Delhi District Court
Smt. Ravi Kanta Madhok vs Shri Bal Kishan Khanna on 27 July, 2013
IN THE COURT OF MS CHARU AGGARWAL, CCJ/ARC (WEST),
DELHI
E-235/11
Smt. Ravi Kanta Madhok
Widow of Late Shri Rajinder Lal Madhok,
R/O House No. 11/4, West Patel Nagar,
New Delhi-110008 .....Petitioner
Versus
Shri Bal Kishan Khanna
S/O Late Shri Panna Lal Khanna,
Proprietor
M/S Quality General Stores,
Shop No. 1, 11/4, West Patel Nagar,
New Delhi-110008 .....Respondent
Date of insitution: 08/07/2008
Date of decision: 27/07/2013
JUDGMENT
1. The petitioner is an 81 years old lady and she is a widow. She has filed this petition u/s 14 (1) (e) and 14 D of Delhi Rent Control Act, 1958 seeking eviction of the respondent on the ground of her bonafide need from the suit shop bearing private No. 1 measuring 9' x 14.3' situate on the front side on the ground floor of property No. 11/4, West Patel Nagar, New Delhi-110003. On 08th July 2008, the petitioner gave up her right u/s 14 D and restricted her prayer for eviction only u/s 14 (1) (e).
2. As per the case of the petitioner she is the owner and landlady of suit property bearing No. 11/4, West Patel Nagar, New Delhi which she got in partition as per order of the Hon'ble Delhi High Court passed on 17 th May 1992 in suit No. 2327/1992. The suit property has two floors i.e. the ground and the first floor. The entire ground floor is in possession of the tenants including the respondent. The first floor is in occupation of the petitioner and her family members comprising of her son, daughter in law 1 and a grandson. It is stated by the petitioner that she along with her dependent family members is residing on the first floor consisting of two bed rooms, drawing cum dining room, latrine, bathroom, kitchen and open space shown in red in the site plan annexed with the eviction petition. She has further stated that her son is unemployed and is a LIC agent, he require the suit shop for running his own office. Her grandson is of 21 years of age and he also requires a good space to run his own business. The daughter in law of the petitioner also requires some space for her commercial use as she also wants to run her own business. As per the petitioner all her dependent family members require the suit shop and other space for their bonafide use for themselves and even she requires the suit shop for her bonafide use as she has grown very old and remain ailing because of which her living on the first floor is highly inconvenient and is causing acute hardship. It is also stated that the married granddaughter of the petitioner along with her husband and even her other relatives living in Delhi often visit her and she find short of accommodation to accommodate them. The petitioner does not have any other suitable sufficient alternative accommodation to meet the bonafide requirement of herself and her family members. Hence, this petition has been filed for eviction of the respondent from the suit shop under the summary procedure.
3. The respondent in his leave to defend application had questioned the alleged bonafide need of the petitioner on the basis of facts disclosed therein. However, vide order dated 02nd December 2009 passed by my Ld predecessor, his leave to defend application was rejected and order for eviction in respect of the suit shop were passed, aggrieved wherefrom the respondent had invoked the revisional jurisdiction of the High Court by filing a revision petition being R C. REV 126/2011 u/s 25 (B) (8) of DRC Act, which was allowed by the Hon'ble Delhi High Court vide its order dated 09th May 2011 and leave to defend to contest the eviction petition 2 was granted to the respondent and he was directed to file his written statement in the matter on 27th May 2011. The SLP being SLP (Civil) No. 15310/2011 filed by the petitioner against the afore mentioned order of the Hon'ble High Court was dismissed by the Hon'ble Supreme Court in limini vide its order dated 06th July 2011.
