Delhi District Court
Smt. Dhanno Rani @ Dhanwati vs Smt. Madhu Sharma on 15 October, 2014
IN THE COURT OF SHRI SANDEEP GARG: ADMINISTRATIVE
CIVIL JUDGE CUM ADDITIONAL RENT CONTROLLER
(CENTRAL) : DELHI
E339/2013
Unique ID No : 02401C0276002013
In the matter of:
Smt. Dhanno Rani @ Dhanwati,
W/o Sh. Dinesh Kumar,
D/o Late Sh. Kailash Chand,
R/o 6411, Main Bazar,
Katra Bariyan, Delhi110006,
Through her Next Friend,
Sh. Sanjay Gupta (brother of the petitioner)
S/o Late Sh. Kailash Chand,
R/o 1213, Gali Samosan,
Farash Khana, Delhi110006.
....Petitioner
Versus
1. Smt. Madhu Sharma,
W/o Late Sh. Dinesh Sharma,
2. Smt. Rekha Sharma,
W/o Late Sh. Mukesh Sharma,
3. Sh. Vishal Sharma,
S/o Late Sh. Dinesh Sharma,
4. Sh. Vikas Sharma,
S/o Late Sh. Mukesh Sharma
All R/o 4492, Daiwara, Nai Sarak,
Delhi110006
.....Respondents
O R D E R:
1. Vide this order, an application for leave to defend, filed on behalf E339/2013 Page 1/30 of the respondents under Section 25B (4) of The Delhi Rent Control Act, 1958 (hereinafter referred to as DRC Act, 1958) seeking leave to contest the present eviction petition is disposed of.
2. The present eviction petition was filed by the petitioner namely Smt. Dhanno Rani @ Dhanwati through her next friend Sh. Sanjay Gupta (brother) in respect of the tenanted portion in property no.4492, Daiwara, Nai Sarak, Delhi110006. It is averred that the petitioner is sole, exclusive and absolute owner of the suit property on the basis of registered Will dated 07.01.1991, executed by Smt. Putli Devi, W/o Late Sh. Rattan Lal, grandmother of the petitioner. The tenanted premises was let out for residential purpose to the respondents and it comprises of two rooms, part of two chajja/balconies i.e. one towards road side and another towards gali situated on the first floor for rent of Rs. 50/ per month excluding other charges. Respondents are also liable to pay property tax.
3. The petitioner is deaf and dumb. She has been examined by the doctors of the government hospitals confirming her said conditions and a E339/2013 Page 2/30 certificate has been issued. The petitioner is also not educated in the language prescribed for deaf and dumb persons. She is communicating with the family, next friend and other relatives through the oral and sign communications who understand her such communications, being used to her. Hence, by that reason petitioner is incapable of presenting and prosecuting her case to its logical end and protecting her interest. The present petition has been filed through next friend, who is real brother of the petitioner, who understands her communications through signs and he has no interest adverse to the petitioner and in the present petition.
4. No written agreement of tenancy executed, if any is available with the petitioner. Smt. Shanti Devi, W/o Late Sh. Om Prakash was the tenant in respect of tenanted premises under Smt. Putli Devi predecessor in interest of petitioner and after her demise although her rights of tenancy devolves upon her legal heirs including respondents. However, only respondents have been living in the tenanted premises and only they have been dealing in respect of the tenanted premises with the petitioner in exclusion of other heirs of Smt. Shanti Devi and paying rent of the tenanted E339/2013 Page 3/30 premises to the petitioner. The other legal heirs of late Smt. Shanti Devi have never dealt and/or asserted their rights in respect of the tenanted premises with the petitioner at any point of time, hence they deemed to have surrendered their tenancy rights in respect of the tenanted premises.
