Delhi District Court
Smt. Meera Devi vs Smt. Rekha Khandelwal on 4 August, 2016
IN THE COURT OF SH. TARUN YOGESH
SCJCUMRC, CENTRAL DISTT. TIS HAZARI COURT, DELHI
Old Number : E - 49/2006
New Number : 77773/2016
Smt. Meera Devi,
W/o Late Sh. Umrao Singh,
R/o 2955/42, Beadon Pura,
Karol Bagh,
New Delhi - 110 005. ........ Petitioner.
VERSUS
1. Smt. Rekha Khandelwal,
W/o Late Sh. Sohan Lal Khandelwal,
Shop at 2955/42, Beadon Pura,
Karol Bagh,
New Delhi - 110 005.
2. Sh. Sumit Khandelwal,
S/o Late Sh. Sohan Lal Khandelwal,
Shop at 2955/42, Beadon Pura,
Karol Bagh,
New Delhi - 110 005.
3. Ms. Nidhi Khandelwal,
D/o Late Sh. Sohan Lal Khandelwal,
Shop at 2955/42, Beadon Pura,
Karol Bagh,
New Delhi - 110 005.
Also at :
H. No. 203, Gali No. 9, Than Singh Nagar,
Anand Parbat,
New Delhi ...... Respondents.
Date of Institution of case : 20.02.2016
Date on which judgment was reserved : 04.08.2016
Date on which judgment was pronounced : 04.08.2016
Smt. Meera Devi Vs. Smt. Rekha Khandelwal & Ors Page 1 of 13
JUDGMENT
1. Petitioner Smt. Meera Devi has filed eviction petition under section 14 (1) (e) read with section 25 B of Delhi Rent Control Act, 1958 (hereinafter referred as DRC Act) for evicting respondents from one shop measuring 12 ft. x 8.5 ft. = 102 sq. ft. situated on the ground floor of property no. 2955/42, Beadon Pura, Karol Bagh, New Delhi - 110005 more specifically shown in red colour in the site plan. 1.1 Respondents Smt. Rekha Khandelwal, Sh. Sumit Khandelwal and Ms. Nidhi Khandelwal are averred to be occupying the tenanted shop upon monthly rent of Rs. 300/ for carrying their business / trading of handloom items under the name and style of M/s. Khandelwal Fabrics. 1.2 Petitioner claims herself as owner of 1/6 th undivided share of property no. 2955/42, Beadon Pura, Karol Bagh, New Delhi built over plot measuring 83 sq. yards by virtue of registered Will dated 28.12.1984 executed by her motherinlaw late Smt. Ladan Devi bequeathing property in six parts in favour of her six sons including plaintiff's husband late Sh. Umrao Singh who became owner of 1/6th undivided share of property after the death of his mother on 28.04.1993.
1.3 Later on, upon death of late Sh. Umrao Singh, petitioner Smt. Meera Devi (widow) alongwith her sons Sh. Kishore Kumar and Sh. Vijay Kumar (died on 03.12.2007) became coowners in possession of 1/6 th undivided share of property which is mutated in their name in revenue / DDA records and respondents have admitted her as their landlady in their affidavits filed under section 25 B (4) of DRC Act in the earlier eviction petition no. E328 /2013.
Smt. Meera Devi Vs. Smt. Rekha Khandelwal & Ors Page 2 of 131.4 Tenanted shop on the ground floor of property is stated to have been let out to late Sh. Sohan Lal Khandelwal upon monthly rent of Rs.150/ which was subsequently increased to Rs. 300/ per month and respondents being LRs of original tenant are averred to have jointly inherited his tenancy.
