Delhi District Court
Swadesh Bhushan Gupta vs Krishan Kumar Gupta on 27 March, 2008
IN THE COURT OF SH ANIL KUMAR SISODIA; ARC/DELHI
Case No:- E-1487/06
SWADESH BHUSHAN GUPTA
s/o late Sh Phagu Ram
r/o 58, B. D. Estate,
Timarpur, Delhi Petitioner
Versus
KRISHAN KUMAR GUPTA
s/o Sh Rameshwar Dayal
r/o 83, B. D. Estate,
Timarpur, Delhi
2nd Address
58, Ground Floor,
B. D. Estate,
Timarpur, Delhi Respondent
U/s 14 (1) (e) r/w Section 25B DRC Act, 1958
DATE OF INSTITUTION: 15-05-2006
DATE OF ORDER: 27-03-2008
O R D E R:
1. Vide this order, I shall dispose of an application filed by the respondent u/s 25 B of DRC Act for permission to leave to appear and contest the Eviction Petition.
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2. The facts of the case, as stated in the Eviction petition, are that the petitioner is the owner and landlord of the property no. 58, BD Estate, Timarpur, Delhi. The petitioner let out three bedrooms, one box/store, kitchen, veranda, bath and latrine on the ground floor of the property (more specifically shown in red colour in the site plan annexed with the petition) to the respondent on 01-11-1981 through Sh Ram Swarup Gupta. The premises was let out at a monthly rent of Rs. 2,000/- excluding other charges for residential purposes. It has further been stated that premises are lying locked and respondent is residing in property no. 83, BD Estate, Timarpur, Delhi along with his family. The family of the petitioner consists of himself, his wife, six daughters and one son. The petitioner is residing on the first floor of the property which consists of three rooms, two store, kitchen, lobby, bath, latrine and one store on the ground floor as shown in yellow colour in the site plan. The second floor of the property is in possession of Smt Anjali Garg, the daughter of the petitioner who is residing there along with her husband and son. She is in possession of one room, drawing-cum-dining, open terrace, store, latrine, bathroom and kitchen. The son of the petitioner is working in Australia having one son and daughter. He frequently visits 2 India and lives in the suit property along with the petitioner. All other daughters of the petitioner are married and they visit along with their children and stay in the suit property. It has further been stated that petitioner and his wife are aged about 70 years and 67 years respectively and feel difficulty in climbing the stairs and need to live on the ground floor. Smt Anjali Garg and her son used to help the petitioner and his wife and they require their daughter in their old age. The daughter of the petitioner is dependant on the petitioner for the purposes of accommodation and the second floor has been provided to her but it is not sufficient for her as her son is of marriageable age and a separate room is required for him. The petitioner became astro-arthritis while in Nigeria and he was operated for postrute gleclui in the year 1997 and he became weak on that account and his weakness is growing. He was also hospitalized in March 2001 for his ulcer and polyburst in the stomach. The wife of the petitioner suffered slipped disc in the backbone while in Nigeria. The petitioner require the accommodation for themselves which includes drawing room, dining room, puja room, guest room and room for their children and also for their residence. Besides this, they also require two rooms for their son who used to come and stay along with his family and he is keeping all his goods with the 3 petitioner. The daughters' son Anjali Garg aged about 25 years is to be married and there is no accommodation to meet his requirement. Accommodation is also required for the daughter of petitioner who is dependent on him.
3. The respondent was served with the summons in the form prescribed under Schedule III of DRC Act and the respondent has contested the eviction petition by filing an application for leave to defend and contest the eviction petition along with detailed affidavit.