5. The suit property bearing no. 4492, Daiwara, Nai Sarak, Delhi110006 is a built up property consisting of:
a) Ground Floor i.e. only Dehleez, a common toilet under the stairs for use of all the occupants of the suit property, the said stairs leading from ground floor to first and second floors.
b) First Floor i.e. three rooms, one store, one kitchen and open common courtyard/chowk, two chajja/balconies;
Out of which one room no.1, one store and one kitchen and part of two chajja/balconies, one towards road side and another towards gali are in tenancy of respondents, more particularly shown in red colour in the site plan filed. The remaining two rooms no.2 and no.3 and part of two chajja/balconies, on towards road side and another towards gali are in occupation of Smt. Madhu and Smt. Rekha, being legal heirs of Smt. Shanti E339/2013 Page 4/30 Devi, the other deceased tenant in respect of said two rooms shown in green colour in the site plan.
c) Second Floor i.e. two rooms, one store, one kitchen and open terrace.
Out of which one room no.4 is in occupation of the petitioner, shown in blue colour in the site plan and another room no.5, one store and one kitchen are in tenancy and occupation of legal heirs of Sh. Daya Ram, the same are shown in yellow colour in the site plan of the suit property.
6. The petitioner alongwith her family is living in H.No. 6411, Gali Kalyan, Main Bazar, Katra Bariyan, Delhi110006. The said house although is matrimonial home of petitioner, however the same belongs to motherin law of the petitioner. Further, this matrimonial house is a small house of about 70 sq. yds., consisting of ground floor, first floor, second floor, third floor and terrace/barsati floor and is occupied by various persons described as per site plan of this house filed and details as under:
a) Ground Floor consisting of two godowns and one kolki, which are in commercial use and occupation of different persons (third party i.e. E339/2013 Page 5/30 other than the family members of inlaws of the petitioner) and petitioner is not aware of their names and particulars and as to whether they are sold and let out by her motherinlaw.
b) First Floor consisting of three rooms, one common bathroom, one toilet, open common courtyard/chowk and stairs leading to upper floors.
Out of which rooms no.1 & 2 are in tenancy and occupation of a tenant. Room no.3 is in occupation of Sh. Vikash, elder son of Sh. Duli Chand (brotherinlaw/Jeth of petitioner) who is living alongwith his wife Smt. Varsha and their two children.
c) Second Floor consisting of two rooms, one kothri, one kitchen, one common bathroom, one common toilet below stairs, open common courtyard/chowk and stairs leading to upper floors.
Out of which room no.4 is in tenancy and occupation of Smt. Anjana, wife of deceased tenant Sh. Subhash. Room no.5, kothri and kitchen are in occupation of Sh. Duli Chand (brotherinlaw/Jeth of petitioner) who is living alongwith his wife and second married son Sh. Nitin and his family consisting his wife and one child.
d) Third Floor consisting of three rooms, one kothri, one common E339/2013 Page 6/30 kitchen, one common bathroom, open common passage and stairs leading to upper floor.
Out of which room no.6 and kothri is in occupation of Sh. Dev Raj (another botherinlaw/Jeth of petitioner). Room no.7 is in occupation of Smt. Dulari Devi (motherinlaw of petitioner). Only room no.8 is in occupation of petitioner, her husband and her children. The occupants of the third floor uses toilet on terrace floor.
e) Terrace Floor consisting of one room, one kitchen, one common toilet.
The room and kitchen is in occupation of Sh. Ritesh, married son of Sh. Dev Raj (another brotherinlaw/Jeth of petitioner) who is living alongwith his family and he is also using bathroom on third floor.
7. The accommodation in which the petitioner and her family is residing is the house of motherinlaw of the petitioner and the portion under occupation of petitioner is highly/extremely insufficient accommodation for residence of petitioner and her family consisting of herself, aged about 41 years; Sh. Dinesh Kumar, aged about 45 years, husband of petitioner; Mr. E339/2013 Page 7/30 Mohnish Gupta, aged about 20 years, son of petitioner, studying B.Com, Delhi University and Mr. Sudhanshu Gupta, aged about 17 years, son of petitioner, studying in Class 12th in Rohatgi A.V. Sr. Secondary School who are dependent upon petitioner for the purpose of their residence.
