Delhi District Court
Smt. Swarn Lata Abrol vs 2 on 29 January, 2007
1
IN THE COURT OF SHRI B.S.CHUMBAK:
ADDL.RENT CONTROLLER: DELHI
E-419/06
1. Smt. Swarn Lata Abrol
Wd/o late Sh. Dev Prakash Abrol
R/o M-27, First floor,
Greater Kailash Part-I Market
New Delhi-110048.
2.Dr. Sunil Abrol
S/o laste Sh. Dev Prakash Abrol
R/o M-27, First floor,
Greater Kailash Part-I Market
New Delhi-110048
3.Mrs. Pamela Kapur
W/o Sh. Vijay Kapur
D/o late Sh. Dev Prakash Abrol
R/o R-156, Greater Kailash Part-I,
New Delhi-110048.
4.Mrs. Meenakshi Nijhawan
W/o Sh. Sudhir Nijhawan
D/o late Sh. Dev Prakash Abrol
R/o 35, Navjivan Vihar,
New Delhi-110 017.
Plaintiff nos. 1,3 nd 4 are through
their attorney Dr. Sunil Abrol
Plaintiff no.2 herein
...Plaintiffs
Versus
2
Sh. Madan Gopal Singh
S/o Sh. Sohan Singh
Earlier Proprietor of M/s Elegance and now of
M/s Gurunanak Estates and Business Centre
Shop no. M-27-C, Ground Floor, Rear Portion,
Greater Kailash Market-I, New Delhi-110048.
Second Address
R/o R-84, Greater Kailash Part-I
New Delhi
...Respondent
Petition under section 14-D r/w section 25-B of
Delhi rent Control Act.
Date of institution:19.01.07
Date of judgment:29.01.07
ORDER
1. Vide this order I shall propose to dispose off an application for seeking leave to defend filed by the respondent.
2. Brief facts arising out of this case are that the property bearing no. M-27, Greater Kailash Part I, New Delhi was originally owned by the husband of the petitioner Sh. Dev Prakash Abrol. During his life time Sh. Dev Prakash Abrol had let out the portion of the premises i.e. one shop measuring 22' x 7' on rear ground floor portion of the property no. M-27-C 3 Market, Greater Kailash, New Delhi as shown in red colour in the site plan attached by virtue of an agreement dated 30.01.1987. Sh. Dev Prakash Abrol retired as Under Secretary from Government of India and expired on 08.12.2001, leaving behind his wife, one son and two daughters and after the death of Sh. Dev Prakash Abrol the respondent/tenant attorned all the petitioners as owner/landlord of the property in question. It is further averred that property in question is situated in the market and was let out for residential-cum- commercial purposes. Petitioner no.1 (widow of Dev Prakash Abrol) and her son are in occupation of the upper floor. Petitioner no.1 is about 72 years of age and she is suffering from various diseases, i.e. arthritis, bronchial Asthma etc, The condition of the petitioner no.1 has worsened to such an extent that she has been advised by the doctors not to climb the stairs without any support. Petitioner no.1 has been residing on the first floor of the property since its purchase by her husband and continued to stay on the first floor even after his death alongwith other family members dependent upon her. Petitioner no.1 has no other suitable alternate accommodation to live on the ground floor and she has no option but to file the eviction petition 4 against the respondent on the said ground i.e. u/s 14-D of DRC Act (hereinafter referred to as the Act). It is further averred that the premises is residential in nature but has been converted to a shop, therefore can be used as a residence by the petitioner no.1 and is bonafidely required by her in view of his old age and ill health.
3. Summons of the petition were served upon the respondent under the prescribed format provided under schedule IIIrd of DRC Act and in pursuance of the process served upon the respondent he filed application for leave to defend supported with an affidavit stating therein that eviction petition filed against the respondent is totally baseless, frivolous based on concocted facts. Eviction petition u/s 14- D of DRC Act is not maintainable on behalf of all the petitioners as the petition under section 14-D is maintainable only by widow but the present petition is filed by the widow as well as by her son and two daughters. In the petition it is also stated that present petition has been filed through petitioner no.2 who is attorney of petitioner no. 1,3 and 4. However, the present petition has been signed and filed by petitioner nos. 1 and 2 as attorney of petitioner no.3 and 4 and the contradictory 5 averements which has been mentioned in the petition creates a doubt about the authenticity of the signatures of the petitioner no.1 on the eviction petition and this ground alone is sufficient to grant leave to defend the present petition. It is further averred that GPA obtained by petitioner no.2 in the month of February 2002 and the present case is filed on 20.01.05 i.e after expiry of three years which itself is not maintainable. It is further averred that on bare perusal of the medical records it clearly goes to show that she has been allegedly suffering from bronchial asthma since the year 1993 and the petitioner has not chosen to prefer any eviction petition for a period of 11 years on the ground of illness and another medical record furnished by the petitioner on record is totally insufficient and seems to be fabricated and manipulated with the sole aim to got evicted the tenanted premises. It is further submitted that demise premises is commercial in nature and has been let out to the respondent for the said purpose only, therefore it cannot be used as a residence by the petitioner. Petitioner is in possession of another shop which is adjacent to the demised shop, which is lying vacant.
