Delhi District Court
Smt. Roshan Ara Begum vs Smt. Reena Mathur on 25 May, 2015
IN THE COURT OF SHRI SANDEEP GARG: ADMINISTRATIVE
CIVIL JUDGE CUM ADDITIONAL RENT CONTROLLER
(CENTRAL) : DELHI
E330/2013
Unique ID No : 02401C0262722013
In the matter of:
Smt. Roshan Ara Begum,
W/o Late Sh. AtiqurRehman,
R/o 5AtaUrRehman Lane,
Civil Lines, Delhi.
....Petitioner
Versus
1. Smt. Reena Mathur, and
2. Sh. Rajat Mathur,
Legal Representatives of
deceased tenant Sh. Purushottam Narain Mathur,
Both R/o 1530, 1st Floor, (Left Hand Side),
Church Road, Kashmere Gate,
Delhi110006.
.....Respondents
O R D E R:
1. Vide this order, an application for leave to defend, filed on behalf of both the respondents under Section 25B (4) of The Delhi Rent Control Act, 1958 (hereinafter referred to as DRC Act, 1958) seeking leave to E330/2013 Page 1/37 contest the present eviction petition is disposed of.
2. The present eviction petition has been filed by the petitioner namely Smt. Roshan Ara Begum against the respondents namely Smt. Reena Mathur and Sh. Rajat Mathur. It is averred that the husband of the petitioner, Late Sh. S.H. AtiqUrRahman was owner of various residential and commercial properties in Delhi which were bequeathed to his legal heirs, vide duly notarized Will dated 26.04.1996 and by virtue of the said Will, the petitioner became owner of the tenanted premises which comprises of one residential flat bearing Municipal No. 1530, Ward No.1, Church Road, Kashmere Gate, Delhi110006, on first floor comprising of one big hall, two rooms, kitchen, toilet, open verandah in front facing main road and one balcony at the back side with common stair case leading to first floor as shown in red colour in the site plan. The tenanted premises was let out to the deceased tenant and at present under occupation of legal representatives of the deceased tenant for residential purposes and is being used and occupied by the widow, son and daughterinlaw of deceased tenant. The rate of rent of the tenanted premises is Rs. 700/ per month excluding water and E330/2013 Page 2/37 electricity charges, which are directly being paid by the LRs of deceased tenant as per actual consumption. The property tax of the tenanted premises is being paid by the landlady.
3. The tenancy is old and prior to deceased tenant, it was in the name of Smt. Rajeshwari Mathur, mother of deceased tenant, Purushottam Narain Mathur. The petitioner is not aware, whether any written rent agreement was executed at the inception of tenancy or not. The deceased tenant and present occupants also have carried out substantial additions and alterations in the tenanted premises without the consent, authority of the landlady, thereby changing the appearance of the entire tenanted premises. The deceased tenant has covered the entire open verandah, facing main road and burdened the entire structure with extra load, as well as diminishing the value of the property. The deceased tenant/present occupants have also erected wooden partition in the main hall of the tenanted premises and converted the same into three small rooms. The deceased tenant/present occupants have removed the grill of the balcony at the back side of the tenanted premises and have illegally encroached upon the open terrace of E330/2013 Page 3/37 another portion of property bearing Municipal No. 1532, First Floor, Church Road, Kashmere Gate, Delhi, also owned by the landlady/petitioner.
4. The tenanted premises is required for bonafide by the landlady/petitioner, who is its owner, for herself and for other members of the family dependent on her for occupation as a residence and the landlady/petitioner has no other reasonably suitable residential accommodation. The mutation and sub division of the properties, so bequeathed to his legal heirs were carried out, vide order 18.09.2000 passed by Joint Assessor and Collector (Civil Lines Zone), MCD, Delhi. Details of various properties of the petitioner, their occupancy status and other particulars are as follows:
(i) 1527, Ground Floor, Church Road, Kashmere Gate, Delhi is under the tenancy of Sh. Gulati.
(ii) 1528, Ground Floor, Church Road, Kashmere Gate, Delhi is under the tenancy of Sh. Mohd. Azhar.
(iii) 1529 & 1532, Ground Floor, Church Road, Kashmere Gate, Delhi is under the tenancy of Syndicate Bank.
E330/2013 Page 4/37
(iv) 1530, First Floor (LHS), Church Road, Kashmere Gate, Delhi is under the tenancy of Sh. Purushottam Narain Mathur, deceased.
(v) 1530, First Floor (RHS), Church Road, Kashmere Gate, Delhi is under the tenancy of Smt. Surinder Kaur.
