Delhi District Court
Mrs. Leela Ahuja vs Sh. Sarup Singh Ghai on 11 September, 2009
1
IN THE COURT OF MS. NAVITA KUMARI: ADDL. RENT CONTROLLER: WEST
DELHI
E-323/08/98
Mrs. Leela Ahuja
Wd/o late Sh. S. N. Ahuja,
R/o E-13/27, East Patel Nagar,
First Floor, Opp. Sidhartha Hotel,
New Delhi-8. .....Petitioner
Versus
1. Sh. Sarup Singh Ghai,
S/o Sh. Bhagwan Singh
Business Address:
C/o Ghai & Co. 25/32, East Patel,
Nagar, New Delhi.
Resi. Address:
25/29, East Patel Nagar
New Delhi-8.
2. Sh. Kunal Ahuja,
S/o late Sh. S. N. Ahuja
R/o E-185, Greater Kailash-II,
New Delhi-48.
3. Smt. Leena Dhir,
W/o Sh. R. S. Dheer
R/o E-13/27, East Patel Nagar,
New Delhi-8.
4. Smt. Sonia Malik,
W/o Sh. Monish Mallik
2
R/o B-5/151, Safdarjung Enclave,
New Delhi. .....Respondents
Eviction Petition U/Sec.14-D of Delhi Rent Control Act,1958
JUDGMENT:-
1 The present eviction petition U/Sec.14-D of Delhi Rent Control Act, 1958 (hereinafter referred to as DRC Act) was filed by the petitioner against the respondent on 12.12.1998. The brief facts as narrated in the petition are that the tenanted premises consisting of one garage room measuring 16'x10' in the property bearing no. E-13/27, East Patel Nagar, New Delhi-8 was let out to respondent no. 1 on 18.09.1988 by husband of the petitioner Sh. S. N. Ahuja. He had purchased the property bearing no. E-13/27, East Patel Nagar, New Delhi-8 vide Lease Deed dated 30.04.1966 and he died on 20.01.1995 leaving behind his wife i.e. the present petitioner, one married son Mr. Kunal Ahuja, one married daughter Mrs. Leena Dhir and another daughter Sonia Malik who was also got married some time prior to 3 filing of the eviction petition and they have jointly succeeded to the abovesaid property. This property is built up in an area of 200 sq. yards comprising of ground floor (consisting of two living rooms, kitchen, two stores, covered veranda being used as dinning place, temporary shed, bathroom, two W.C.), first floor (consisting of two bed rooms, one drawing- cum-dinning room, kitchen and toilet) and second floor (consisting of one barsati room, toilet and open terrace) as duly shown in the site plan attached with the petition. The tenanted premises which is one garage room measuring 16'x10' is shown in red colour in the site plan. The ground floor accommodation is in occupation of married daughter of the petitioner Mrs. Leena Dhir who is residing therein with her husband and three school going children aged about 11 years, 7 years and 5 years respectively. The first floor is in the occupation of the petitioner who was residing there with her daughter Sonia Ahuja when she was unmarried. The Barsati room is being used as guest room. The petitioner is an old lady of about 70 years of age who is a patient of 4 acute Arthritis, Hypertension, etc. and on that account coupled with old age, climbing of stairs is very difficult for her. The petitioner wants to live with her only son namely Kunal Ahuja who was earlier living in the same house but shifted to Banglore on account of getting a job at Banglore. Though after the death of his father, he wanted to live with his widow mother but the accommodation on the first floor was inadequate and he had to shift to the tenanted accommodation at Greater Kailash, after leaving his job at Banglore and joining another company in Delhi in June, 1995. Petitioner desires that her son along with his family should shift to the first floor while she wants to shift to the tenanted premises at the ground floor as the first floor accommodation is not at all suitable for her due to her old age and ailments. Hence, she filed the present eviction petition and made her son and the two daughters as proforma respondents no. 2 to 4.
2 After service of summons as per the proforma given in 5 Schedule III of DRC Act, respondent no. 1 filed application for seeking leave to defend and vide order dated 27.07.1999 he was granted leave to contest the petition by the Ld. Predecessor Court of Sh. V. K. Maheshwari, the then Ld. ARC.