8. With the passage of time and with the growth of respective families of petitioner, her brotherinlaws, the occupancy in the matrimonial of petitioner become overcrowded and highly insufficient to meet their respective residential needs. In the beginning discomfort started to everyone more particularly to the petitioner and her family, due to insufficient accommodation and which resulted gradually into bickering, abuse and frequent quarrellings, fights amongst respective members including children of petitioner, interalia because of unavailability of sufficient rooms to the petitioner and her sons, separate kitchen, separate bathroom and separate toilet. The motherinlaw and brotherinlaws of the petitioner are also everyday pressing hard upon the petitioner to arrange to shift to some other place. For want of availability of sufficient residential accommodation, the petitioner, who is already deaf and dumb and her family i.e. husband and E339/2013 Page 8/30 sons suffered and are continuing to suffer in every manner. Even the studies, future including career and settling into matrimonial lives of the children of the petitioner, at this stage, is getting affecting seriously and adversely, for want of availability of sufficient residential accommodation with the petitioner and her family members.
9. The petitioner is the owner of the tenanted premises and except to the said property the petitioner, her husband and children are not owner and in possession of any other residential property, for the purpose of residence of herself, the family dependent upon her, visiting relations, guest etc.
10. The bonafide need of the petitioner and of her family, is for minimum accommodation i.e. one bedroom for petitioner herself and her husband; two bedrooms for each son of the petitioner; one drawing room; one dining room; one guest room for visiting guests; two study rooms for sons of petitioner; one room for attendant/servant; two store rooms (one for the petitioner and her husband, one for her sons for storing households and other necessary belongings); one pooja room; kitchen; bathroom and toilet. E339/2013 Page 9/30 The tenanted premises let out to the respondents is required by the petitioner for bonafide need of residence of herself, her family members dependent upon her and will shift to the tenanted premises alongwith her family. It is prayed that an eviction order may be passed in respect of the tenanted premises as shown in red colour in the site plan.
11. The respondents have filed an application for leave to defend U/s 14 (1) (e) r/w Section 25B of DRC Act to defend and contest the eviction petition. The respondents have contended that as per own allegations of the petitioner, she is deaf and dumb and understands through sign communications and is personally incapable to prosecute present petition. Admittedly, her brother Sh. Sanjay Gupta, has not been appointed as guardian of the person and properties of the petitioner, including the property in question. Under the circumstances Sh. Sanjay Gupta is not competent, empowered or authorized to represent the petitioner for filing and prosecuting present petition. Hence, the present petition is vitiated on the face of it, legally untenable. The alleged Will dated 07.01.1991 is fake, manipulated, legally untenable and without substance on the fact of it, E339/2013 Page 10/30 because it has different fonts, typewriter and prints. First page of said Will is almost different to all other pages. The same cannot be taken as a legal and valid document in the eyes of law. As per own allegation of the petitioner, she has claimed her alleged title qua premises in question on the basis of alleged Will dated 07.01.1991 when she was just 19 years of age, executed by her grandmother Smt. Putli Devi. In said Will, her grandmother appointed her son Sh. Kailash Chand as executor of the Will. Admittedly, Sh. Kailash Chand, father of the petitioner is not representing the petitioner in this case. As per own allegations of petitioner, she is married, blessed with two sons, aged about 21 years and 17 years respectively, both are students, and living with her husband and both the children. There is no allegation of any dispute with her husband. There is no explanation, as to why her husband and/or major child are not representing her as her next friend and as to why her brother Sh. Sanjeev Gupta is representing her as her next friend for prosecuting this case. Her brother Sh. Sanjay Gupta cannot be taken, nor competent to represent the petitioner as her next friend.