In his affidavit, the respondent has taken the grounds that landlord/owner is having several other properties other than the property at 58, Banarsi Das Estate, Delhi. It has also been submitted that suit premises was let out to him for residential as well as commercial purposes and he is using the premises for office from the inception of the tenancy with the knowledge and consent of the petitioner. The premises is not required by the petitioner bonafide for his residence or occupation of himself or any of his family members and petition u/s 14 (1) (e) DRC Act is not maintainable. The petition has been filed on false grounds and the diseases referred to by the petitioner could not be located in the medical dictionary and the petitioner and his wife are having good 4 health. It has also been specifically denied that petitioner or his wife suffers any difficulty in climbing the stairs to the first floor. The landlord has expressly referred to his "wish and desire" for the suit property and it is well settled that mere wish or desire is not sufficient for obtaining eviction of the tenant and the landlord must have actual and existing need of the tenanted premises. The site plan filed by the petitioner is incorrect. The petitioner has shown a lobby of 11' 7.5'' x 9' 9''. It has been stated that said lobby has been covered from all sides and has been covered into room. Similarly, the petitioner has wrongly designated one room as a store and thus the petitioner is in possession of five rooms besides one store room on the ground floor. There are only two persons in the family of the petitioner i.e. petitioner and his wife. It has further been stated that Anjali and her son are separated from the petitioner in kitchen and earnings. Anjali is carrying on her separate business and therefore they do not form part of the family of the petitioner. First husband of the Anjali has expired and she has been remarried and is now with her husband at Uttam Nagar. The second floor of the house is also available to the landlord. The other three daughters of the petitioner are also married and are living in matrimonial homes and only casually visit him. One daughter Prerna has shifted to 5 USA several years ago and she has not visited India even once thereafter. The son of the petitioner Pradeep is settled in Australia for more than a decade and he rarely visits India and that too for short durations. Even otherwise, the requirements of the sons/daughters occasionally visiting the petitioner can be met with a guest room. The present petition has been filed malafide as the landlord had asked the rent to be increased to Rs. 12,000/- which was refused by the respondent. The respondent is living in the suit premises along with his wife and has no other accommodation. It has also been denied that he owns the flat no. 83, B. D. Estate, Timarpur, Delhi. It has been stated that respondent has shown such facts as would disentitle the landlord from obtaining an order of eviction and prayer has been made for granting leave to contest the eviction petition.
4. The petitioner has filed reply to the application and counter-
affidavit. In the reply, the petitioner has denied the contents of the application and reiterated and re-affirmed the contents of his eviction petition. It has been stated that respondent has not disputed the extent of family, floor occupied by the petitioner, accommodation with the respondent and the age of the petitioner and his wife. The respondent 6 has also not disputed that property is question is residential. In the counter-affidavit, it has been stated that the petitioner has no other accommodation except the suit property. The suit property was let out for residential purposes and were used by the respondent for residential purposes. The respondent has falsely alleged that he is using the same for office since the inception of the tenancy. The respondent has shifted to adjoining property no. 83, B. D. Estate purchased by the respondent and his sons and after filing of the petition he has again shifted to the suit property. It has also been denied that petitioner does not require the premises bonafide. He has further stated that lobby cannot be used as a room and the petitioner is only having three rooms on the first floor. The daughter of the petitioner namely Anjali, her son and husband are living on the second floor and are looking after the petitioner and his wife in their old age. It has also been denied that petitioner has demanded rent of Rs. 12,000/- per month from the respondent.
The petitioner has also filed an affidavit of his daughter along with his counter-affidavit.
5. I have heard counsel for petitioner as well as respondent on the application for leave to defend and have also perused the record 7 carefully inter-alia the application for leave to defend filed by the respondent supported by the affidavit, counter affidavit filed by the petitioner, as well as documents filed by the parties in support of their affidavits.
6. At the outset, it may be mentioned that it has now been well settled that in order to obtain leave to defend to contest the Eviction Petition, the tenant is required to file affidavit disclosing such facts which would disentitle the landlord from obtaining the eviction order. Such facts must be material and substantial and they must be bonafide. Further, it has to be seen that allegations of facts are not meant to delay the disposal of the eviction petition. It is also well settled that mere denials for the sake of denials are no grounds in the eyes of law and if there is no grounds for plea, eviction order has to be passed against the tenant whereas if the facts disclosed by the tenant in his affidavit raised triable issues, then he is entitled for the grant of leave to defend and contest the eviction petition.