3 After grant of leave to defend the case, the respondent no. 1 filed Written Statement on 06.09.1999 wherein he has admitted the relationship of landlord and tenant between the parties as well as the area of the tenanted premises. But he has submitted that the tenanted premises i.e. the garage is not capable of being used as a living room because there is only one entrance through shutter on the main road with no kitchen and WC besides its height of only 7 feet whereas as per the Municipal By-Laws, the height of a room should be at least 10 feet and the level of the room is also required to be at least 1½ feet above the road level. He has further submitted that the requirement of the petitioner is not bonafide because she is already in possession of the entire 6 first floor and second floor besides the ground floor which is also in her physical possession though occupied by her married daughter. He has denied that the petitioner is suffering from Arthritis or any other disease for the last 6 years as she alone goes to market on foot without any stick and also goes to park in the morning and evening for walk. He has further submitted that his son will never shift to the premises in question as after his marriage, his relations have become strained with the petitioner. He has further submitted that the son-in-law of the petitioner is carrying on business of wood work in the portion of the ground floor which shows that the petitioner is already having surplus residential accommodation on the ground floor. He has further submitted that after the marriage of her younger daughter Sonia Malik the petitioner has surplus accommodation with her and her need for tenanted premises is not at all bonafide.
4 In replication to the WS filed by the respondent, the 7 petitioner has submitted that the height of the tenanted premises is 8'.3" in front and 8'.8" in the rear apart from the height of 3'.3" of the loft over it and thus the total height of the garage including the loft is clearly 11'.6". She has further submitted that this garage had two openings, one in the front and the other in the rear which was really closed when the premises was let out and on vacation of tenanted garage the rear door will be opened and front entrance will be closed and thereby this room along with the portion in occupation of her marriage daughter will become one compact unit. She has further submitted that she has got inspected the tenanted premises from a registered architect of CPWD who on inspection has certified that on breaking of the loft the height of the disputed room will be 11'.7½ ". She has further submitted that she, her married son and two married daughters are the co-owners of the property and have legal right to stay in their own property. She has further submitted that the petitioner being old ailing widow needs the company of her only son and his family including her grand children 8 who would come and stay on the first and second floor and as such her requirement is totally bonafide and feasible. She has further submitted that the tenanted premises on the ground floor is suitable for her residence as after renovation, it will be a full fledged living room and she will use all the amenities of bathroom, latrine and kitchen common with her married daughter. She has further submitted that she is suffering from Arthritis for the last 6 years and is under treatment and she goes for morning walk for short time just on the advice of the doctor. She has further submitted that the ground floor has been occupied by the elder married daughter who is residing there with her husband and three school going children and thus the tenanted premises is bonafidely needed by her. She has refused straining relations with her son and the carrying on of any wood work by her son-in-law.
5 In order to prove her case she examined herself as AW1 and her son Kunal Ahuja as AW2 and closed evidence. 9 During the respondent's evidence respondent no. 1 died on 19.11.2002 and his LRs Sh. Baljeet Singh Ghai (son), Sh. Tanjeet Singh (son) and Ms. Manveer Chopra @ Babli (daughter) were brought on record by allowing the application U/O.22 R.4 CPC, vide order dated 20.03.2004 were impleaded as LRs of respondent no. 1. After that in Respondent's evidence, Tanjit Singh Ghai was examined as one and only witness and RE was closed on 11.07.07. 6 The petitioner had moved on 13.07.2000 an application U/Sec.15(2) of DRC Act for directing the respondent to pay arrears of rent and future rent and vide order dated 29.01.08 the respondent was directed U/Sec.15(2) of DRC Act to pay or deposit the rent at the admitted rate of Rs.850/- per month w.e.f. 01.07.02 till the date of order within one month and to continue to pay or deposit the future rent at the same rate by 15th of each succeeding calender month. But thereafter the respondent moved an application for review of the said order and vide order dated 05.08.08 the said review application 10 was allowed and the order dated 29.01.08 was modified and respondent was directed to pay or deposit rent at the rate of Rs.850/- per month w.e.f 01.05.04 instead of 01.07.02. 7 I have heard the final arguments from the counsel for petitioner Ms. Vandana Sharma but the counsel for respondent, despite giving a number of opportunities did come forward to address oral arguments. However, I have gone through the written arguments filed by both the parties and have also perused the entire record.