64. It is further submitted that the area of the premises lying vacant on the ground floor of the premises in dispute which is available with the petitioner is measuring 5'.7"x22.0' and 12'.9" x 22'.0 duly attached with bothroom and WC i.e bigger in size then the tenanted premises. It is further averred that petitioner also in possession of one room which is lying vacant on the mezzanine floor and at present is being used as study room. In view of the aforesaid averments it is submitted that accommodation available with the petitioner is very much sufficient to meet out the requirement of all the petitioners including petitioner no.1. In view of the aforesaid submissions it transpires that petitioner no.1 has no intention to shift on the ground floor however, her sole aim is to got the tenanted premises evicted and then sell the same on higher rates and requested for granting leave to defend and also dismissal of the present petition.
5. Petitioner filed reply to the application for leave to defend controverting therein all the allegations as alleged in the application for leave to defend and reaffirm the contents of the petition are true and correct.
76. Rejoinder to the reply to the application for leave to defend was also filed by the respondent and he again controverted all the allegations as alleged in the reply to the application for leave to defend and reaffirm the contents of the application for leave to defend as true and correct. Thereafter case was fixed for arguments on the application for leave to defend.
7. I have heard arguments on behalf of Ld. Counsel for both the parties. Ld. Counsel for the respondent submitted that before seeking eviction u/s 14-D of DRC Act the petitioner has to prove that the premises in question was let out by her husband or by her and is required by her for her own residence and also placed his reliance on the provisions of 14-D of DRC Act which reads thus:
"Right to recover immediate possession of premises to accrue to a widow:
(1)Where the landlord is a widow and the premises let out by her, or by her husband, are required by her for her own residence, she may apply to the Controller for recovering the immediate possession of such premises. (2)Where the landlord referred to in sub-
section (1) has let out more than one premises, it shall be open to her to make an application under that sub section in respect of any one of the premises chosen by her."
88. In the present case admittedly the premises was let out by Sh. Dev Prakash Abrol husband of petitioner no.1 and father of petitioner no. 2 to 4. It is also not denied that he died on 8.12.01 leaving behind his wife (widow), one son and two daughters. But on perusal of the provisions of 14-D of DRC Act the special right to seek the immediate possession of the tenanted premises is only provided to the widow but not to other LR's of deceased Dev Prakash Abrol who has been impleaded as petitioner nos. 2 to 4. It is further submitted that adjacent to the tenanted premises another shops having more area then the tenanted premises is lying vacant and is in possession of the petitioners. The tenanted premises was let out for commercial purposes and since then same is being used for the said purpose. Many other commercial activities are being done in the adjacent properties therefore, petitioner is no more willing to reside in the shop in question and filed the present petition with the sole aim to got evicted the shop in question and to sold the same on higher rate. The tenanted premises is not even fit for habitation. Many photographs are also placed on record showing thereby that the tenanted premises is situated within the market and all the 9 adjoining properties has been regularly used for the commercial purpose. Ld. Counsel for the respondent also placed his reliance on a decided case cited as Santosh Devi Soni Vs. Chand Kiran Civil Appeal no. 412/00 decided on January 2000 wherein it is observed as under:
"In the cases where additional accommodation is asked for, in proceedings under the Delhi Rent Control Act normally leave to defend should not be refused."
9. Ld. counsel for the respondent also placed his reliance on a decided case cited as Surjit Singh Kalra Vs. Union of India and another (1999) 2 Supreme Court Cases 87 wherein it is observed as under :
"Tenant cannot claim right to contest an application for eviction on the grounds specified in section 14(1)(e) against the classified landlords falling under sections 14-B to 14-D. Acceptance of such claim would practically obliterate the purpose and object of classification of landlords under sections 14-B to 14- D who are carved out from the general landlords for creating special classes of landlords with specified rights to recover immediate possession of the premises let out by them."