(vi) 1530, Second Floor, Church Road, Kashmere Gate, Delhi is under the tenancy of Sh. Hardayal Singh Mehta.
(vii) 1531, Ground Floor, Church Road, Kashmere Gate, Delhi is under the tenancy of LRs of Sh. Syed Tauquir Ul Hasan.
(viii) 1531A, Ground Floor, Church Road, Kashmere Gate, Delhi is under the tenancy of Sh. Vijay Gulati.
(ix) Shop between 1531 & 1531A, Ground Floor, Church Road, Kashmere Gate, Delhi is under the tenancy of Sh. Vijay Gulati.
The composite site plan depicting aforesaid portions of the property has been filed alongwith the petition.
(x) House No. 2546, Ground Floor, Tilak Bazar, Delhi is under the tenancy of Sh. Aftab Ahmed.
(xi) House No. 2546, First Floor, Tilak Bazar, Delhi is under the tenancy of Sh. Abdul Qayyum.
E330/2013 Page 5/37
(xii) Shop No. 4792, First Floor, Chandni Chowk, Delhi is under the tenancy of Sh. Rajiv Kapoor and Rajesh Kapoor.
(xiii) Shop No. 4792, Second Floor, Chandni Chowk, Delhi is under the tenancy of Sh. Abdul Hannan.
(xiv) Shop No. 4792, Third Floor, Chandni Chowk, Delhi is under the tenancy of Sh.Atiqurrehman and Mohd. Irman.
(xv) Shop No. 4793, Ground Floor, Chandni Chowk, Delhi is under the tenancy of Sh. Prem Kumar Sharda.
(xvi) Shop No. 4793/1, Ground Floor, Chandni Chowk, Delhi is under the tenancy of Rajesh Kapoor.
5. The tenanted premises was let out to Late Sh. Purushottam Narain Mathur, the husband and father of the respondents no.1 & 2, respectively, for residential purposes only. The petitioner, at present, is residing at the house, owned by the elder son of the petitioner, Mr. Shahid Atiq at 5, AtaUr Rahman Lane, Civil Lines, Delhi, whose family consists of:
(i) Shahid Atiq, son of the petitioner.
(ii) Mrs. Azra Shahid, daughterinlaw of the petitioner. E330/2013 Page 6/37
(iii) Mohd. Majid Atiq, grandson of the petitioner.
(iv) Ms. Samra Begum, granddaughter of the petitioner.
(v) Mrs. Nurul Ain, granddaughterinlaw of the petitioner.
The accommodation available with the son of the petitioner in this house is very limited and is comprised of two rooms, one store, one toilet and one kitchen on the ground floor and one room with toilet on the mezzanine floor. The requirement of accommodation for the petitioner's son and his family alongwith the petitioner is much more than what is available at present, but somehow, they are managing the same.
6. The petitioner, till the marriage of her grandson namely Mr. Mohd. Majid Atiq, was under occupation of a room situated on the mezzanine floor of the house, but at the time of marriage of her grandson, the petitioner had to vacate this room occupied by her and she had to share a room situated on the ground floor with her granddaughter Ms. Samra Begum. Due to paucity of accommodation in property no.5, AtaUrRahman Lane, Civil Lines, Delhi, the environment at that house is not congenial for peaceful and conducive living. The petitioner is finding it next to impossible E330/2013 Page 7/37 to adjust with her granddaughter who is used to hear music at high volume and watching television at odd hours which hampers performance of prayer (namaz) by the petitioner and also disturbs her sleep. In order to avoid any unpleasant situation during the last days of her life, the petitioner wants to live a peaceful life with honour and dignity in her own house where she can live independently. The petitioner is a senior citizen lady and she needs a separate residential unit for peaceful living for self consisting of atleast three rooms i.e. one bed room, one drawing room, one room for attendant and one guest room alongwith kitchen, store and toilets. The tenanted premises is most suitable and convenient for the petitioner. 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.
7. The respondents have filed an application for leave to defend and contest U/s 14 (1) (e) r/w Section 25B of DRC Act. It is averred that the petitioner is neither owner of the tenanted premises, nor there is any tenant landlady relationship between the petitioner and the respondents. The petitioner, being widow, had been collecting rent from Late Sh. P.N. Mathur E330/2013 Page 8/37 on behalf of all the LRs of Late Sh. S.H. Atiqur Rahman after the death of Sh. S.H. Atiqur Rahman without disclosing any right, title or authority. No letter of attornment was ever issued or served on the respondents or on the predecessor of the respondents, Sh. P.N. Mathur. Hence, the petitioner cannot claim either the right of ownership in the tenanted premises or any relation of landlady and tenants between her and the respondents in any manner whatsoever.