8 During the final arguments the counsel for petitioner submitted that the LR's of the respondent no. 1 are not entitled to remain in possession of the premises in question after one year from the date of death of respondent no. 1 in view of the Explanation II of Section 2(l)(iii). Though the respondent had died on 19.11.2002 but till the stage of final arguments no application was moved on behalf of petitioner in this regard and suddenly during the final arguments the 11 counsel for petitioner has raised the said plea. But the same is rejected being devoid of merit because Explanation II of Section 2(l)(iii) is applicable only on the premises let out for residential purposes whereas the premises in question is admittedly let out for commercial purposes. 9 To prove the case U/Sec.14-D of DRC Act, the petitioner is required to prove that she is a widow landlady and the premises in question were let out either by her or by her husband to the respondent and further that she requires the premises in question for her bonafide needs of residence. It is admitted fact that the premises in question which is one room/garage measuring 16'x10' in the premises bearing no. E-13/27, East Patel Nagar, New Delhi-8 as shown in red colour in the site plan Ex.AW1/5 was let out to the respondent by the deceased husband of the petitioner on 18.09.1988. It is also admitted fact that the husband of the petitioner Sh. S. N. Ahuja had died on 20.01.1995. Thus, the first requirement of Sec.14-D of DRC Act stands 12 satisfied.
10 Regarding her bonafide requirement for the premises in question, the petitioner has submitted in the petition that she is an old lady of about 70 years of age and is suffering from acute Arthritis and Hypertension and thus finds it very difficult to climb up the stairs and therefore she needs the premises in question which is situated on the ground floor. But the defence of the respondent as stated in the WS is that the tenanted premises is a garage which could not be used as a living room as its height is barely 7 feet and having only one entrance through shutter and is also without any kitchen or W.C. He has submitted that as per the Municipal By-Laws the level of the room should be at least 1½ feet above the road level with minimum height of 10 feet. To counter this objection, the petitioner, in her replication, has stated that the height of the premises in question is 8'.3"
in the front and 8'.8" in the rear apart from the the loft above it having height of 3'.3" and thus the total height of the 13 premises in question is 11'.6". She has further submitted that the premises in question had two openings, one in the front and other in the rear and the rear opening was closed at the time of letting it out, which will be reopened on vacation of the premises in question thereby connecting this room to the rest of the portion of the ground floor and thus the whole of the house will become one compact unit. Though the respondent has alleged the height of the premises in question to be only 7 feet in his WS but no evidence was led to prove this point. Rather the one and the only witness i.e. RW1 Sh. Tanjit Singh in his cross-examination has not denied the suggestion regarding height of the premises to be 8'.3" and said that he is not sure if the height of the premises in question is 8'.3". He has admitted in his cross- examination that there is a wooden parchhati of 4-5 feet above the room in dispute. The petitioner/AW1 has categorically stated in her examination-in-chief that the height of the premises in question is 8'.3" and there is a loft of height of 3'.3" above it. But neither the witness was cross- 14 examined on this point nor any suggestion was put to her denying the height of the premises as stated by her. The petitioner has categorically stated in her examination-in-chief that she would use the premises in question after renovating the same by removing shutter and closing that front opening by constructing a wall and reopening the rear door by demolishing the wall and further by increasing the height of the premises in question by removing the loft. Again the witness was neither cross-examined on this point nor any suggestion was given to her denying the habitability of the premises in question after carrying out the said renovation. It has been held by Hon'ble High Court of Delhi in Satyendra Kumar Sharma Vs. Jitender Kudsia, 2006 (1) RCR (Rent) 206, "If a witness is not cross-examined on a particular point, the opposite party must be deemed to have accepted truth of the statement."