1.5 Petitioner has disclosed about the earlier eviction petition no. E328/2013 under section 14 (1) (e) of DRC Act filed against respondents for bonafide requirement of commercial space for trading in handloom items which was eventually withdrawn on 04.01.2016 due to sudden and urgent need of shop on the ground floor for her residence upon medical advise as petitioner being old lady aged 66 years is suffering from osteo artheritis and has to undergo total knee joint replacement. 1.6 Further, petitioner has also mentioned about her family including son Sh. Kishore Kumar, daughterinlaws Smt. Rajkumari and Smt. Poonam, four grandsons namely Rahul (24 years), Shubham (21 years), Sheel (18 years), Daksh (13 years) and two grand daughters Ms. Sanjana (20 years) and Ms. Komal (16 years) who are residing in very small accommodation comprising one room each on the first, second and third floors of the house built upon plot of 14 sq. yards approx. whereas fourth floor comprising kitchencumstore, one latrine and one bathroom is used in common by all members of her family and the fifth floor measuring 12 ft. x 8.5 ft. is a semi built structure used for storing junk and also occupied by a tenant. Petitioner has, therefore, asserted her bonafide need for tenanted shop on the ground floor for her residence as she has been advised to undergo total knee replacement and avoid climbing stairs up to second and fourth floor for using latrine and bathroom by Dr. Smt. Meera Devi Vs. Smt. Rekha Khandelwal & Ors Page 3 of 13 Deepak Thakur of Delhi Orthopaedic Clinic.
2. Notice of eviction petition in prescribed form as per Third Schedule was served upon respondents and they have filed joint application under section 25 B (4) of DRC Act alongwith their affidavits for seeking leave to defend inter alia upon following grounds : 2.1 That eviction petition is liable to be dismissed as petitioner is guilty of concealment of material facts.
2.2 That eviction petition has been filed with ulterior motive for letting out tenanted shop on higher rent as petitioner is occupying five floors (G + 5) in the building which has been deliberately concealed with malafide intention as her need is not bonafide but is driven by pure greed and lust for increase of monthly rentals.
2.3 That petitioner has also concealed about earlier eviction petitions bearing no. E159/2012 and E328/2013 filed on the ground of bonafide requirement which were eventually withdrawn. 2.4 That daughterinlaw of petitioner (widow of late Sh. Vijay Kumar) is a permanent employee of Rajasthan State Road Transport Corporation posted in Delhi earning more than Rs. 25,000/ and is not residing with petitioner in the same building due to strained relations yet present eviction petition has been filed by petitioner by harping upon her bonafide need for shop on the ground floor which is not bonafide and eviction petition is therefore liable to be dismissed. 2.5 That tenanted shop had been let out to late Sh. Sohan Lal Khandelwal by petitioner's husband late Sh. Umrao Singh through lease deed dated 03.02.1981 upon payment of Rs. 25,000/ as pagri in addition to monthly rent of Rs. 150/.
Smt. Meera Devi Vs. Smt. Rekha Khandelwal & Ors Page 4 of 132.6 That respondents are entitled to adequate and effective opportunity for disproving petitioner's alleged need for tenanted shop as held by Hon'ble Supreme Court of India in cases titled "Inderjeet Kaur vs. Nirpal Singh" and "Santosh Kumar vs. Bhai Mool Singh". 2.7 That alleged bonafide need of tenanted shop by petitioner for seeking their eviction is baseless, sham, unfounded and laced with greed as petitioner is occupying four floors in the same building. 2.8 That provisions of Delhi Rent Control Act, 1958 are not applicable and eviction petition is therefore liable to be dismissed. 2.9 That petitioner is residing on the first floor of building having amenities of toilet, washroom etc. and performing all her daily routine without any problem.
2.10 That tenanted shop on the ground floor is without any window, water connection and necessary amenities and is therefore not fit for residence.
2.11 That petitioner has wrongly claimed to be residing on the second floor of building alongwith her grandson and granddaughters whereas in fact she is actually residing on the first floor of building having toilet and bathroom which is best suited for her need and requirement. 2.12 That petitioner has wrongly stated about room on the fifth floor being used for storing junk whereas in fact the space (accommodation) on the fifth floor has been rented out to tenant.