7. Clause (e) of proviso to Sub-section (1) of Section 14 of the DRC Act postulates four conditions which must be satisfied:- (i) that the 8 landlord must be the owner of the property; (ii) the premises must have been let out for residential purposes; (iii) the premises must be required bonafide by the owner for occupation as residence for himself or for any of his family members dependent on him; and (iv) non-availability of the any other reasonably suitable residential accommodation. Ownership of the property and relationship of landlord and tenant between the parties :
8. Perusal of the application for leave to defend filed by the respondent shows that he has nowhere disputed the fact that petitioner is the owner of the suit property and that he is a tenant under the petitioner. Hence, in view of the admission of the respondent, it is established that petitioner is the owner of the suit property and there is relationship of landlord and tenant between the parties. Purpose of Letting:
9. The petitioner in his eviction petition has stated that the premises was let out for residential purposes. The respondent in his application for leave to defend has disputed this fact and has claimed 9 that the premises was let out for residential cum commercial purpose and he is using the premises for his office since the inception of the tenancy. Admittedly, there is no rent receipt or rent agreement executed between the parties which could show the purpose of letting. It has been laid down by Hon'ble High Courts as well as Hon'ble Supreme Court in a number of cases that where there is no material on record to indicate purpose of letting, the purpose of letting has to be inferred from nature of premises, its design and location and dominant use to which the building has been put for over years. It has also been held that where a building is a residential premises, the incidental use of residential premises for commercial purpose will not take the building out of expression 'residential premises'. In the present case, the petitioner has filed the site plan of the suit property which shows that the premises has been constructed as a residential property and is predominantly being used as residential building.
On the other hand, the respondent has neither specified as to what business is being carried out by him from the suit premises nor he has placed on record any documents to show that tenanted premises was let out for composite purposes or it is being used as such since the inception of the tenancy. The respondent has even failed to specify as 10 to which portion of the suit property is being utilized by him as an office. In the absence of any such material on record and keeping in view the fact that the suit property is constructed as a residential building situated in a residential area, the contention of the respondent that suit premises was let out for residential-cum-commercial purposes appears to be untenable and cannot be accepted. Accordingly, it is held that suit premises was let out for residential purposes.
Bona Fide Requirement and availability of alternate accommodation.
10. These two ingredients are inter-related and hence are being taken up together. The respondent in his application for leave to defend has challenged the bonafide requirement of the petitioner on the grounds that the petitioner has not filed the correct site plan and wrongly mentioned one of the rooms as lobby and another room as store. At the outset, it may be mentioned that respondent has not filed any site plan to counter the site plan filed by the petitioner. Hence, the site plan filed by the petitioner has to be accepted as correct in view of the judgement of Hon'ble High Court of Delhi in 1999 (1) RCR 529 (Delhi) wherein it was 11 held that "in view of the fact that tenant has not filed any site plan to show that the plan filed by the landlady is incorrect, the site plan filed by the landlady should be deemed to be correct.".
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11. Ld. Counsel for the respondent has also argued that petitioner is in possession of five rooms and there are only two family members viz. petitioner and his wife. Counsel for the petitioner on the other hand has argued that the petitioner is only in possession of three rooms and not five rooms. He has further argued that petitioner cannot be compelled to use lobby as a room only in order to save the respondent from eviction. The petitioner is entitled to live comfortably in his house. It has also been argued that the store shown on the first floor is measuring 9' 4.5'' x 8' and it cannot be considered as a room in view of the fact that it is less than 100 sq yards in area. Reliance has been placed on the judgement of Uttam Chand Suri Vs. Ram Murty Gupta 1980 (2) All India RCJ
410. I find myself in agreement with the contentions of the counsel for the petitioner that a room which is having a floor area of less than 100 sq feet cannot be held to be a living room. Similarly, the space used as a lobby cannot be considered as a room suitable for living even though it is covered from all sides.