So, in the absence of any evidence to the contrary and 15 absence of any cross-examination on the above said points it stands proved that the present height of the premises in question is 8'.3" and there is loft of height of 3'.3" and that by removing the said loft, closing the shutter opening and reopening of the rear door, the premises in question would become habitable. Moreover even the RW1 has admitted in his cross-examination that if the door is constructed in the rear part of the premises in question at point X to X1 in the site plan Ex. AW1/5, the same will lead to the ground floor and thus it is clear that the opening of rear door will connect the premises in question to the remaining portion of the ground floor which is in occupation of the elder daughter of the petitioner. The petitioner has stated in her examination- in-chief that she would use the latrine, bathroom and kitchen of her daughter on the ground floor. Thus, it is apparent that the premises in question is capable of being made habitable after the proposed renovation and the petitioner would be able to use the amenities of bathroom, W.C., etc. of her elder daughter. It has been held by Hon. High Court of Delhi 16 in M/S. Satish Raheja Vs. Prakashwati Gupta, ILR (2008) II Delhi 483 that for the purpose of Sec.14-D of DRC Act it is not necessary that the tenanted premises should be habitable in existing form and that eviction can be sought U/Sec.14-D of DRC Act so long as the premises can be made habitable. It has been held by the Hon. Court in this case as follows, "There is no prohibition against the landlady making necessary alterations in accordance with law to make the same convenient for her use as a part of her residence. The requirement of Section 14-D is not that at the time of filing of eviction petition, the tenanted premises should, in its existing form necessarily be completely habitable, in my view it would be permissible for the widowed landlady to seek eviction of the tenant U/Sec.14-D, if the other requirements of the law are satisfied."
11 In view of the above said case law the objection of the respondent is not tenable regarding the premises being non- habitable because it stands proved that the same can be 17 made habitable by increasing the height, closing the shutter opening and reopening of the rear door of it. 12 The case of the petitioner is that she needs the premises on the ground floor as she is an old lady suffering from acute Arthritis and Hypertension due to which she could not climb up the stairs. Though the respondent has denied diseases and medical record filed by the petitioner but it is not disputed that she is an old lady. In her evidence the petitioner has deposed that she is suffering from High Blood Pressure and Arthritis and has exhibited the medical certificate and medical record as Ex.AW1/7 to Ex.AW1/13. As per this medical record the petitioner has been shown as a patient of Arthritis and Hypertension. Though the respondent has objected to the mode of proof of Ex.AW1/7 to Ex.AW1/12, but this fact could not be denied that the old age in itself is a major ailment which makes the human body weak and feeble. The petitioner was 70 years old at the time of filing of the present petition and at present she is 18 more than 80 years of age and I think nobody would deny that at this advance age of 80 years its really very very difficult for an old person to climb up the stairs. I am of considered opinion that an old landlord has every right to live in his own house in a comfortable and dignified way at the fag end of his life. Similarly, the present petitioner also deserves the right to reside on the ground floor to pass the evening of her life comfortably. It would be highly inhuman if she is asked to remain confined to four walls of her accommodation at the first floor and is not permitted to live comfortably in her own house at ground floor at this fag end of her life. It has also been held by the Hon. High Court of Delhi in Om Prakash Vs. Dev Raj Kohli, 1997 (2) RCR (Rent) 318, "Bonafide requirement - Landlord himself living at first floor of a rented house -
Landlord 73/74 years old - Wanted ground floor of his own house which was convenient to him in evening of his life -
Need of landlord cannot be termed
malafide."
19
It has also been held by the Hon. High Court of Delhi in H. C. Goenka Vs. Brig. S. P. Kochar, 1999 (2) RCR (Rent) 238, "Bonafide requirement - Landlord living in first floor - Both the landlord and his wife old and ailing - Landlord cannot be compelled to live on first floor to facilitate the tenant who is on ground floor."
In Krishan Kumar Gupta Vs. Swadesh Bhushan Gupta 2008 (2) RCR (Rent) 573 Hon. High Court of Delhi has held, "Bonafide requirement - Landlord and his wife living in first floor - Both aged 70 years and suffering from various ailments (Ostro Arthritis) - Their need for ground floor was bonafide."
13 So, in the light of above said judgments and in view of the inability of petitioner to climb up the stairs in her advance age, it is held that she has bonafide need to shift to the ground floor.
2014 The next point of defence of the respondent is that the petitioner is already having surplus accommodation on the first floor and the second floor. But this contention is without any merit as the case of the petitioner is that she wants to shift on the ground floor due to her inability to climb up the stairs on account of old age and acute Arthritis and thus, having surplus accommodation on the first floor or second floor is not relevant for the present purpose. 15 The petitioner has stated in her petition that she wants to live with her only son Kunal Ahuja and his family during her old age but they could not shift there due to paucity of accommodation on the first floor. But the respondent in his WS as well as RW1 in his evidence has submitted that the said son of the petitioner has no intention to live with the petitioner due to the strained relations between them. But this son of the petitioner i.e. Mr. Kunal Ahuja was examined as AW2 and he has categorically denied any straining of relations with his mother. In the written arguments filed by 21 the respondent it is submitted that the petition is an abuse of process of law as the petitioner is emphasising on the need of her married son. But I do not concur with the said contention because it is settled law that if a person during the old age wants to live in the company of his family members, then the said need is not malafide. It is held by Hon. High Court in Bachchi Lal Vs. Hukam Chand, 1998 (1) RCR (Rent) 121, "Bonafide requirement - Landlord an old widower - Wanted company of his daughter-in-law and his grand children - Need bonafide."