12. Even as per Will, upper floor of properties no. 4449, 4451 and E339/2013 Page 11/30 4492, Daiwara, Nai Sarak, Delhi110006 were bequeathed by the testator Smt. Putli Devi in favour of the petitioner, but intentionally and deliberately, she has mentioned the details of her alleged ownership regarding properties no. 4492, Daiwara, Nai Sarak, Delhi110006 and 6411, Gali Kalyan, Main Bazar, Katra Bariyan, Delhi110006. She has intentionally and deliberately concealed and suppressed the ownership of upper floors of properties no. 4449 and 4451, Daiwara, Nai Sarak, Delhi110006. Even as per Will dated 07.01.1991 upper floors of property 4492, Daiwara, Nai Sarak, Delhi110006, were bequeathed in favour of petitioner, and first floor of said property has not been bequeathed in favour of petitioner. Hence, she cannot claim herself to be owner of first floor portion of said property, part of which is in possession of respondents. Hence, she has no locus standi to file present petition, nor is entitled for any relief against the respondents. The present petition is without cause of action, because as per her own allegations, she is neither owner, nor landlady of portion in occupation of respondents, in view of alleged Will dated 07.01.1991. She cannot claim eviction of said portion. The petitioner is guilty of intentionally and deliberately suppressing, concealing and hiding properties no. 4449 and E339/2013 Page 12/30 4451, Daiwara, Nai Sarak, Delhi110006 which came to her share on the basis of alleged Will dated 07.01.1991. Hence, the present petition is legally untenable.
13. It is further averred that husband of the petitioner has half share in property no. 6411, Gali Kalyan, Main Bazar, Katra Bariyan, Delhi110006 and the petitioner alongwith her husband and sons are in possession of half share of said property. Entire second floor of property no. 4492, Daiwara, Nai Sarak, Delhi is lying vacant and there is no tenant in said portion. Petitioner with her family members can comfortably occupy and enjoy second floor portion of said property for their residence. There is dispute regarding ownership of property in question, amongst the petitioner, her uncles and aunts, because the owner of said property Smt. Putli Devi was blessed with five sons and four daughters. All her nine children were alive at the time of execution of said Will dated 07.01.1991. Hence, there was no occasion for testator of said Will, to bequeath the upper floors of properties no. 4449, 4451 and 4492, Daiwara, Nai Sarak, Delhi110006 in favour of the petitioner. In view of dispute amongst legal heirs of Late Smt. Putli Devi, on E339/2013 Page 13/30 account of succession of her estates, including the portion in occupation of the respondents, petitioner cannot claim herself to be owner of premises in question. Unless and until a Probate/letter of administration to the estates of Late Smt. Putli Devi and/or specific order/judgment or decree, as regards ownership of property in question, is passed in favour of petitioner, she cannot claim herself to be owner/landlady of premises in question. Without prejudice to pleas and contentions, even as per own contention of the petitioner, and alleged Will dated 07.01.1991, whereby upper floors of properties on. 4449, 4451 and 4491, Daiwara, Nai Sarak, Delhi110006 have been bequeathed in favour of the petitioner, beside share of her husband in property no. 6411, Gali Kalyan, Main Bazar, Katra Bariyan, Delhi110006, the petitioner is owner and in possession of accommodation, much more than her requirement for residence, for herself, husband and two unmarried, student children. As such, she neither requires, nor is competent to claim the portion in occupation of respondents for her residence.
14. The petitioner has alleged that the respondents alongwith Smt. Rekha Sharma and Sh. Vikas Sharma are in possession of two rooms and E339/2013 Page 14/30 part of two chajjas (projections/balconies) of premises no. 4492, Daiwara, Nai Sarak, Delhi. Same is part of tenanted portion in occupation of respondents alongwith Smt. Rekha Sharma and Sh. Vikas Sharma. There is no allegation of partition of said two chajjas/balconies amongst the occupants of first floor of said premises. The tenanted portion of respondents alongwith Smt. Rekha Sharma and Sh. Vikas Sharma is not specified and petition has been filed for part of tenanted portion. There are simple allegations that elder brothers of her husband Sh. Duli Chand and Sh. Des Raj are pressurizing and insisting for her eviction from portion in her occupation in said premises, which are without any evidence. Hence, it is of no legal credence, consequence or substance. Allegations in the petition are self contradictory on the face of it. Allegations are vague, baseless, without any legal substance, unbelievable and improbable. The petitioner never collected the rent for portion in occupation of respondents and in fact Sh. Sanjay Gupta and Sh. Pawan Gupta, used to claim and collect rent of said portion from the respondents, by claiming themselves to be owners/landlords of said portion from the respondents, by claiming themselves to be owners/landlords of said portion. But on the contrary, the petitioner is E339/2013 Page 15/30 claiming herself to be owner of portion in question. The present petition has not been filed by the petitioner for her bonafide requirement, but by Sh. Sanjay Gupta, in the name of petitioner, for lust of exorbitant rent of tenanted portion, prevailing in the market i.e. for his selfish and vested interest. Hence, petitioner is not entitled for relief sought. The petition is bad for nonjoinder of all the legal heirs of Smt. Putli Devi.