4. Thereafter, pursuant to the order of the Hon'ble Delhi High Court dated 9th May 2011 referred hereto above, the respondent has filed his written statement. In his written statement he has disputed the alleged bonafide need of the petitioner inter-alia on the ground that the petitioner has not approached the court with clean hands. Her son is a retired employee of a company. It is averred that even if it is assumed that he is a LIC agent, his job is to go door to door for making clients and no additional accommodation is required since the petitioner is already in possession of the entire first floor and the terrace above it built on a plot area of 200 sq. Yds. The daughter in law of the petitioner is stated to be a house wife and her grandson a student. It is alleged that the petitioner had earlier filed another petition u/s 14 D read with section 25 (B) against another tenant Shri Lakhpat Rai Sood which was dismissed by the court of Shri Inderjit Singh, then ARC, Delhi vide order dated 06th October 2003 in Eviction case No. E-245/99 and the civil revision No. 1117 of 2003 filed by the petitioner against the said order was also dismissed by the Hon'ble Delhi High Court vide its order dated 12.11.2003. The petitioner is stated to have filed eviction petition against another tenant Rajesh Wadhwa and in that case leave to defend is stated to have also been granted vide order dated 07th February 2011. It is further alleged that the present petition is without any cause of action as the petitioner has let out a vast portion measuring 155 sq. Yds. on the ground floor to another tenant two years ago before filing of the present case. According to the respondent, the petitioner has taken self contradictory pleas and has filed the present 3 petition with a malafide intention without there being any bonafide requirement of the suit shop by her or her family members. A prayer has been made for dismissal of the present petition with exemplary costs.
5. The petitioner has filed her replication to the above written statement of the respondent in which she has admitted having filed another eviction petition earlier against another tenant Shri Lakhpat Rai Sood under section 14 D read with section 25 (B) of DRC Act but she has explained that the said earlier petition was filed on the ground of using the shop in that case for residential purposes whereas in the present case the petitioner wants eviction of the respondent from the suit shop u/s 14 (1)
(e) for use of the same by her dependant family members for commercial purposes. The petitioner has also admitted having filed another eviction case against another tenant Rajesh Wadhwa and also the fact of leave to defend having been granted in that case. The petitioner has stated that not only her son is a LIC agent but her daughter in law and her grandson are also the LIC agents. She has denied that the job of the LIC agents is to go door to door for making clients. According to the petitioner it is essential for the LIC agents to have an office as many clients visit the office as and when they get time for handing over the premium to the LIC agents and to get the advice on the policies. The petitioner has reasserted her plea that the shop in question is required by her for the commercial use of the same by her dependents as they have no other alternative commercial accommodation available in Delhi.
6. After filing of replication, the respondent filed an application u/o 6 rule 17 C.P.C. for amendment of his written statement. The said amendment application was allowed by my Ld predecessor vide order dated 19.03.2012 and pursuant thereto the amended written statement was filed by the respondent on 31.03.2012. Amendment was made in para 1 of the preliminary objections and para 18 (v) of the written 4 statement originally filed. The amendment that was made pertain to the fact of filing of a civil suit for possession and damages against the legal heirs of tenant Late Lakhpat Rai Sood in respect of shop No.2 (Suit No. 514/07) and then withdrawal of the said suit and this amendment was done to show that the petitioner was habitual in filing cases against all the tenants on different grounds.
7. The petitioner has filed additional replication to the amended written statement of the respondent and has clarified that the fact of filing a civil suit for possession and damages against the legal heirs of tenant Lakhpat Rai Sood and then withdrawal of the said suit introduced by the respondent by way of amendment in the amended written statement was not necessary for the adjudication of the real question in controversy between the parties in the present case. The petitioner has stated that she had to withdraw the said suit as it was not maintainable.
8. The petitioner has filed total six affidavits in her evidence in chief out of which one affidavit is of Smt Leela Singh, a tenant inducted in the rear portion on the ground floor in 2003. As she has not been produced for her cross examination, her affidavit shall not be read or acted upon for deciding the present case. The other five affidavits filed by the petitioner in her evidence in chief are of petitioner herself, her son Shri Vishan Kumar Madhok, daughter in law Smt. Vijay Laxmi Madhok, grandson Shri Vivek Madhok and the Architect Shri Suresh Kumar saini, who had prepared the site plan Ex PW 5/1 and Ex PW 5/2. These witnesses who have filed their affidavits have been cross examined as PWs 1, 2, 4, 5 and 3 respectively. The respondent has filed his own affidavit in his chief and has been cross examined as RW-1. The affidavits filed by the witnesses in their chief examination are more or less in line with the pleadings of the parties on record and their statements in the cross examination in so far as they may 5 be relevant shall be referred hereinafter while returning the findings on the relevant points that arise for consideration in the present case.