8. The alleged Will dated 26.04.1996, purportedly executed by Late Sh. S.H. Atiqur Rahman in favour of the petitioner is forged and fabricated and created by the petitioner with ill motive and designs and is also guilty of committing forgery. Moreover, the said Will is contrary to Mohammedan Law and is a void document. The petitioner has not disclosed as to whether she belongs to Shia or Sunni community of Muslims. As per Mohammedan Law, an executor cannot execute any Will in respect of his property beyond 1/3rd share of the entire estate. The said Will is unregistered and unattested. The petitioner has not obtained letter of administration in respect of the said Will or otherwise in respect of the properties left behind by Sh. S.H. Atiqur E330/2013 Page 9/37 Rahman. Therefore, the petition is not maintainable and deserves to be dismissed.
9. The petitioner has forged and fabricated the Will of Late Sh. S.H. Atiqur Rahman only to show that the petitioner has no legal right in the property bearing no.5, AtaUrRahman Lane, Civil Lines, Delhi, where she is residing in her own legal rights, title and authority being cosharer in the said property. Property bearing no.5, AtaUrRahman Lane, Civil Lines, Delhi is a four storey house having more 20 big rooms with all facilities and infrastructures. The petitioner is having equal right and title in the said property and is residing being coowner of the said property.
10. After the death of Sh. P.N. Mathur, the respondents tendered rent to the petitioner at the existing rate, but the petitioner was adamant to increase the rate of rent manifold on the pretext that if the respondents want to continue as tenants in the tenanted premises, they have to pay three times more than the existing rent. The respondents requested and tried to persuade the petitioner that the increase demanded by her is exorbitant and contrary to E330/2013 Page 10/37 the provisions of Delhi Rent Control Act. On this, the petitioner got annoyed and threatened to teach a lesson to the respondents. In such circumstances, the present petition has been filed with illegal motives and designs.
11. The petitioner has more than sufficient accommodation not only for herself, but also for her dependent members of the family in the premises bearing no.5, AtaUrRahman Lane, Civil Lines, Delhi of which the petitioner has not filed the requisite site plan. The purported requirement of the petitioner is not bonafide and is based on whimsical desire by projecting that the petitioner is not comfortable at the said residence because of loud music being played by her grandchildren or that there was paucity of accommodation though, infact, the petitioner does not require the tenanted premises at all.
12. The petitioner has intentionally and deliberately concealed the factum of dates of creation of tenancy of the properties mentioned in para no. 18 of the petition, the dates of renewal of rent agreements. Copies of rent agreements and other relevant documents in respect of the said properties E330/2013 Page 11/37 have not been filed. Apart from the properties mentioned in para no.18 of the petition, the petitioner is also having legal rights in various properties including the following one:
(i) Property No.4552, Gali Shahtara, Ajmeri Gate, Delhi.
(ii) Property No.4553, Gali Shahtara, Ajmeri Gate, Delhi.
(iii) Property No.4554, Gali Shahtara, Ajmeri Gate, Delhi.
(iv) Property No.4555, Gali Shahtara, Ajmeri Gate, Delhi.
(v) Property No.4556, Gali Shahtara, Ajmeri Gate, Delhi.
(vi) Property No.4557, Gali Shahtara, Ajmeri Gate, Delhi.
(vii) Property No.4603, Gali Shahtara, Ajmeri Gate, Delhi.
(viii) Property No.4604, Gali Shahtara, Ajmeri Gate, Delhi.
(ix) Property No.4605, Gali Shahtara, Ajmeri Gate, Delhi.
(x) Property No.4606, Gali Shahtara, Ajmeri Gate, Delhi.
(xi) Property No.4607, Gali Shahtara, Ajmeri Gate, Delhi.
(xii) Property No.4608, Gali Shahtara, Ajmeri Gate, Delhi.
(xiii) Property No.4609, Gali Shahtara, Ajmeri Gate, Delhi.
(xiv) Property No.4610, Gali Shahtara, Ajmeri Gate, Delhi.
(xv) Property No.4611, Gali Shahtara, Ajmeri Gate, Delhi. E330/2013 Page 12/37 (xvi) Property No.1534, Ground Floor, Kashmere Gate, Church Road, Delhi.
(xvii) Property No.1534A, First Floor, Kashmere Gate, Church Road, Delhi.
(xviii) Property No.1535, Ground Floor, Kashmere Gate, Church Road, Delhi.