15. The petitioner filed her reply alongwith counter affidavit to the application for leave to defend, filed by the respondents and has denied the allegations leveled by the respondents. She has denied the averments made by the respondents in their application for leave to defend and reaffirmed her stance, as averred in the petition.
16. Respondents filed rejoinder and allegations leveled by the petitioner were controverted and rebutted. The averments made in application for leave to defend have been reiterated and reaffirmed.
17. The court has heard submissions advanced on behalf of both the E339/2013 Page 16/30 parties and have perused the material on record.
18. While deciding the question as to whether leave to defend should be granted or refused, the Court is required to examine the case on the following aspects :
(a) That the petitioner is owner of the tenanted premises;
(b) Purpose of letting;
(c) That the premises is required bonafide by the petitioner; and
(d) That the petitioner has no other alternative suitable accommodation in Delhi.
19. In Precision Metal & Engg. Works Vs. Prema Deva, Niranjan Deva Tayal, AIR 1982 SC 1518, it has been held that "while deciding the application for leave to contest, the controller has to confine himself to the affidavit filed by the tenant under Sub Section (4) and the reply if any. On perusing the affidavit filed by the tenant and the reply if any filed by the landlord, the controller has to pose to himself the only question, "Does the affidavit disclose, not prove, facts as would disentitle the landlord from E339/2013 Page 17/30 obtaining an order for the recovery of possession on the ground specified in clause of the proviso to Section 14 (1)?". The controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against the other set of affidavits."
The gist of the various decisions is that if any triable issue is raised in the application which can not be decided unless the parties lead evidence, leave to contest should be granted. In all other cases, the leave has to be refused.
20. In Rita Lal Vs. Raj Kumar Singh (2002) 7 SCC 614, Hon'ble Supreme Court has observed as under : "If the Court is satisfied that though in the pleadings an issue is raised but that is not a triable issue then the Court is justified in refusing the leave to defend. A defence, which is practically moonshine, sham or illusory can not be held to be raising a triable issue. Else the whole purpose behind enacting a provision for granting leave to defend, and not permitting a contest unless leave was granted, would stand defeated." Ownership
21. The respondents have contended that the petitioner is not owner E339/2013 Page 18/30 of the tenanted premises. The Will dated 07.01.1991 alleged to have been executed by grandmother of the petitioner in her favour is fake as it is having different fonts, written with different typewriters. Its first page is different from other pages. Moreover, Sh. Kailash Chand was appointed as Executor of the said Will and Sh. Kailash Chand is not representing the petitioner in the present petition. The petitioner has incorrectly stated that she is owner of first floor of property bearing no. 4492, Daiwara, Nai Sarak, Delhi whereas upper floors of the said property were allegedly bequeathed in her favour. The first floor has not been bequeathed in favour of petitioner. There is a dispute amongst petitioner and her uncles, aunts pertaining to ownership of the property. No probate/Letter of Administration has been obtained by the petitioner with regard to alleged Will dated 07.01.1991. The petitioner never accepted the rent of the tenanted premises and Sh. Sanjay Gupta, Sh. Pawan Gupta used to claim and collect rent from the respondents by claiming themselves to be owner of the tenanted premises.