Hon'ble High Court of Delhi in Vimla Sharma @ Bimla Sharma Vs. Smt. Veeran Devi, 2001 (2) RCR (Rent) 517, has held, "Section 14-D and 14(1)(e) of DRC Act -
Bonafide requirement - Widow 70 years old
- On factor of age, it would be reasonable for her to claim eviction of tenant on the 22 ground that she wished and intended to reside in the premises along with her family members - Section 14-D of DRC Act does not indicate that the need should be exclusively of the widow or that the widow should be the exclusive owner of the property."
16 Thus, this Court is of considered opinion that if the petitioner who is presently more than 80 years of age, wants to live with his son, daughter-in-law and grand children at this fag end of her life, there is nothing malafide in it. 17 The respondent in his WS has submitted that if the petitioner due to old age has got any genuine need for the ground floor on account of any difficulty in climbing up the stairs, she can shift to the ground floor and her elder daughter Leena Dhir along with her family can shift to the first floor. But this is settled law that a tenant could not dictate the landlord to adjust himself without getting the tenanted premises vacated from him. It is held by Hon'ble Supreme Court in Sarla Ahuja Vs. United India Insurance Company Ltd., (1998) 8 23 SCC 119, "It is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord, it is quite unnecessary to make endeavor as to how else the landlord could have adjusted himself."
It is also held by Hon. High Court of Delhi in Sudesh Kumari Soni Vs. Prabha Khanna, 2008 (2) RCR (Rent) 534, "Eviction of tenant on ground of bonafide requirement - Rent Controller should not proceed on the presumption that the landlord's requirement is not bonafide - When the landlord shows a prima facie case a presumption that the requirement of the landlord is bonafide, is available to be drawn - It is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises - While deciding the question of bonafides of the requirement of the landlord, it is quite unnecessary to make endeavor as to 24 how else the landlord could have adjusted himself."
18 Thus, in the present case also it is not open to the respondent to dictate to the petitioner to get her daughter shifted to the first floor and herself to the ground floor. The RW1 has categorically admitted in his cross-examination that the son of the petitioner and two daughters are the co- owners of the property in question. Thus, the elder daughter has every right to reside in the premises in question and the respondent can not dictate her to shift to the first floor. It has been admitted by RW1 that apart from the garage in question there are only two bed rooms on the ground floor. Admittedly, the elder daughter of petitioner is residing on the ground floor along with her husband and three children and thus it is apparent that there is no surplus accommodation in that portion of the ground floor.
19 Thus, from the above said discussion it is clear that the old widow/petitioner is in need of shifting to the ground floor and 25 there is no other accommodation on the ground floor except the tenanted premises where she can shift and pass the evening of her life. Hence, the petitioner has successfully established her case of bonafide need for the tenanted premises on the ground floor and therefore the present petition is allowed and accordingly, eviction order is passed in favour of petitioner and against the respondent no. 1/his LRs with respect to one garage room measuring 16'x10' in property bearing no. E-13/27, East Patel Nagar, New Delhi-8 as shown in red colour in site plan Ex. AW1/5. 20 This file be consigned to Record Room.
(ANNOUNCED IN THE OPEN COURT (NAVITA KUMARI) ON 11th, September 2009) ADDL.RENT CONTROLLER( WEST) DELHI 26 E-323/08/98 At 4.00 p.m. Present:- None.
Vide separate judgment eviction petition U/Sec.14-D of DRC Act is allowed and accordingly, eviction order is passed in favour of petitioner and against the respondent no. 1/his LRs with respect to one garage room measuring 16'x10' in property bearing no. E-13/27, East Patel Nagar, New Delhi-8 as shown in red colour in site plan Ex. AW1/5. This file be consigned to Record Room.
(Navita Kumari) ARC (West) Delhi 11.09.09