Delhi District Court
Kamla vs Hari on 18 January, 2014
1
IN THE COURT OF SH. SHAILENDER MALIK, LD. SCJ/RC/NW/ROHINI
COURTS/DELHI
E9/13
KAMLA
W/O SH. CHATTARLAL
R/O BD34B,SHALIMAR BAGH
DELHI110088
....PETITIONER
VERSUS
HARI
S/O SH. SULTAN SINGH
R/O FLAT NO. 607
GROUND FLOOR, BLOCK NO.31,
MCD COLONY, JAHANGIRPURI
DELHI110033
....RESPONDENT
Date of Institution : 24.07.2013
Date of reserving judgment : 18.01.2014
Date of announcing judgment:18.01.2014
J U D G M E N T :
1. This order of mine will dispose off the application filed U/s 25B(4) of DRC Act seeking leave to context the eviction petition filed under the provision of Sec. 14(1)(e) of DRC Act. Petitioner has filed the present 2 petition seeking eviction U/s 14(1)(e) of DRC Act in respect of a flat no. 607, Ground Floor, Block 31, MCD Colony, Jahangirpuri (tenanted premises) comprised of two rooms, bath room, toilet and kitchen let out to respondent for monthly rent of Rs. 3200/ beside other charges on 16.6.08 under an oral tenancy. Petitioner has alleged that the respondent has not been making the payment of rent since Nov. 2011. It is stated that petitioner is a senior citizen and the absolute owner of the above said premises having purchase the same from erstwhile owner vide registered GPA, Agreement to Sell, affidavit, Receipt, Possession letter and Will etc all dt. 17.4.06. It is stated that respondent had approached the petitioner and her husband for letting out he above said flat and accordingly petitioner inducted the respondent as tenant in the tenanted premises for monthly rent of Rs. 3200/ excluding other charges w.e.f. 16.6.08. It is stated that the respondent has been making the payment of rent earlier to the petitioner however since Nov.2011 respondent has stopped making the payment of rent and is habitual defaulter in payment of rent. Moreover respondent stated to have not made the payment of electricity bill.While stating various facts in the petition it is stated that petitioner is presently residing in a LIG flat at Shalimar Bagh whereas he has seven other family members including her husband two sons, one widow daughter and a married grand son as well as his wife. Whereas other two daughters of petitioner are married and are living in their matrimonial home but frequently keep on visiting the house of the petitioner. It is stated that one of her daughter who after death of her husband has been staying with her whereas one of the son of the petitioner is at marriageable age and petitioner and her husband is looking for suitable match for him. In such circumstances the accommodation presently under their occupation is inadequate for their residence therefore petitioner bonafidely requires the tenanted premises for her personal need and requirement. It is stated that though respondent is defaulted in payment of rent and still Rs. 57600/ are outstanding and respondent can be liable to be evicted under the provision 3 of Sec. 14(1)(a) of DRC Act however petitioner while keeping his right to institute the petition in that provision has filed the present petition U/s 14(1)(e) of DRC Act seeking eviction of respondent from the tenanted premises on the ground of her bonafide need and necessity.
2. After service of the summons in prescribed form respondent has filed the present application seeking grant of leave to defend the present petition on the ground that petition is not maintainable as property in question comes under the J.J.Slum area and therefore petition can not be instituted without taking permission under Slum Area (Improvement & Clearance) Act. It is stated that the petitioner has been occupying the tenanted premises since May 2005 whereas petitioner has purchased the same in year 2006. It is stated that the petitioner has failed to show any reasonable ground for bonafide requirement and sole object of the petitioner is to evict the respondent on vague and fabricated facts. It is stated in the affidavit annexed with the application that present petition is a misuse of the process and petitioner has no locus standi to file the present petition as there is no landlord/tenant relationship between the petitioner and respondent. Respondent stated to have been occupying the tenanted premises since 2005 under the oral tenancy of one Sanjay and respondent has been making the payment of rent to said Sanjay whereas petitioner purchased the premises in question in year 2006. It is stated that infact respondent has been regularly making the payment of rent to said Sanjay and present petition is based on fabricated facts.
3. In reply filed on behalf of petitioner an objection is taken that respondent has failed to raise any triable facts and all the grounds taken are on false, baseless and on hypothical facts. It is stated that respondent has taken a false plea that there is no landlord tenant relationship between petitioner and him whereas respondent has given a statement before the police officials of PS Shalimar Bagh undertaking therein regarding the 4 incident dt. 15.12.12 and has apologize for his misconduct and also undertook to vacate the premises by 25.12.12. Regarding it a DD report no.52B was lodged in PS Shalimar Bagh. Similarly the plea that petition can not be filed without taking permission under the Slum Area Act is also not sustainable because property in question does not come under the Slum area and this fact is established from the information received under the RTI Act wherein it was informed that the area in which tenanted premises is situated does not come in slum notified jurisdiction. Petitioner has also taken the plea that application for leave to defend is belated by one day and respondent has failed to raise any triable issue or any facts warranting for grant of leave to defend.
4. I have heard Ld. Counsel for parties and have gone through the record carefully and also gone through the written arguments filed on behalf of respondent.
5. At the very outset it is necessary to reiterate the basic preposition of law regarding deciding the application for grant of leave to defend in an eviction petition filed U/s 14(1)(e) of DRC Act, for being entitled to grant of leave to defend the petition, respondent is required to establish "triable facts" and those facts which are reasonable to convince the court that defence taken by the respondent is bonafide and petitioner may not be in a position to get relief in the eviction petition.