(xix) Property No.1535F, First Floor, Kashmere Gate, Church Road, Delhi.
(xx) Property No.1535G, First Floor, Kashmere Gate, Church Road, Delhi.
(xxi) Property No.1537, Ground Floor, Kashmere Gate, Church Road, Delhi.
(xxii) Property No.1538, Ground Floor, Kashmere Gate, Church Road, Delhi.
(xxiii) Property No.1538A, Ground Floor, Kashmere Gate, Church Road, Delhi.
(xxiv) Godown next to property no.1538A, Ground Floor, Kashmere Gate, Church Road, Delhi.
E330/2013 Page 13/37 (xxv) Godowns on ground and first floors adjacent to property no.1522, Ground Floor, Kashmere Gate, Church Road, Delhi.
(xxvi) Open land between property no.1521 to 1538 (back side and Godowns thereon).
(xxvii) Property No.1524, Ground Floor, Kashmere Gate, Church Road, Delhi.
(xxviii) Property No.1525, First Floor, Left Side, Kashmere Gate, Church Road, Delhi.
(xxix) Property No.1535A, Ground Floor, Kashmere Gate, Church Road, Delhi.
(xxx) Property No.1535B, First Floor, Kashmere Gate, Church Road, Delhi.
(xxxi) Property No.1535C, D, E, First Floor, Kashmere Gate, Church Road, Delhi.
(xxxii) Property No.1521, First Floor, Kashmere Gate, Church Road, Delhi.
(xxxiii) Property No.1521, Second Floor, Kashmere Gate, Church Road, Delhi.
E330/2013 Page 14/37 (xxxiv) Property No.1522, Ground Floor, Kashmere Gate, Church Road, Delhi.
(xxxv) Property No.1523, Ground Floor, Kashmere Gate, Church Road, Delhi.
(xxxvi) Property No.1533, Ground Floor, Kashmere Gate, Church Road, Delhi.
(xxxvii) Property No.1533A, First Floor, Kashmere Gate, Church Road, Delhi.
(xxxviii) Property No.1536, Ground Floor, Kashmere Gate, Church Road, Delhi.
(xxxix) Property No.1536A, First Floor, Kashmere Gate, Church Road, Delhi.
A number of tenancies in respect of properties mentioned in the para had come to an end and fresh tenancies were created after enhancing the rent significantly.
13. Even if the Will is taken to be correct, the intention of the executor was not to evict the tenant and this fact has been specifically E330/2013 Page 15/37 mentioned in ClauseE of the Will which stipulates that all the rented properties shall remain with the firms and their partner only. Therefore, the petitioner does not have any right to evict the existing tenants from the tenanted premises. The tenanted premises was let out for residentialcum commercial purposes and is being used as such since beginning.
14. The petition is bad on account of nonjoinder of necessary parties as one of the legal heir of deceased Sh. P.N. Mathur has not been impleaded as a party. The deceased Sh. P.N. Mathur left behind LRs namely Smt. Reena Mathur, wife; Sh. Rajat Narain Mathur, son and Ms. Preeta Mathur, daughter. Ms. Preeta Mathur, daughter of Late Sh. P.N. Mathur has not been impleaded as a respondent. Therefore, the petition is not maintainable. The petitioner is an old lady of more than 75 years age. The tenanted premises is situated on the first floor. There are steep staircases of more than normal height. It is impossible for the petitioner to climb such steep stairs and to be in a position to use the tenanted premises.
15. The respondents have got no alternative accommodation for E330/2013 Page 16/37 themselves whereas the petitioner is having sufficient accommodation apart from the tenanted premises, which are situated at various parts in Delhi.
16. 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 in their application for leave to defend and reaffirmed her stance, as averred in the petition.
17. Respondents filed rejoinder and allegations leveled by the petitioner have been controverted and rebutted. The averments made in application for leave to defend have been reiterated and reaffirmed.
18. The court has heard submissions advanced on behalf of both the parties and have perused the material on record.
19. 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 : E330/2013 Page 17/37
(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.
20. 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 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 E330/2013 Page 18/37 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.
21. 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
22. It is contended on behalf of the respondents that there is no tenantlandlady relationship between the petitioner and the respondents. The petitioner, being widow, had been collecting rent from Late Sh. P.N. Mathur on behalf of all the LRs of Late Sh. S.H. Atiqur Rahman after the death of E330/2013 Page 19/37 Sh. S.H. Atiqur Rahman without disclosing any right, title or authority. No letter of attornment was ever issued or served on the respondents or on the predecessor of the respondents, Sh. P.N. Mathur.