10. It is further held that:
"After amendment by Act 57 of 1988 the remedy under section 14(1)(e) is 10 available only to landlords in general or the landlords who are not classified landlords under section 14-B to 14-D and the classified landlords have been conferred with certain rights which are different from and independent of the rights under Section 14(1)(e) of the said Act and it is clearly held that section 14-B to 14-D are markedly different from section 14(1)(e)."
11. Ld. counsel for the respondent further placed his reliance on a decided case cited as Liaq Ahmed and other Vs. Habeeb-Ur-Rehman (2000) 5 Supreme Court Cases 708 wherein it is observed as under:
"Leave to defend must be granted where tenant discloses grounds which prima facie are not baseless, unreal or unfounded. Law envisages the disclosure of facts and not the proof of the facts."
12. Ld. Counsel for the respondent further placed his reliance on a decided case cited as Inderjeet Kaur Vs. Nirpal Singh 89 (2001) DLT 27 (SC) wherein it is observed as under:
"When leave to defend is sought by the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in their opinion should be sufficient to grant leave. It is further observed that a test is a test of triable issue and not the final 11 success in the action"
13.In view of the observations made by their lordships in the aforesaid decided cases and also on perusal of the pleadings as well as averments made by the respondent in the application for leave to defend it is submitted that many triable issues have been raised which can only be decided after leading evidence from both the sides and requested for granting leave to defend.
1. On the other hand Ld. Counsel for the petitioner submitted that Ld. Counsel for the respondent placed his reliance on the aforesaid decided cases and the observations made are relating to the petition u/s 14(1)(e) of DRC Act i.e. filed on the bonafide grounds but the facts of the present case are not similar to the facts of the cases upon which the Ld. Counsel for the respondent has placed his reliance however in Surjit Singh Kalra Vs. Union of India and another case it is clearly held that the tenant cannot claim right to contest an application for eviction on the grounds specified in section 14(1)(e) against the classified landlords failing under sections 14-B to 14-D. In the present case the petitioner has only to prove that the premises in question was let out either by her husband during 12 his life time or by the widow herself and in the present case it is not denied by the respondent that premises was let out by the husband of the petitioner no.1 (widow) and her husband died on 08.12.01. The premises was let out by virtue of lease deed/rent deed dated 30.1.87. The pleas taken by the respondent that right u/s 14-D of DRC Act is a personal right to the widow only and the present petition filed by the widow alongwith other LR's i.e. petitioner no.2 to 4 is and also that premises is let out for non residential purposes and the provisions of section 14-D of DRC Act not applicable is not tenable in law and placed his reliance on a decided case cited as Mohinder Prasad Jain Vs. Manohar Lal Jain II (2006) SLT 608 which it is observed that:
"The provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 as amended declared as constitutionally invalid and as a consequence restore the original provisions of the Act which were operating before coming into force of the amendment. The net result is that a landlord under the Act can seek eviction of the tenant from a non residential building on the ground that he requires it for his own use. It is further held that it is well settled that one of co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners."13
15. Ld. Counsel for the petitioner also placed his reliance on another decided case cited as Nathi Devi Vs. Radha Devi Gupta 2005 AIR SCW 287 wherein it is observed as under:
"Section 14A to 14D carve out an exception to section 14(1)(e) of the Act. The said provisions envisage recovery of immediate possession of the tenanted premises by (i) the members of Armed Forces,(ii) the Central Government and Delhi Administration employees who have retired or who would be retiring and (iii) where the landlord is a widow. All the aforementioned provisions refer to the immediate necessity of the landlord. The provisions contained in sections 14A to 14D being in the nature of exception to the main provision, they must be construed strictly. By expressly providing that the premises must be one let out by her or by her husband, the legislature has clearly excluded from the purview of the said provisions "premises let out by any other person" even if in course of time the widow may have become its landlord the provision is to be read as it is. This expression, "let out by her or by her husband" is not an expression which permits of any ambiguity. It is to be given its normal meaning. So understood the conclusion is inescapable that the legislature intent was only to confer a special right on a limited class of widow viz. The widow who let the premises or whose husband had let the premises before his death and which premises the widow requires 14 for her own use. It is further held that even if there exists some ambiguity in the language or the same is capable of two interpretations, it is the interpretation which serves the object and purport of the Act must be given effect to. In such a case the doctrine of purposive construction should be adopted."