6. Being guided by the said preposition of law in mind if we appreciate the grounds taken by the respondent, the first plea taken by the respondent is that there is no landlord tenant relationship between petitioner and respondent as respondent has been occupying the tenanted premises since 2005 as tenant of one Sanjay whereas petitioner has purchased the property in question in the year 2006. To examining this plea it is very much evident that respondent has failed to explain as to who 5 is Sanjay whom respondent has claimed to be his landlord. Neither the parentage nor any address etc. is mentioned in the application being necessary details of said Sanjay to be as landlord of respondent. It is admitted case of the parties that petitioner has purchased the property in question under the registered GPA, Agreement to Sell et c. dt. 17.4.06. If according to the respondent petitioner is not his landlady then respondent is obliged under the law to explain as to who is owner/landlord and to whom he has been making the payment of rent. Reference in this regard can be given of the judgment in case "Rajender Kumar and Ors. Vs. Smt. Leelawanti" 155(2008) DLT 383 wherein it was held that where tenant denies the ownership of landlord, he is obliged to disclose who was owner/landlord and to whom rent was being paid. There is no documentary evidence placed on record by the respondent showing any payment of rent to said Sanjay. Thus apparently the plea taken by the respondent is not only vague but is not sustainable in the facts.
It is further argued by Ld. Counsel for respondent that petitioner can not be claimed to be owner of the tenanted premises as it was a lease hold property having purchased by the petitioner from documents like GPA, Agreement to Sell etc. This argument of Ld. Counsel for respondent is also not sustainable, firstly because of sale documents GPA is registered, coupled with possession letter, Agreement to Sell and Will etc. Moreover Ld.Counsel for petitioner has rightly relied upon the judgment of Hon'ble High Court of Delhi in "Jiwan Lal Vs. Gurdial Kaur & Ors"1995 RLR 162 wherein it was held that in an eviction petition U/s 14(1)(e) DRC Act landlord has not to prove the ownership in absolute terms. Tenant can not deny the ownership of a person who inducted him. Reliance has also been placed of the judgment of Apex Court in "Smt. Shanti Sharma & Ors. Vs. Smt. Red Prabha 33(1987) DLT 80 wherein it was observed by Hon'ble Apex Court as under:
" Before us on the basis of language of Section 14(1)(e) the learned counsel for the appellant contended that in order to get a decree for 6 eviction on the ground of bonafide requirement the landlord must establish that he is the owner such property and learned counsel attempted to contend that where the property is built up on a plot of land taken on lease from the Delhi Development Authority it could not be said that the landlord is the owner of the property and on this basis an attempt was made to contend that no eviction could be sought on the ground of bonafide requirement. Although learned counsel had to concede that in the Act itself the word 'owner' has not been defined and in the modern context it could not be contended that merely because the property situated on a plot of land taken on long lease that the landlord could not be said not be the owner"
In this regard reference an also be given of judgment of Delhi High Court in "B.K.Gupta Vs. Sudershan Chaudhary",2000(1) RCR 53 wherein it was held that even if premises was allotted to the landlord by the Govt. on hire purchase basis and same is let out to the tenant, tenant can not take a plea that landlord is not the owner of the tenanted premises within the meaning of Sec. 14(1)(e) of DRC Act. Moreover it is nowhere disputed by the respondent that petitioner has purchased the property in question and there are certain documents in the shape of DD no.52B and 74B dt. 15.12.12 of PS Shalimar Bagh as well as statement of the respondent wherein respondent has admitted the petitioner to be his landlady. In such circumstances I find that plea of the respondent is not sustainable.
The next plea taken by the respondent is that premises is in the slum area and therefore petition is not maintainable unless permission is taken from the competent authority under Slum Area Act. This plea is also factually incorrect and has been rightly controverted by relying upon the information taken by the petitioner under the RTI Act from the concerned department wherein it is stated that the area where the tenanted premises is situated does not fall within the slum notified area U/s 3 of Slum Area (Improvement & Clearance) Act 1956.
7. Thus for the reasons stated in the application I do not find any merits in the application. Hence application U/s 25B(4) of DRC Act 7 seeking leave to context the eviction petition is dismissed. As a consequences thereof eviction petition is allowed. Respondent is hereby evicted from the tenanted premises i.e. Flat bearing no. 607, Ground Floor, Block31, MCD Colony, Jahangirpuri, Delhi as shown in the site plan annexed. Accordingly Eviction Petition is allowed. File be consigned to record room.
Announced in the open court On 18.01.2014 (SHAILENDER MALIK) SCJ/RC,NW/ROHINI/DELHI 8 E9/13 18.01.14 Present. None.
Vide my separate judgment of even date application U/s 25B(4) of DRC Act seeking leave to context the eviction petition is dismissed. As a consequences thereof eviction petition is allowed. Respondent is hereby evicted from the tenanted premises i.e. Flat bearing no. 607, Ground Floor, Block31, MCD Colony, Jahangirpuri, Delhi as shown in the site plan annexed. Accordingly Eviction Petition is allowed. File be consigned to record room.
(SHAILENDER MALIK) SCJ/RC,NW/ROHINI/DELHI 18.01.14