22. Per contra, it has been contended on behalf of the petitioner that the respondents have been paying rent of the tenanted premises to her on the E339/2013 Page 19/30 basis of the registered Will dated 07.01.1991 and therefore, they have acted on the Will. The respondents can not challenge the legality and validity of the registered Will. Sh. Kailash Chand, father of petitioner had expired on 08.07.2003 and therefore he could not have represented the petitioner in the present in petition. It is denied that the petitioner is owner of only upper floors of property bearing no. 4492, Daiwara, Nai Sarak, Delhi and she is not owner of the first floor of this property. It is denied that there is an dispute regarding ownership of the tenanted premises between petitioner and her uncles, aunts. There is no mandatory requirement to obtain probate/Letter of Administration of Will dated 07.01.1991 in Delhi. It is also denied that the petitioner never collected rent of the tenanted premises from the respondents and Sh. Sanjay Gupta, Sh. Pawan Gupta used to claim and collect rent from the respondents.
23. The court is of the considered view that the Will dated 07.01.1991 is registered. Registration of a document is done after authenticating and verifying the identity of the executants. Moreover, it is well settled proposition of law that a tenant cannot dispute the contents of a E339/2013 Page 20/30 Will. A Will may be challenged by heirs or successors of the executant. Reference can be made to the decisions of Hon'ble High Court of Delhi in the cases of Bhagwan Vs. Vijay Rani, 2010 (2) RCR 359; Navneet Lal Vs. Deepak Sawhney, 173 (2010) DLT 189; Bharat Bhushan Vij Vs. Arti Teckchandani, 2008 (153) DLT 247; Ravi Prakash Garg Vs. Jaswant Singh Jaiswal, 2013 (1) RCR (Rent) 642; Plastichemicals Company Vs. Ashit Chadha & Anr., 114 (2004) DLT 408. Sh. Kailash Chand, father of the petitioner had already died on 08.07.2003 and therefore, he could not have represented the petitioner in the present petition. No document has been filed by the respondents to establish that there is a dispute regarding ownership of the tenanted premises between the petitioner and her uncles, aunts etc. As per the provisions of Indian Succession Act, 1925 and Transfer of Property Act, 1882, it is not essential to obtain probate of a Will in Delhi. The receipts bear the signatures of the petitioner establish that she used to issue receipts to the respondents and therefore, there is no merit in the contention that Sh. Sanjay Gupta and Sh. Pawan Gupta used to take rent by claiming themselves to be owner of the tenanted property. Therefore, the court holds that the petitioner is owner of the tenanted premises and she is E339/2013 Page 21/30 landlord in respect of the tenanted premises, qua the respondents. Purpose of Letting
24. Purpose of letting has become redundant as in Satyawati Sharma Vs. Union of India 148 (2008) DLT 705 Supreme Court, it has been held that the premises let out either for residential or for commercial purposes can be got vacated by the landlord for bonafide requirements. Moreover, admittedly, the tenanted premises is a residential one. Availability or NonAvailability of alternative suitable accommodation in Delhi
25. It is contended on behalf of the respondents that as per the Will, upper floors of properties no. 4449, 4451 and 4492, Daiwara, Nai Sarak, Delhi were bequeathed in favour of the petitioner. The petitioner has mentioned details of only properties bearing no. 4492, Daiwara, Nai Sarak, Delhi and 6411, Gali Kalyan, Main Bazar, Katra Bariyan, Delhi. She has intentionally and deliberately concealed about her ownership of upper floors of properties no. 4449 and 4451, Daiwara, Nai Sarak, Delhi. The husband of E339/2013 Page 22/30 the petitioner is having half share in property no. 6411, Gali Kalyan, Main Bazar, Katra Bariyan, Delhi and petitioner, her husband and sons are in possession of that half share. The entire second floor of property no. 4492, Daiwara, Nai Sarak, Delhi is lying vacant and the same can be used by the petitioner and her family members.