9. I have heard the final arguments of the Ld Counsels for the parties and have also gone through the entire case file with utmost care.
10. The ld. Counsel appearing on behalf of the petitioner has argued that it stand proved from the statement of the witnesses examined on behalf of the petitioner that the petitioner need the suit shop for commercial purposes for use by her dependent family members for opening an office in connection with their LIC agency business. The Ld Counsel has further argued that it has also been proved that the petitioner has no other suitable alternative accommodation to provide it to her dependents for their office. According to the ld Counsel there is nothing on record or in the statements of any of the witnesses to doubt the bonafide need of the petitioner for the suit shop and he has, therefore, made a submission for passing of an eviction order in respect of the suit shop against the respondent.
11. On the other hand, the Ld Counsel appearing on behalf of the respondent has argued that the alleged need of the suit shop projected by the petitioner in the present case is most malafide. It was contended that had the need of the petitioner for the suit shop been genuine, she would not have let the vast portion measuring 155 sq. Yds comprising of two big rooms, two small rooms, kitchen, latrine and bathroom in the rear portion on the ground floor after getting it vacated from earlier tenant to another tenant Smt. Leela Singh in 2003. It was argued that the suit property as per admission of all the witnesses, whether of the petitioner or of the respondent, is residential and penalty levied by L & D O for misuse of three rooms for commercial purpose in the front on the ground floor has been upheld by the Hon'ble Delhi Court and this was the position even in 6 2003 when a substantial portion on the ground floor that fell vacant was let out to Smt. Leela Singh. The Ld counsel had also argued that the petitioner, except producing the photocopies of licences purported to have been issued to the petitioner's son, her daughter in law and the grandson authorising them to do LIC agency business, has not produced any other reliable or admissible evidence to show that they in fact are into the business of LIC agency which require them to have an independent office for the business. According to the Ld Counsel, the LIC agents have to go door to door for procuring clients and they hardly need any office for the same. The Ld Counsel appearing on behalf of the respondent has also relied upon the findings of the court contained in the order dated 6 th October 2003 in the earlier eviction case No. E-245/99 titled Smt. Ravi Kanta Madhok Vs Lakhpat Rai Sood, in order to show that the need of the suit shop by the petitioner is not genuine. It was urged that the petition should be dismissed with exemplary costs.
12. For a landlord to succeed on the ground of bonafide need u/s 14 (1) (e), he has to prove the following essential conditions:
i. The relationship of landlord and tenant
between the parties.
ii. That he needs the suit premises for his
bonafide need for himself or his family
members dependant on him and
iii. That he does not have any other suitable
alternative accommodation to meet the
requirement projected in the eviction
petition.
13. In case any of the above condition is found missing, the petitioner is to be held not entitled to an eviction order u/s 14 (1) (e). In the present case as far as relationship of landlord and tenant between the parties is 7 concerned, there is no dispute between them on this point. The respondent does not deny the ownership of the petitioner in respect of the suit property, she having got the same in partition as per order of the Hon'ble Delhi High Court dated 17.07.1992 passed in suit No. 2327/1990 (Mark A). The respondent further does not dispute that the suit shop was let out to him by the petitioner's father in law long back and that presently he is paying rent in respect of the suit shop to the petitioner. This establishes the relationship of landlord and tenant between the parties.