23. The alleged Will dated 26.04.1996, purportedly executed by Late Sh. S.H. Atiqur Rahman in favour of the petitioner is forged and fabricated. Moreover, the said Will is contrary to Mohammedan Law and is a void document. The petitioner has not disclosed as to whether she belongs to Shia or Sunni community of Muslims. As per Mohammedan Law, an executor cannot execute any Will in respect of his property beyond 1/3rd share of the entire estate. The said Will is unregistered and unattested. The petitioner has not obtained letter of administration in respect of the said Will. Therefore, the petition is not maintainable and deserves to be dismissed.
24. Per contra, it is contended on behalf of the petitioner that the petitioner has filed various rent receipts issued by her from time to time in favour of predecessorininterest of the respondents viz. Smt. Rajeshwari Mathur and Sh. P.N. Mathur. As a matter of fact, prior to occupation of the E330/2013 Page 20/37 present respondents, Late Sh. P.N. Mathur, husband and father of respondents no.1 & 2, respectively, was tenant of the tenanted premises and prior to him, Smt. Rajeshwari Mathur was the tenant. Fourteen rent receipts were issued between 13.09.1997 and 17.05.2001 which clearly describe the petitioner as the landlady/owner. Three such rent receipts have been filed. Similarly, many rent receipts were issued in favour of Late Sh. P.N. Mathur, husband and father of respondents. In those rent receipts also, the petitioner has been mentioned as the landlady. Two receipts bearing no.211 & 212 duly signed by him are already available on judicial record. It has been clearly mentioned on the rent receipts that the property belongs to the petitioner viz. Mrs. Roshan Ara Begum. Therefore, the respondents cannot deny the title of the petitioner. Even otherwise, the respondents have failed to specify as to who else is the landlord of the tenanted premises. It is not disputed that the petitioner is the widow of Sh. S.H. Atiqur Rahman, who was admittedly, landlord of their husband, father and mother respectively. The respondents are estopped from challenging the title of the petitioner.
25. It is denied that the Will in question is forged and fabricated E330/2013 Page 21/37 document. In India, more than 9798% Muslims belong to Sunni Sect and it is presumed that the particular person belongs to Sunni Community as is in the case of the petitioner. The Will in question has been accepted and acted upon by all the legal heirs of Late Sh. S.H. Atiqur Rahman. The petitioner, her two sons viz. Sh. Shahid Atiq, Sh. Nasir Atiq and daughter, Ms. Nadra Begum had subsequently executed a family settlement on 29.12.1997 whereby they completely honoured the sentiments and desire of Late Sh. S.H. Atiqur Rahman in conformity with his Will dated 26.04.1996. The LRs of Late Sh. S.H. Atiqur Rahman are in possession and control of their respective portions. Moreover, it is well settled proposition of law that strangers including tenants have got no right to question the legality of a Will. As per Section 117 of the Mohammedan Law, any single heir may consent so as to bind his own shares. Acting upon the Will, MCD had mutated the names of LRs of Late Sh. S.H. Atiqur Rahman in respect of the properties falling into their shares. It is not mandatory to get a Will registered.
26. The court is of the considered view that a perusal of the three rent E330/2013 Page 22/37 receipts filed by the petitioner in favour of Smt. Rajeshwari Mathur, predecessorininterest of the respondents shows that it has been clearly mentioned that the property belongs to the petitioner, Smt. Roshan Ara Begum. Similarly, two rent receipts bearing no.211 & 212 issued in favour of Sh. P.N. Mathur, husband and father of the respondents also shows that it has been specifically mentioned that property belongs to the petitioner. Both these rent receipts are purportedly signed by husband and father of the respondents. Therefore, the respondents are estopped from denying the title of the petitioner. Moreover, the respondents have failed to specify as to who else is the landlord/owner of the tenanted premises.
27. The petitioner has denied that the Will dated 26.04.1996 is forged and fabricated. It is asserted that the Will in question has been accepted and acted upon by all the legal heirs of Late Sh. S.H. Atiqur Rahman. The petitioner, her two sons viz. Sh. Shahid Atiq, Sh. Nasir Atiq and daughter, Ms. Nadra Begum had subsequently executed a family settlement on 29.12.1997 whereby they completely honoured the sentiments and desire of Late Sh. S.H. Atiqur Rahman in conformity with his Will dated 26.04.1996. E330/2013 Page 23/37 The LRs of Late Sh. S.H. Atiqur Rahman are in possession and control of their respective portions. It is no longer res integra that only legal heirs of a deceased landlord can challenge his Will and tenant has no locus standi to challenge the validity of a Will. Reference can be made to judgment delivered by Hon'ble High Court of Delhi in the case of Lajpat Rai Vs. Raman Jain, 2012 (3) CLJ 200 Delhi. It is not mandatory to get a Will registered under the provisions of Indian Registration Act, 1908. Accordingly, the court holds that the petitioner is owner of the tenanted premises and she is landlady in respect of the tenanted premises, qua the respondents.