26. Per contra, it has been contended on behalf of the petitioner that she has not concealed about her ownership of properties bearing no. 4492 and 4451, Daiwara, Nai Sarak, Delhi. As a matter of fact, there are three shops on the ground floor in properties bearing no. 4449, 4450 and 4451, Daiwara, Nai Sarak, Delhi. However, the portion above these shops is part and parcel of property no. 4492, Daiwara, Nai Sarak, Delhi. It is denied that husband of petitioner is having half share in property no. 6411, Gali Kalyan, Main Bazaar, Katra Bariyan, Delhi and her family is in possession of that half share. This property is owned by mother in law of the petitioner. It is also denied that entire second floor of property bearing no. 4492, Daiwara, Nai Sarak, Delhi is lying vacant which can be used by the petitioner and her family. The petitioner is in possession of only one room i.e. room no. 8 on E339/2013 Page 23/30 third floor. Similarly, the respondents have failed to file any document to establish that entire second floor of property no. 4492, Daiwara, New Delhi is lying vacant. The petitioner is in occupation of only one room no.4 on the second floor and the other portion is under tenancy and in possession of LRs of Sh. Daya Ram.
27. The court is of the considered view that the petitioner has not concealed about her ownership of upper floors of properties no. 4449 & 4451, Daiwara, Nai Sarak, Delhi. The petitioner has specifically mentioned about the accommodation/rooms/portions situated on upper floors of property no. 4492, Daiwara, Nai Sarak, Delhi, which are also reflected in the site plan appended alongwith the petition. The respondents have not placed any document on record depicting the portion of upper floors of properties no. 4449 & 4451, Daiwara, Nai Sarak, Delhi allegedly concealed by the petitioner and have rather admitted in their rejoinder that portion about shops no.4449, 4450 and 4451 is part and parcel of property of 4492, Daiwara, Nai Sarak, Delhi. The respondents have also failed to produce any document to establish their allegation that the husband of the petitioner is having half E339/2013 Page 24/30 share in property no. 6411, Gali Kalyan, Main Bazar, Katra Bariyan, Delhi, whereas the petitioner has categorically averred that this property belongs to her motherinlaw and the petitioner is in possession of only one room i.e. room no. 8 on third floor. Similarly, the respondents have failed to file any document to establish that entire second floor of property no. 4492, Daiwara, New Delhi is lying vacant, whereas the petitioner has categorically averred that she is in occupation of only one room no.4 on the second floor and the other portion is under tenancy and in possession of LRs of Sh. Daya Ram. Thus, the court holds that the petitioner has been successful in prima facie establishing that she is not having any other reasonably suitable accommodation for her residential use and the respondents have not been able to raise any triable issue on this aspect.
Bonafide requirement
28. It is contended on behalf of the respondents that admittedly, Sh. Sanjay Gupta, brother of the petitioner has not been appointed as guardian of the person and properties of the petitioner. Therefore, Sh. Sanjay Gupta is not competent, empowered or authorized to represent the petitioner in the E339/2013 Page 25/30 present petition. Moreover, there is no allegations regarding dispute with petitioner's husband or children. Neither the husband of the petitioner, nor her children are representing her in the present petition. Secondly, admittedly, the portion in the possession of the respondents has not been partitioned and dimensions of the tenanted premises has not been given. Therefore, the petition is vitiated and untenable. Thirdly, the petitioner has made bald allegations regarding elder brothers of her husband pressurizing the petitioner and her family to vacate the portion occupied by them in H.No. 6411, Gali Kalyan, Main Bazar, Katra Bariyan, Delhi. There is no allegation regarding litigation between the petitioner's husband and her brothers pertaining to the portion in possession of the petitioner and her family. Therefore, there is no credence in the averments regarding the petitioner and her family being forced to vacate the portion occupied by them. Fourthly, the present petition has been filed for lust of exorbitant rent. There is no actual bonafide requirement of the petitioner and her family. Fifthly, the petition is bad on account of nonjoinder of all the legal heirs of Smt. Putli Devi.