3. Petitioner has filed her reply alongwith counter affidavit for disputing respondents' averments and for seeking dismissal of their application for leave to defend. Respondents have thereafter filed their rejoinder (replication) to petitioner's reply on record for reiterating the Smt. Meera Devi Vs. Smt. Rekha Khandelwal & Ors Page 5 of 13 grounds raised in their affidavit filed alongwith application for leave to defend.
4. Advocate Sh. Surender Mishra for petitioner and Advocate Sh. M. Mohan for respondent have addressed their arguments upon respondents' application for leave to defend.
5. Having heard their submissions, it would be apt to allude to well settled principle of law that leave to defend is granted to tenant only in cases where triable issues are raised by respondent in his affidavit which can be adjudicated through additional evidence or else the whole purpose and import of summary procedure under section 25 B of DRC Act would be defeated.
6. At the very outset, it is significant to record that landlord tenant relationship has not been disputed by respondents in their affidavits filed alongwith joint application under section 25 B (4) of DRC Act.
7. As regards respondents' plea assailing eviction petition on the ground of concealment of material facts, it is relevant to note that petitioner has disclosed about her family members comprising one son, two daughterinlaws and six grandchildren as also the accommodation available on different floors of building occupied by them for residence. Further, she has also mentioned about the earlier eviction petition no. 328/2013 under section 14 (1) (e) of DRC Act filed against respondents for bonafide requirement of commercial space for trading in handloom items which was eventually withdrawn on 04.01.2016 due to sudden and urgent need of tenanted shop on the ground floor for her residence. Moreover, previous eviction petitions on the ground of bonafide Smt. Meera Devi Vs. Smt. Rekha Khandelwal & Ors Page 6 of 13 requirement of shop for commercial purpose which were eventually withdrawn do not constitute triable issues for disputing petitioner's need for accommodation for her residence as it is well settled law that bonafide requirement by landlord can arise with due passage of time or even overnight due to sudden change in circumstances.
8. Hon'ble High Court of Delhi in para no. 21 of its judgment in case titled "Rajesh Jain Vs. Qazi Shamim Ahmed & Ors" 2015 (2) Rajdhani Law Reporter 438 has held : "Life does not come to a standstill and its enjoyment cannot be mortgaged to the prosecution of an eviction petition. Bonafide need for tenanted premises can arise with due passage of time or even overnight due to sudden change in circumstances. All that the landlord would then need to show is that he has no other reasonably suitable accommodation to satisfy his need."
9. At this stage, it would be apt to advert to para no. 13 of 'Annexure A' of eviction petition mentioning the grounds for eviction wherein petitioner has categorically averred that previous petition no. 328/2013 under section 14 (1) (e) of DRC Act for bonafide requirement for commercial space was withdrawn from the court of Ld. ARC, Delhi due to sudden and urgent need of tenanted shop for residence as per medical advise as she is suffering from osteo arthritis and has to undergo total knee joint replacement.
10. Next, respondents have disputed petitioner's requirement for tenanted shop as baseless, sham, unfounded and laced with greed by Smt. Meera Devi Vs. Smt. Rekha Khandelwal & Ors Page 7 of 13 claiming that she alongwith her grandson and granddaughters has been residing on the first floor of building having toilet and bathroom which is best suited for her need and requirement and is performing all her daily routines without any problem.
11. Nonetheless, it would be apt to refer to medical documents filed alongwith petition viz. xray report of Krishna Diagnostic Center and prescription of Dr. Deepak Thakur, Delhi Orthopaedic Clinic mentioning degenerative changes in both knee joints with mild osteophytosis at articular margins, nonuniform asymmetrical joint space reduction and subchondral sclerosis and recommending left total knee replacement besides advising petitioner to avoid climbing stairs or coming down frequently, sitting crosslegged and squatting.
12. Hon'ble High Court of Delhi in case titled "Krishna Kumar Gupta Vs. