Delhi District Court
Smt. Nirmal Gupta @ Nirmala Gupta vs Sh. Dharmaveer Yadav on 7 November, 2016
IN THE COURT OF MS. SHUCHI LALER, SENIOR CIVIL
JUDGE-CUM- RENT CONTROLLER (SHAHDARA), KKD
COURTS, DELHI
RC/ARC No. 1000/16
In the matter of :
Smt. Nirmal Gupta @ Nirmala Gupta
W/o Sh. Anil Gupta
R/o C4/110-A, DDA Flats,
Keshav Puram, New Delhi
.......Petitioner
Versus
Sh. Dharmaveer Yadav
S/o Late Raj Nand Yadav
R/o H. No. 53/12, Gali No.5,
Arya Nagar, Harijan Basti,
Delhi- 110 092.
.......Respondent
Date of Institution : 05.04.2016
Date of Arguments : 07.11.2016
Date of Pronouncement : 07.11.2016
ORDER
1. Vide this order, the court shall dispose off an application for leave to defend filed by the respondent in reply to the eviction petition under Section 14(1)(e) of DRC Act filed by the petitioner.
2. Brief narration of the facts as disclosed in the petition is as under:-
2.1 That the petitioner is owner/landlady of property RC/ARC No. 1000/16 Nirmal Gupta @ Nirmala Gupta Vs. Dharamveer Yadav Page 1 of 12 pages bearing No. 53/12, Gali No. 5, Arya Nagar, Harijan Basti, Delhi-
92, measuring 150 sq. yards (hereinafter referred to as the property in question).
2.2 That the respondent is a tenanted in respect of one room with common use of latrine and bathroom situated on ground floor of the property in question (henceforth referred to as the tenanted room) at monthly rent of Rs. 2,000/-. 2.3 That the respondent is in arrears of rent w.e.f. 01.04.2015. The petitioner and her husband are aged around 62 years and 63 years and are physically handicapped, so they find it difficult to climb stairs of property bearing no. C-4/110-A, First Floor, DDA Flats, Keshav Puram, Delhi. 2.4 That the elder daughter of petitioner is married to Sh. Rishi Sharma who is doing private job in Noida. The tenanted room is required by the petitioner for bona fide use of herself, her husband, elder daughter and her husband Sh. Rishi Sharma.
2.5 That the petitioner has no other suitable accommodation in Delhi and NCR. The property in question requires renovation as the same is not in habitable condition as there is no kitchen and latrine and bathroom are also common. All tenants except respondent and Sh. Ashok Kumar Rai have vacated the property in question.
Being aggrieved, the petitioner filed the present eviction petition.
3. Summons of the eviction petition in the prescribed proforma as per Schedule III of DRC Act was served upon the respondent. In pursuance of the service of summons, the respondent filed an application for grant of leave to contest the RC/ARC No. 1000/16 Nirmal Gupta @ Nirmala Gupta Vs. Dharamveer Yadav Page 2 of 12 pages Eviction Petition on 04.06.2016.
4. In the application for leave to defend, the averments made by the respondent are as under:-
4.1 That the petitioner has not approached the court with clean hands. The respondent is regularly paying rent @ Rs. 2,000/- pm to the petitioner.
4.2 That the petitioner and her family members for last few months are creating nuissance in the tenanted room by throwing respondent's household articles. 4.3 That the petitioner does not require the tenanted room for bona fide requirement but wants to lease it out at a higher rate. If the leave is not granted, the respondent will suffer irreparable loss or injury which cannot be compensated in any manner.
4.4 That the petitioner has two properties in Arya Nagar and two properties in Keshav Puram. The petitioner is seeking vacation of the tenanted room so that she could let out or sale the same to a builder for enriching herself.
4.5 That the petitioner's daughter is a married lady and is residing with her husband and in laws separately. The petitioner's daughter and son-in-law are working in company KPMG, Gurgaon and they cannot stay in a small house.
In view thereof, respondent has claimed that there are several triable issues involved in the present petition which require adjudication, accordingly, it has been prayed that leave to defend be granted to the respondent.