Purpose of Letting
28. 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. Availability or NonAvailability of alternative suitable accommodation E330/2013 Page 24/37 in Delhi
29. It is contended on behalf of the respondents that the petitioner is residing in property no.5, AtaUrRahman Lane, Civil Lines, Delhi in her capacity as a cosharer in the said property. Property bearing no.5, AtaUr Rahman Lane, Civil Lines, Delhi is a four storey house having more 20 big rooms with all facilities and infrastructures. The petitioner is having equal right and title in the said property.
30. The petitioner has intentionally and deliberately concealed the factum of dates of creation of tenancy of the properties mentioned in para no. 18 of the petition, the dates of renewal of rent agreements. Copies of rent agreements and other relevant documents in respect of the said properties have not been filed. Apart from the properties mentioned in para no.18 of the petition, the petitioner is also having legal rights in 39 properties, as mentioned in para no. I of the application for leave to defend. A number of tenancies in respect of properties mentioned in the para had come to an end and fresh tenancies were created after enhancing the rent significantly. E330/2013 Page 25/37
31. Per contra, it is denied by the petitioner that she is residing in property no.5, AtaUrRahman Lane, Civil Lines, Delhi by virtue of her own legal rights, title and interest. It is denied that property no.5, AtaUr Rahman Lane, Civil Lines, Delhi has more than 20 big rooms. The said property is owned and occupied by two sons of the petitioner. The petitioner is not having any right, title or interest in the said property.
32. It is specifically denied that the petitioner has got any right, title or interest in the properties mentioned in para no. I of the application for leave to defend, filed by the respondents. As a matter of fact, properties mentioned at Serial No.(i) to (xv) do not even belong to LRs of Late Sh. S.H. Atiqur Rahman. Only a part of property no.4552 to 4557 and 4603 to 4611 is owned by other LRs and not by the petitioner. Other parts of these properties are owned by other near relations of Late Sh. S.H. Atiqur Rahman. The property mentioned at Item No.(i) to (xxvi) is a single property and the respondents have given it separate numbers to mislead and prejudice the court. The properties mentioned at Serial No.(xxvii) to (xxxi) belong to Sh. Nasir Atiq, son of the petitioner and properties mentioned at E330/2013 Page 26/37 Serial No.(xxxii) to (xxxix) belong to Ms. Nadra Begum, petitioner's daughter. The respondents have failed to file any document to establish that the petitioner is having any right, title or interest in any of the properties mentioned in para no. I of their application for leave to defend.
33. The court is of the considered view that the respondents have failed to file any document to establish that the petitioner is having any share or interest in property no.5, AtaUrRahman Lane, Civil Lines, Delhi. If the petitioner is not having any right, title or interest in the said property, then it is immaterial that there is surplus space available in the said property. Similarly, the respondents have failed to file any document to establish that fresh tenancies were created by the petitioner at enhanced rates of rent in respect of the properties owned by her which are in occupation of different tenants. The respondents have also failed to file any document to establish that the petitioner is having any right, title or interest in any of the properties enumerated in para no. I of their application for leave to defend whereas, the petitioner has specifically stated that properties mentioned at Serial No.(i) to
(xv) do not even belong to LRs of Late Sh. S.H. Atiqur Rahman. Only a part E330/2013 Page 27/37 of property no.4552 to 4557 and 4603 to 4611 is owned by other LRs and not by the petitioner. Other parts of these properties are owned by other near relations of Late Sh. S.H. Atiqur Rahman. The property mentioned at Item No.(i) to (xxvi) is a single property and the respondents have given it separate numbers. It is specifically averred that the properties mentioned at Serial No.(xxvii) to (xxxi) belong to Sh. Nasir Atiq, son of the petitioner and properties mentioned at Serial No.(xxxii) to (xxxix) belong to Ms. Nadra Begum, petitioner's daughter. Accordingly, the court holds that the petitioner is not having any other reasonably suitable accommodation for use by her for residential purposes and the respondents have not been able to raise any triable issue on this aspect.