14. Insofar as the other two conditions of section 14 (1) (e) mentioned hereinabove are concerned, the parties are seriously at issue on both of them. The case of the petitioner is that she need the suit shop for commercial purposes as her son, daughter in law and the grandson who all three are LIC agents wants to use it for their office of LIC agency. The petitioner has also made an attempt to make out a case for her own bonafide need stating in her affidavit filed by her in her evidence in chief that she being an old lady is suffering from various ailments and is finding it extremely inconvenient to live on the first floor and wants to shift on the ground floor, if suit shop is vacated by the respondent. PWs 2, 4 & 5 have filed similar affidavits in their respective examination in chief. They have stated in para 2 of their respective affidavits that they all three are working as LIC agents and have further stated in para 5 that they need the suit shop for their bonafide need to use it as their office as many clients visit the office as and when they get time for handing over the premium of LIC policies to the agents for depositing the same and getting receipts of the same and also to get advise on the policies. The respondent in their cross examination suggested them all that they are not LIC agents and that the licences exhibited in their affidavits are not the valid licences issued by the IRDA. Despite objection to the validity of licence taken by the respondent, the petitioner chose not to examine anybody from the office of IRDA to 8 prove the genuineness of the LIC licences allegedly held by the petitioner's son, her daughter in law and the grandson. Furthermore, no evidence has been produced by the petitioner to show the volume of year wise LIC business done by her son, daughter in law and the grandson or the frequency of visits by the clients to them. Rather PWs 1, 2, 4 & 5 have admitted in their respective cross examination that they have not filed the list of their clientele nor any record maintained by them as LIC agents. It may be noted that the respondent has specifically stated in para 7 of his affidavit that even if it is assumed that the petitioner's son. daughter in law and her grandson are LIC agents as claimed by them, their job is to go door to door for making clients and no additional accommodation is required since the petitioner is in possession of entire first floor and above of the suit property area above 200 sq. Yds on each floor. There is no cross examination of the respondent on this point from the side of the petitioner and this necessarily implies an admission on the part of the petitioner that the LIC agents do not need to maintain any office. Hence, the need of the suit shop projected by the petitioner for the office of her dependants cannot be said to be genuine.
15. It is not disputed by the petitioner that the rear portion on the ground floor which is a substantial built up area of about 155 sq. Yds. comprising of two big rooms, two small rooms, kitchen, latrine and a bath room was vacated by the earlier tenant Mr. Arora in 2003 and was re-let for residential purposes to Mrs. Leela Singh vide rent agreement dated 22.02.2003. If the plea of the petitioner that she is finding it difficult to live on the first floor because of her old age ailments is believed as true, then she could not have afforded to re-let the rear portion vacated by the earlier tenant in 2003 to another tenant and this re-letting of the rear portion on the ground floor in 2003 reflects upon her intention that she does not need any accommodation on the ground floor for her bonafide or genuine need.
9The petitioner has not given any justification much less plausible justification for re-letting the rear portion on the ground floor in 2003 despite observations in this regard of the Hon'ble Delhi High Court contained in its order dated 09th May 2011 in RC REV No. 126/2011 referred hereto above. It may also be relevant to mention here that the petitioner has admitted in her cross examination recorded as PW-1 in the connected case titled Ravi Kanta Madhok Vs Rajesh Wadhwa & Anr. that she has four rooms on the first floor but in the present case she denied the suggestion that she has four rooms on the first floor. The petitioner does not appear to be a reliable and a credible witness having regard to her contradictory evidence regarding the extent of accommodation available with her on the first floor in the two similar cases particularly in view of categorical findings of the court in the earlier case filed by the petitioner against another tenant Shri Lakhpat Rai Sood (eviction case No. E-245/99) dismissed vide order dated 06th October 2003, wherein it was held as under:
" Hence, I am of the view that the petitioner failed to prove that accommodation of 4 rooms, bath room, kitchen, toilet, open space and chajja on the first floor in her occupation is insufficient and that the additional room to be carved out from the premises/shop is her bonafide requirement, particularly when there was occasion to have rear portion of ground floor available to her to occupy. The petitioner failed to prove her bonafide need/requirement. The petition is dismissed."
16. The afore-mentioned order dated 06th October 2003 has attained finality inasmuch as the Civil Revision petition being No. 1117/2003 stood dismissed by the Hon'ble Delhi High Court vide its order dated 12.11.2003.
17. The family of the petitioner comprises of herself, her son, daughter in law and a grandson. In fact the petitioner's son, her daughter in law and 10 the grandson is to be treated as one family unit. In the opinion of this court, four room accommodation in possession of the petitioner on the first floor is quite sufficient to meet her requirement and her projected need for the suit shop by no means can be said to be bonafide within the meaning of section 14 (1) (e).
18. For the foregoing reasons, I do not find any merit in the present petition which fails and is hereby dismissed but with no order as to costs. File be consigned to the record room.
Announced in open Court (Charu Aggarwal)
27th July 2013 CCJ/ARC (West)
Delhi
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