5. The petitioner has filed reply to the application for leave to defend wherein she has stated that she is owner of property in question and property bearing no. C-4/110-A, First RC/ARC No. 1000/16 Nirmal Gupta @ Nirmala Gupta Vs. Dharamveer Yadav Page 3 of 12 pages Floor, DDA Flats, Keshav Puram, Delhi and there is no other property available with the petitioner. It has been reiterated that the petitioner is not in a position to climb stairs and the tenanted room is required for bona fide use on ground floor.
Remaining material averments have been denied and the petitioner claimed that the respondent has failed to raise any triable issue and prayed for dismissal of application for leave to defend.
6. Rival submissions advanced at bar have been heard and record perused.
7. In order to obtain leave to defend to contest the Eviction Petition, the tenant is required to file affidavit disclosing such facts which would dis-entitle the landlord from obtaining the eviction order. Such facts must be material and substantial and they must be bona fide. Further, it has to be seen that allegations of facts are not meant to delay the disposal of the eviction petition. It is well settled that mere denials for the sake of denials are no ground in the eyes of law and if there is no ground or plea, eviction order has to be passed against the tenant whereas if the facts disclosed by the tenant in his affidavit raise triable issues, then he is entitled for the grant of leave to defend and contest the eviction petition.
8. Clause (e) of Proviso to Sub Section (1) of Section 14 of the D.R.C. Act postulates following conditions which must be satisfied : - (i) That the landlord must be the owner of the property ; (ii) The premises must be required bonafide by the landlord and (iii) Non availability of any other reasonably suitable accommodation.
RC/ARC No. 1000/16 Nirmal Gupta @ Nirmala Gupta Vs. Dharamveer Yadav Page 4 of 12 pages
9. OWNERSHIP OF LANDLORD/PETITIONER The respondent has neither challenged the ownership nor the landlordship of petitioner. Hence, the relationship of landlord-tenant and the title of petitioner with respect to tenanted room stands admitted.
10. BONAFIDE REQUIREMENT AND NON AVAILABILITY OF REASONABLY SUITABLE ACCOMMODATION 10.1 These two ingredients are being dealt with together as they are inter-related to each other. The petitioner has claimed that she requires the tenanted room for bona fide need for residence of herself, her husband and elder daughter and son-in-law. It has been averred that the petitioner and her husband are aged around 62 and 63 years and are physically handicapped, thus, they are unable to climb stairs of their present residence which is situated on first floor. 10.2 The respondent has challenged the bona fide requirement of the petitioner on two grounds-- Firstly, it has been alleged that the petitioner has two properties in Arya Nagar and two properties in Keshav Puram and the second defence is that petitioner's daughter is a married lady who is residing with her husband and in laws separately and she is working in company KPMG, Gurgaon and she cannot stay in the property in question which is a small house. 10.3 The first plea raised by the respondent is that the petitioner has the availability of alternative accommodation, i.e., two properties at Arya Nagar and two properties in Keshav RC/ARC No. 1000/16 Nirmal Gupta @ Nirmala Gupta Vs. Dharamveer Yadav Page 5 of 12 pages Puram. The petitioner has categorically denied that she is the owner of the said properties and has averred that she is the owner of the property in question and the property bearing no. C-4/110-A, First Floor, DDA Flats, Keshav Puram, Delhi wherein she is presently residing.
10.4 No document has been filed on record by the respondent to prove the ownership of the petitioner with respect to the properties situated at Arya Nagar and Keshav Puram. Even the details of said properties have not been disclosed. Self- serving bald averment regarding ownership of some properties raised by the respondent cannot create ground for grant of leave to defend.
10.5 It is well settled that merely negative or vague pleas to put the landlord on proof are not enough and if they are allowed to merit the grant of leave, the whole object of the summary procedure would be defeated.