Bonafide requirement
34. It is contended on behalf of the respondents that after the death of Sh. P.N. Mathur, the respondents tendered rent to the petitioner at the existing rate, but the petitioner was adamant to increase the rate of rent manifold on the pretext that if the respondents want to continue as tenants in the tenanted premises, they have to pay three times more than the existing E330/2013 Page 28/37 rent. The respondents requested and tried to persuade the petitioner that the increase demanded by her is exorbitant and contrary to the provisions of Delhi Rent Control Act. On this, the petitioner got annoyed and threatened to teach a lesson to the respondents. In such circumstances, the present petition has been filed with illegal motives and designs.
35. The purported requirement of the petitioner is not bonafide and is based on whimsical desire by projecting that the petitioner is not comfortable at property no.5, AtaUrRahman Lane, Civil Lines, Delhi because of loud music being played by her grandchildren or that there was paucity of accommodation though, infact, the petitioner does not require the tenanted premises at all.
36. It is contended on behalf of the respondents that even if the Will is taken to be correct, the intention of the executor was not to evict the tenant and this fact has been specifically mentioned in ClauseE of the Will which stipulates that all the rented properties shall remain with the firms and their partner only. Therefore, the petitioner does not have any right to evict the E330/2013 Page 29/37 existing tenants from the tenanted premises. The tenanted premises was let out for residentialcumcommercial purposes and is being used as such since beginning.
37. The petition is bad on account of nonjoinder of necessary parties as one of the legal heir of deceased Sh. P.N. Mathur has not been impleaded as a party. Ms. Preeta Mathur, daughter of Late Sh. P.N. Mathur has not been impleaded as a respondent. Therefore, the petition is not maintainable. The petitioner is an old lady of more than 75 years age. The tenanted premises is situated on the first floor. There are steep staircases of more than normal height. It is impossible for the petitioner to climb such steep stairs and to be in a position to use the tenanted premises.
38. The respondents have got no alternative accommodation for themselves whereas the petitioner is having sufficient accommodation apart from the tenanted premises, which are situated at various parts in Delhi. Reliance is placed upon judgments delivered by Hon'ble High Court of Delhi in the cases of Prahlad Rai Mittal Vs. Rita Devi, 196 (2013) DLT 703; E330/2013 Page 30/37 Deepak Gupta Vs. Sushma Aggarwal, 202 (2013) DLT 121; Khem Chand & Ors. Vs. Arun Jain & Ors., RC. Rev. No. 442/2012, decided on 13.09.2013; S.K. Seth & Sons Vs. Vijay Bhalla, 191 (2012) DLT 722 and Sudhakar Singh Vs. Sunil Batra & Ors., 192 (2012) DLT 491.
39. Per contra, it is denied by the petitioner that she had demanded three fold increase in rate of rent from the respondents. As a matter of fact, the petitioner is a pardanashin lady who is not accustomed to appear in public. She has never come face to face with the respondents and other tenants. Sh. Shahid Atiq, elder son of the petitioner, who is also special attorney holder of the petitioner, conducts dealings with the tenants on behalf of the petitioner.
40. It is denied that the petition has been filed on the basis of her whimsical desire. It is reiterated that the petitioner had to vacate a room situated on the mezzanine floor of property no.5, AtaUrRahman Lane, Civil Lines, Delhi at the marriage of her grandson viz. Sh. Mohammad Majid Atiq and she had to share a room situated on the ground floor with her E330/2013 Page 31/37 granddaughter Ms. Samra Begum. Due to paucity of accommodation in property no.5, AtaUrRahman Lane, Civil Lines, Delhi, the environment at that house is not congenial for peaceful and conducive living. The petitioner is finding it next to impossible to adjust with her granddaughter who is used to hear music at high volume and watching television at odd hours which hampers performance of prayer (namaz) by the petitioner and also disturbs her sleep. In order to avoid any unpleasant situation during the last days of her life, the petitioner wants to live a peaceful life with honour and dignity in her own house where she can live independently.
