having independent status. One drawing and dinning room is required for family of each petitioner. If petitioners OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 28/31 wishes to have one Puja room, the requirement can not be said to be absurd. Two guest rooms atleast are required for five families. Thus minimum requirement of petitioners comes out to be 16 rooms atleast. In case petitioners are having possession of 13 rooms if one goes by version of respondents, even then number of rooms with the petitioners are still less. If we add two study rooms for the purpose of school going children of petitioners, then the number required by petitioners swell to 18. Leaving aside fact of ailments of petitioner No. 1, requirements of petitioners is still greater. Petitioners can not be deprived of facility of parking as allegedly being done by them in room no. 2. Leverage can not be given to respondents so as to dictate petitioners to use a particular room for a particular purpose. Contention of respondents that property where suit property is located is a three side open property and so petitioners have ample space to park their vehicles anywhere and at any side does not appeal to logic and settled law and if petitioners are using room no. 2 as garage, its use as garage can not be questioned. So far as uses of room no. 1 as store is concerned, the same analogy applies to this room also and petitioners can not be dictated not to use this room as store. Further for four full fleged families i.e. Petitioners no. 2 to 5, having one room as store is a reasonable usage of the room. It can not be said that petitioners are having sufficient/surplus accommodation and to my mind, no triable issue in this regard is made out.
OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 29/31
38. Ground is taken that intention of petitioners is to get the suit property vacated and to relet or sell the same. It is pertinent to note that tenant is protected U/sec. 19 of DRC Act and this ground appears to have been taken just for creating another ground. No triable issue to my mind is made out in this regard.
39. Ground is taken that petitioners are not the owner of suit property. It has been stated by respondents in affidavit of respondent no. 1 appended with leave to defend application that Smt. Angoori Devi i.e. Predecessor in interest of petitioners had been realizing the rent but that she was not the owner of the suit property and petitioners have no locus standi to file present petition. It has not been disclosed by respondents that in case Smt. Angoori Devi was not owner of the suit property then who was owner of suit property. It is well settled that in case tenant alleges that petitioner/landlord is not owner of the suit property then he is obliged to disclose as to who is the owner of the suit property. In leave to defend application, respondents have repeatedly referred to earlier attempts by Smt. Angoori Devi to kick them out of suit property by filing eviction petition. Further respondents have stated that intention of petitioners is to get vacated suit property and either to relet or sell out the same. Both the stands appear to be contradictory. In case petitioners are not owners /landlords of suit property, how one can think that they will be selling or reletting suit property after getting the same vacated. Further non disclosure of OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 30/31 name of real owner of suit property makes a dent in stand taken by respondents. It appears that this ground has been taken by respondents just for stating another ground. No triable issue in this regard is made out.
40. In view of my discussion made in various preceding paras, I am of the opinion that petitioners have been able to show that they being landlords/owners of suit property require the same bonafidely. Therefore, application of respondents for leave to defend is dismissed as being without merits. An eviction order is passed U/s 14 (1) (e) of the D.R.C. Act in favour of petitioners and against the respondents in respect of property bearing Shop No.3, B-1353, Shastri Nagar, Delhi-52 as shown in red colour in the Site Plan Ex. P-1 (as put by the court itself today) attached with the petition. However, this order shall not be executable before the expiry of six months from the date of this order as provided U/sec. 14 (7) of D.R.C. Act.
Fie be consigned to Record Room.
Announced in open court on 27th November, 2012. (SONU AGNIHOTRI) A.R.C.(North)/Delhi.
OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 31/31 E no. 25/2012 OM PRAKASH MISHRA VS. ASHOK KUMAR 27/11/2012 Present: Petitioner no. 1 in person with counsel Sh. S. K. Bhardwaj.
Respondent no. 1 in person.
Vide separate order of even date announced in the open court, application filed on behalf of respondents U/sec. 25-B (4) & (5) of the Delhi Rent Control Act is dismissed and petition filed by petitioners U/Sec. 14 (1)(e) of the D.R.C. Act is allowed.
In consequence thereof, an eviction order is passed U/s 14 (1) (e) of the D.R.C. Act in favour of the petitioners and against all the respondents in respect of property bearing Shop No.3, B-1353, Shastri Nagar, Delhi-52 as shown in red colour in the Site Plan Ex. P-1 (as put by the court itself today) attached with the petition. However, this order shall not be executable before the expiry of six months from the date of this order as provided U/sec. 14 (7) of D.R.C. Act.
Fie be consigned to Record Room.
Sonu Agnihotri A.R.C.(North)/Delhi. 27.11.2012 OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 32/31 OM PRAKASH MISHRA & ors. VS. ASHOK KUMAR & ors. 33/31