10.6 It has been observed in judgment titled as Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors. 155 (2008) DLT 383 by Hon'ble Delhi High Court as under:
"Section 25 B was inserted by the Legislature in Delhi Rent Control Act as a special provision for eviction of the tenants in respect of specified category of cases as provided therein. Where a landlord seeks eviction on the basis of bona fide necessity, a summary procedure is provided and tenant has to seek leave to defend disclosing such facts which disentitled the landlord from seeking eviction. Where a tenant pleads, in leave to defend preposterous prepositions and makes such averments which are palpably false and the landlord in his reply affidavit to leave to defend is able to show to the ARC that all facts stated in leave to defend, were palpably false, ARC is not precluded from considering the falsity of such facts on the basis of material placed by the landlord before it. If the tenant in its leave to defend pleads that landlord was owner of another premises with which landlord had nothing to do, mere filing of affidavit is not sufficient. The tenant has to place before the RC/ARC No. 1000/16 Nirmal Gupta @ Nirmala Gupta Vs. Dharamveer Yadav Page 6 of 12 pages learned ARC such documents which show that the landlord was owner of that premises. If no such document is placed on record by the tenant, the learned ARC is not required to consider the ownership of the landlord of such a premises. If the leave is granted on mere assertions that landlord was owner of the premises, of which he is not, then in every case the tenant would get leave by just naming any premises with which landlord has no concern" (Emphasis supplied) 10.7 In the present case, the respondent has just made bald averment that the petitioner is the owner of two properties at Arya Nagar and two properties at Keshav Puram which is not substantiated by any document even the complete details of the properties have not been disclosed. Thus, this defence raised by the respondent does not raise any triable issue. 10.8 The petitioner has categorically explained the non- suitablility of property bearing no. C-4/110-A, First Floor, DDA Flats, Keshav Puram, Delhi for her residence. The petitioner has averred that she and her husband are senior citizens aged around 62 years and 63 years, both are physically handicapped and are suffering from various old age ailments due to which they are unable to climb the stairs. The petitioner has filed disability certificates in this regard. It is well settled that as one reaches old age, it is more convenient and in the interest of general health that the residence is shifted to ground floor. (Reference may be made to the judgment titled as Dev Raj Bajaj Vs. R. K. Khanna, 1996 RLR, 125 and Sh. Kuldeep Mahajan Vs. Smt. Krishna Uppal and ors., 2002 (62) DRJ,
521).
10.9 In the instant case, the petitioner and her husband are senior citizens and are physically handicapped. It cannot be ignored that the petitioner and her husband must be finding it RC/ARC No. 1000/16 Nirmal Gupta @ Nirmala Gupta Vs. Dharamveer Yadav Page 7 of 12 pages difficult to climb stairs. The petitioner and her husband would not find it convenient to reside on the first floor when the property in question situated on ground floor is also owned by them. The desire of the petitioner to reside on the ground floor is justified and cannot be termed mere desire or fanciful. 10.10 Secondly, it has been alleged by the respondent that the elder daughter of the petitioner is married and is residing with her husband and in laws separately. The respondent has further alleged that petitioner's daughter and son in law are working in company KPMG, Gurgaon, so they cannot stay in a small house.
10.11 No doubt, in Indian Society usually after marriage, a daughter leaves her parental home and starts residing in the house of her husband but marriage does not sever the blood relationships and does not extinguish the legal rights of a daughter in her parental property. A married daughter may prefer to reside at her parental home due to certain reasons such as old-age of her parents, financial incapacity, etc. and nevertheless a married daughter as such has a legal right of residence in her parental home. If the married daughter of the petitioner and her son in law wish to reside with the petitioner and are willing to take responsibility/provide assistance to petitioner and her husband in their old age, the tenant cannot question it and cannot compel them to reside separately. 10.12 The respondent has also contended that the petitioner's daughter and her son in law are working in a company KPMG, Gurgaon and they cannot stay in a small house.
10.13 It is settled proposition of law that neither the court RC/ARC No. 1000/16 Nirmal Gupta @ Nirmala Gupta Vs. Dharamveer Yadav Page 8 of 12 pages nor the tenant can dictate to the landlord as to how he should live and to what use he should put each and every portion of his property. It is not for the tenant to dictate terms to the landlord and suitability has to be seen from convenience of landlord and his family members and the landlord is the best judge of his requirements. It is not for the Court to hold an inquiry as to whether the property in question meets the status/standard of petitioner and her family members.
10.14 The requirement of tenanted room by the petitioner for the purpose of her residence cannot be brushed aside as mere desire or fanciful requirement. Therefore, judged from any angle, the requirement of the petitioner for the tenanted room cannot be termed mala fide or with oblique motives. The respondent has not been able to show that the petitioner has any other reasonable, suitable accommodation available with her for her residence as well as that of her family members.