41. The respondents have given an altogether different meaning to ClauseE of the Will. The correct import of the said clause is that the properties in respect of which Late Sh. S.H. Atiqur Rahman and his sons were tenant, will remain with the tenants and their partners only. This clause has to be read in consonance with SubClause (c) given at page no.02. It is denied that the tenanted premises was let out for residentialcumcommercial purpose. It was indeed let out for residential purpose only. E330/2013 Page 32/37
42. Ms. Preeta Mathur, daughter of deceased tenant is married and is living at her matrimonial home alongwith her husband. The address of matrimonial home of Ms. Preeta Mathur is not known to petitioner. Ms. Preeta Mathur has got no concern with the tenanted premises. Moreover, it is no longer res integra that representation by one of the legal heirs of the deceased tenant is sufficient representation. Reliance is placed upon judgment delivered by Hon'ble Supreme Court of India in the case of H.C. Pandey Vs. G.C. Paul, AIR 1989 SC 1470 and judgment delivered by Hon'ble High Court of Delhi in the case of Mohd. Yunus Vs. Nawabuddin, 82 (1999) DLT 841. It is well settled law that it is for the landlord to determine as to which property suits his/her needs and it is not for the tenant to suggest or dictate terms to the landlord. It has been held by Hon'ble High Court of Delhi in the case of Ram Lal Vs. Hari Kishan, 1986 (Supp) RCR (Rent) 324 Delhi that the tenant cannot take a defence that the tenanted premises is not suitable for the landlord. It is for the petitioner to determine her discomfort and insufficiency of accommodation at property no.5, Ata UrRahman Lane, Civil Lines, Delhi. It has been held by Hon'ble High Court of Delhi in the case of P. Nijhawan Vs. K. Bhatia, 1988 (1) RCR E330/2013 Page 33/37 (Rent) 233 Delhi that independent unit requirement due to conflict in family is bonafide.
43. Nonavailability of alternative accommodation with the respondents cannot be a ground to decline relief to the petitioner. It is the availability of alternative suitable accommodation available with the petitioner which is required to be considered.
44. The court is of the considered view that no triable issue is made out on the aspect of demand of three fold increase in rate of rent. It is no longer res integra that the tenant cannot dictate terms to the landlord and it is for the landlord to determine as to which property is suitable to meet his requirements. Moreover, once the respondents have failed to establish that the petitioner is having any right, title or interest in property no.5, AtaUr Rahman Lane, Civil Lines, Delhi, it is immaterial that the claim of the petitioner regarding insufficiency of space in property no.5, AtaUrRahman Lane, Civil Lines, Delhi or her discomfort therein is false. The interpretation of ClauseE at page no.04 of the Will dated 26.04.1996 purportedly executed E330/2013 Page 34/37 by Late Sh. S.H. Atiqur Rahman, given by the respondents is incorrect. The executant is not stating that the rented properties will remain with his tenants, but he is referring to the properties in respect of which he or the firms associated with him are tenants. It is no longer res integra that it is not incumbent upon the landlord to implead all the legal heirs of the deceased tenant. Even if one legal heir of the deceased tenant has been impleaded, it is sufficient. Reference can be made to the decisions of Hon'ble Supreme Court of India in the cases of H.C. Pandey Vs. D.C. Paul, AIR 1989 SC 1470 and Harish Tandon Vs. Additional DM, AIR 1995 SC 676. It is no longer res integra that it is the landlord who is to determine the suitability of the premises and a tenant cannot question the preference/determination made by the landlord. Moreover, if the petitioner does not use the property for the purposes claimed in the petition, the respondents have a statutory remedy available U/s 19 of the DRC Act to seek reentry. Nonavailability of alternative accommodation with the respondents is immaterial for deciding the present petition. Therefore, the court holds that the petitioner has been successful in prima facie establishing that she requires the tenanted premises for her own residential purposes.
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45. 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, primafacie there is nothing on record which would disentitle the petitioner of the right of immediate possession in respect of the tenanted premises.
46. Accordingly, the application under Section 25B (4) of Delhi Rent Control Act, 1958, filed by both the respondents is dismissed. The petition is allowed and eviction order is passed in favour of the petitioner and against both the respondents in respect of tenanted premises which comprises of one residential flat bearing Municipal No. 1530, Ward No.1, Church Road, Kashmere Gate, Delhi110006, on first floor comprising of one big hall, two rooms, kitchen, toilet, open verandah in front facing main road and one balcony at the back side with common stair case leading to first floor, 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.
E330/2013 Page 36/37
File be consigned to Record Room.
Announced in the open court (SANDEEP GARG)
on 25.05.2015 Administrative Civil Judge cum
Additional Rent Controller (Central)
Delhi/25.05.2015
E330/2013 Page 37/37
E330/2013
25.05.2015
Present : None.
Vide separate order of even date, application for leave to defend, filed by both the respondents is dismissed. The petition is allowed and eviction order is passed in favour of the petitioner and against both the respondents in respect of tenanted premises which comprises of one residential flat bearing Municipal No. 1530, Ward No.1, Church Road, Kashmere Gate, Delhi110006, on first floor comprising of one big hall, two rooms, kitchen, toilet, open verandah in front facing main road and one balcony at the back side with common stair case leading to first floor, 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/25.05.2015 E330/2013 Page 38/37