16.Ld. counsel for petitioner further placed his reliance on a decided case cited as Fibre Bond (Sales) Pvt. Ltd. Vs. Chand Rani AIR 1993 Delhi 201 wherein it is held that:
"Widow, a co-landlady of the premises can initiate eviction proceedings against tenant in absence of other co-owners also and for seeking eviction under section 14 D of DRC Act the Hon'ble Supreme Court in a case EMC Steel Ltd. read with S.S. Kalra's case held that a widow has to establish that the premises had been "let out by her" or "by her husband" and the premises is required for her own use."
17. In the present case this fact is not denied by the respondent that premises were let out by the husband of the petitioner no.1 (widow) and she clearly stated that due to her old age and ill health is bonafidely in need of the premises as she is not in possession/occupation of another sufficient 15 alternate accommodation on the ground floor to meet out her day to day requirements. However, it is not denied that another shop measuring 22' x 6', store measuring 13' x 5.7', store II measuring 6'x3' and toilet cum bathroom 3' x10' are also lying vacant on the ground floor but the premises lying vacant alone is not sufficient to meet out the requirement of petitioner no.1 and after seeking eviction of the tenanted premises alongwith the premises already lying vacant would be sufficient to serve the purpose of the petitioners and without vacating the tenanted premises, the premises already lying vacant cannot be used for the said purpose and in such circumstances the plea taken by the respondent that the tenanted premises are not bonafidly required by the petitioner no.1 on the ground that she is in occupation of sufficient accommodation is not tenable in law.
18. In the Fibre Bond (Sales) Pvt. Ltd. Vs. Chand Rani case it is further held that :
"If an application is filed under section 14-B, 14-C or 14-D, tenant's right to contest the application is narrowed down and its restricted to the parameters of the respective sections. He cannot widen the scope of his defence by relying upon section 14(1)(e)."16
19. In view of the observations made by their lordship in the aforesaid decided cases and also taking into consideration the facts and circumstances of this case Ld. Counsel for the petitioner submitted that respondent failed to disclose any triable issues between the parties and requested for dismissal of the application for leave to defend.
20. After hearing arguments I also perused the material available in the file and the observations made by their lordships in the aforesaid decided cases upon which the Ld. Counsel for the petitioner placed his reliance wherein it transpires that admittedly the demise premises was let out by the husband of petitioner no.1 (widow). Husband of petitioner no. 1 died on 0812.01 and this fact is duly admitted by the respondent. Only pleas taken by the respondent that present petition is filed by the widow of Sh. Dev Prakash Abrol alongwith his son and daughter and that the premises was let out exclusively for non residential purposes and also the demise premises is not bonafidely required by the petitioner is clearly rebutted by the petitioner by placing his reliance on decided cases titled as 17 Surjit Singh Kalra Vs. Union of India and Mohinder Prasad Jain Vs. Manohar Lal Jain already discussed. On perusal of the observations on a decided case tilted as Surjit Singh Kalra Vs. Union of India upon which respondent also placed his reliance which clearly goes to show that the tenant cannot claim right to contest an application for eviction on the grounds specified in section 14(1)(e) against the classified landlords falling under sections 14-B to 14-D of DRC Act. It is also observed in Mohinder Prasad Jain Vs. Manohar Lal Jain that it is well settled that one of co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. In Nathi Devi Vs. Radha Devi Gupta case it is clearly stated that the provisions contained in sections 14A to 14D being in the nature of exception to the main provision, they must be construed strictly and in the Fibre Bond (Sales) Pvt. Ltd. Vs. Chand Rani case it has been specifically held that a widow, a co-landlady of the premises can initiate eviction proceedings against the tenant in the absence of other co-owners also and in view of the aforesaid observation and on perusal of the pleadings from both the sides as well as the facts disclosed by the respondent in his application for leave to defend I 18 am of the considered view that all the pleas taken by the respondent for seeking leave to defend of the present petition are fully explained and rebutted. Accordingly, the application for leave to defend filed by the respondent has not raised any triable issues and hence dismissed.
21.Consequent upon dismissal of the present application the petitioner has also become entitled for seeking eviction of the tenanted premises. Accordingly, an order for eviction in favour of the petitioner is passed and against the respondent directing him to hand over the vacant peaceful possession of tenanted premises i.e. one shop admeasuring 22' x 7' on rear ground floor portion of the property no. M-27-C Market, Greater Kailash, New Delhi as shown in red colour in the site plan attached to the petitioner. Petition is disposed off accordingly,. No order as to costs. File be consigned to the Record Room.
(B.S. CHUMBAK) ADDL.RENT CONTROLLER DELHI ANNOUNCED IN THE OPEN COURT ON 29.01.07