12. It has further been argued by the counsel for the respondent that the daughter of the petitioner Anjali is earning separately and is having a separate business and cannot be counted as a family member 13 of the petitioner. However, I do not find myself in agreement with the arguments of the counsel for the respondent. For the purposes of determining whether a person is dependent upon landlord while considering petition u/s 14 (1) (e) DRC Act, it has to be seen whether the said person is dependent upon the landlord for the purposes of residence or not. Even if a person is financially independent and is having separate income, he still may be considered as dependent upon the landlord for the purposes of residence, if he is residing as a family member of the landlord. I am supported in my views by the judgement of our own High Court in Manmohan Mehra, Vs. J.S. Butalia, 1983(2) RLR, 625 wherein it was held that even if the children of the landlord are earning independently but for residence they are dependent upon the parents and the parents need the help of such children in old age and ailment and the need of such children would fall within the terms of need of family. Hence, the requirements of the daughter of the petitioner or her family members who are residing with the petitioner have to be taken into consideration as they are residing along with the petitioner as his family members. Even otherwise, the respondent in his counter-affidavit has made contradictory statements with regard to Anjali. In para 8, it has been stated that Anjali and her son are living on the second floor of 14 the suit property but in para 9 it has been stated that Anjali has been remarried and is now with her husband at Uttam Nagar. The second floor of the house is thus available to the landlord. This shows that respondent himself is not sure as to what defence he has to adopt and he is taking self-contradictory defences.
13. The respondent has also not denied the number of children of the petitioner. Although, he has claimed that the other children of the petitioner are residing separately and only occasionally visit the petitioner. Even if it is accepted that all other children of petitioner are married and are staying separately but even then the requirements of these children have to be taken into consideration as they are visiting their parents and staying with them.
14. The petitioner has claimed that he requires one drawing room, one dining room, one pooja room, guest room and two rooms for their sons, one separate room is also required for the son of the daughter of the petitioner Anjali who is of marriageable age and requires a separate room.
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15. It is not in dispute that the petitioner is a man of status and hence his requirements for one room for himself and his wife besides one drawing room, dining room, pooja room and guest room cannot be considered as malafide. Similarly, the requirement of one separate room for the son of the daughter of the petitioner who is of marriageable age has to be considered as a bonafide requirement. Thus, in all the petitioner requires five rooms whereas only three rooms are available with the petitioner on the first floor. Even on the second floor, there is one drawing-cum-dining room and one room which is in occupation of daughter of the petitioner and her husband. Thus, the petitioner is in shortage of two rooms. Although the respondent in his affidavit has claimed that the petitioner has available to himself several other properties but the respondent has not specified even a single property other than the suit property which is available for petitioner for his residence. Hence, even this contention of the respondent cannot be accepted.
16. Thus, after assessing the rival contentions of the parties, I am of the considered opinion that respondent has failed to raise any triable issues or to disclose such material facts as would disentitle the landlord 16 from getting eviction orders. Hence, in view of the aforesaid discussion, the application filed by the respondent seeking permission for leave to defend eviction petition is dismissed.
17. Accordingly, an eviction order is passed in favour of petitioner and against the respondent directing him to handover the vacant and peaceful possession of the tenanted premises in property no 58, B. D. Estate, Timarpur, Delhi more specifically shown in red colour in site plan annexed with the petition. Further, the landlord shall not be entitle to obtain the possession of the aforesaid tenanted premises from the respondent before expiry of period of six months form the date of passing of this order as provided u/s 14 (7) of DRC Act.
18. The petition for eviction u/s 14 (1) (e) r/w 25B of DRC Act is accordingly disposed of. No orders as to cost. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT On 27th March, 2008 (ANIL KUMAR SISODIA) Additional Rent Controller/Delhi 17 E-1487/06 27-03-2008 Pr: None Vide my separate order announced in the open court today, application of the respondent to contest the eviction petition is dismissed. Accordingly, an eviction order is passed in favour of petitioner and against the respondent directing him to handover the vacant and peaceful possession of the tenanted premises in property no 58, B. D. Estate, Timarpur, Delhi more specifically shown in red colour in site plan annexed with the petition. Further, the landlord shall not be entitle to obtain the possession of the aforesaid tenanted premises from the respondent before expiry of period of six months form the date of passing of this order as provided u/s 14 (7) of DRC Act.
The petition for eviction u/s 14 (1) (e) r/w 25B of DRC Act is accordingly disposed off. No orders as to cost. File be consigned to Record Room.
ARC/Delhi 27-03-2008 18