11. OTHER DEFENCES The additional defences which have been raised by the respondent, in the application for leave to defend, are discussed herein below:-
11.1 That the petitioner wants to re-let the tenanted room at higher rate of rent.
11.1.1 The respondent has alleged that the petitioner is seeking vacation of tenanted room so that she could let out or sale it to a builder for enriching herself. The said contention has denied by the petitioner in her reply to leave to defend RC/ARC No. 1000/16 Nirmal Gupta @ Nirmala Gupta Vs. Dharamveer Yadav Page 9 of 12 pages application.
11.1.2 It is held by Hon'ble High Court of Delhi in Vinod Kumar Bhalla Vs. Sh. Nanak Singh 1982 (2) RCR (Rent) 715 that in all applications for leave to defend the common defence raised by almost all the tenants, is that the landlord wanted to enhance the rent or to sell the property after getting it vacated.
It was observed by the High Court that such types of allegations are without any foundation and that after an order of eviction is passed under section 14 (1)(e), the tenant is granted six months time to vacate the premises and the landlord is required to occupy the same within two months and the landlord is further dis-entitle for re-letting or alienating the whole or any part of the premises within three years from the date of obtaining possession from the tenant. Thus, the landlord is not in a position either to sell or re-let the tenanted premises for a period of three years and if a landlord does sell or re-let the premises within the said period then the tenant may proceed against the landlord for restoration of the possession under section 19 of the Act.
11.1.3 A similar observation was made in judgment titled as Krishna Chopra & Anr. Vs. Smt. Raksha, 2000 Rajdhani Law Reporter 83.
11.1.4 Thus, on the basis of the above said case-law the contention of the respondent is rejected as the same is a mere assertion without any substance. Moreover the contention of the respondent is not tenable because protection / remedy is available / provided for the tenant under the DRC Act itself as he can file petition for repossession if the premises is transferred by the landlord after evicting the tenant, but certainly RC/ARC No. 1000/16 Nirmal Gupta @ Nirmala Gupta Vs. Dharamveer Yadav Page 10 of 12 pages the leave cannot be granted solely on this ground.
Thus, this defence raised by the respondent is a sham defense and it does not raise any triable issue.
11.2 That the respondent will suffer irreparable loss or injury if leave is not granted.
11.2.1 The respondent has averred that he belongs to economically weaker section and if leave is not granted to him, he will suffer irreparable loss or injury which cannot be compensated in any manner. The said contention has also been denied by the petitioner in her reply to the leave to defend application.
11.2.2 There is no provision in the DRC Act to evaluate comparative hardships and comparative need between landlord and tenant for deciding eviction petition. (Harbhajan Dass Vs Tilak Raj Mehta 1980 RCJ 780 Delhi). Even in case titled as P.S. Pareed Kaka & Ors. Vs. Shafree Ahmad Saheb AIR 2004 SC 2049, the Hon'ble Apex Court held that comparative hardship of tenant is of little consequence.
Thus, even this defence raised by the respondent does not raise any triable issue.
CONCLUSION In the light of aforesaid discussion, the court is of the opinion that the pleas taken by the respondent have failed to raise any triable issue. The contents of the application for leave to defend have failed to rebut the presumption of bona fide qua the requirement of the petitioner. The application for leave to RC/ARC No. 1000/16 Nirmal Gupta @ Nirmala Gupta Vs. Dharamveer Yadav Page 11 of 12 pages defend filed by the respondent is, accordingly, dismissed.
Consequently, eviction order is passed in favour of the petitioner and against the respondent. Respondent is directed to hand over vacant and peaceful possession of one room with common latrine and bathroom situated on ground floor of the property bearing No. 53/12, Gali No. 5, Arya Nagar, Harijan Basti, Delhi- 92, measuring 150 sq. yards as shown in red and yellow colour in the Site Plan which is annexed along with the petition.
Further, the petitioner shall not be entitled to obtain the possession of the aforesaid tenanted room from the respondent before expiry of period of six months from the date of passing of this order as prescribed u/s 14 (7) of the DRC Act. The eviction petition under Section 14 (1) (e) r/w section 25-B DRC Act is accordingly disposed off. No order as to costs.
File be consigned to Record Room.
Announced in the open court (Shuchi Laler)
Dated: 07.11.2016 SCJ/RC (Shahdara)
Karkardooma Courts, Delhi
RC/ARC No. 1000/16 Nirmal Gupta @ Nirmala Gupta Vs. Dharamveer Yadav Page 12 of 12 pages