E339/2013 Page 26/30
29. Per contra, it is contended on behalf of the petitioner that Sh. Sanjay Gupta has been duly empowered and authorized by the petitioner vide registered GPA dated 07.08.2003, copy of which has been filed alongwith the reply. The provisions of Order 32 Rule 3 CPC are not applicable in the case of the petitioner as she is neither minor, nor a person of unsound mind. Sh. Sanjay Gupta has been representing the petitioner in respect of the tenanted premises since the lifetime of her grandmother. The husband and sons of petitioner have never represented her in respect of matters relating to the tenanted premises and Sh. Sanjay Gupta is fully conversant and abreast of the affairs relating to the tenanted premises. In any case, there is no legal bar in the petitioner being represented by her brother. Secondly, the petitioner has filed complete details and particulars of the portion in possession of the respondents, which is also reflected in the site plan appended alongwith the petition. Thirdly, even apart from the aspect of elder brothers of the petitioner pressurizing the petitioner and her husband to vacate the portion in their possession, the petitioner has established her requirement for personal use. Fourthly, the allegations regarding lust of exorbitant rent are false and baseless. Fifthly, it is denied E339/2013 Page 27/30 that the petition is bad on account of nonjoinder of necessary parties.
30. The court is of the considered view that Sh. Sanjay Gupta has been duly empowered and authorized by the petitioner vide registered GPA dated 07.08.2003, copy of which has been filed alongwith the reply. The provisions of Order 32 Rule 3 CPC are not applicable in the case of the petitioner as she is neither minor, nor a person of unsound mind. In any case, there is no legal bar in the petitioner being represented by her brother. Secondly, the petitioner has filed complete details and particulars of the portion in possession of the respondents, which is also reflected in the site plan appended alongwith the petition. Thirdly, the petitioner has been successful in establishing her requirement for personal use even if the averments regarding she and her husband being pressurized to vacate portion of premises no. 6411, Gali Kalyan, Main Bazar, Katra Bariyan, Delhi are ignored/excluded. Fourthly, the respondents have failed to file any document to establish their allegations regarding the petition being filed due to lust of exorbitant rent. Fifthly, since the court has held that the petitioner is owner of the tenanted premises, the petition is maintainable in the present E339/2013 Page 28/30 form and it is not bad on account of nonjoinder of all the LRs of Smt. Putli Devi.
31. In view of the above discussion, the court is of the view that the respondents have failed to set up any triable issue which requires inquiry or trial. In other words, prima facie there is nothing on record which would disentitle the petitioner of the right of immediate possession in respect of the tenanted premises.
32. Accordingly, the application under Section 25B (4) of Delhi Rent Control Act, 1958, filed by the respondents is dismissed. The petition is allowed and eviction order is passed in favour of the petitioner and against the respondents in respect of two rooms, part of two chajja/balconies i.e. one towards road side and another towards gali situated on the first floor in property bearing no. 4492, Daiwara, Nai Sarak, Delhi110006, as shown in red colour in siteplan attached alongwith the petition. This order shall not be executable before expiry of six months from the date of this order. Parties to bear their own costs.
E339/2013 Page 29/30
File be consigned to Record Room.
Announced in the open court (SANDEEP GARG)
on 15.10.2014 Administrative Civil Judge cum
Additional Rent Controller (Central)
Delhi
E339/2013 Page 30/30
E339/2013
15.10.2014
Pr: Sh. Nikesh Jain, Ld. Counsel for petitioner.
Sh. I.J.S. Mehra, Ld. Counsel for all the four respondents. Vide separate order of even date, application for leave to defend, filed by the respondents is dismissed. The petition is allowed and eviction order is passed in favour of the petitioner and against the respondents in respect of two rooms, part of two chajja/balconies i.e. one towards road side and another towards gali situated on the first floor in property bearing no. 4492, Daiwara, Nai Sarak, Delhi110006, as shown in red colour in siteplan attached alongwith the petition. This order shall not be executable before expiry of six months from the date of this order. Parties to bear their own costs.
File be consigned to Record Room.
(Sandeep Garg) ACJcumARC (Central) Delhi/15.10.2014 E339/2013 Page 31/30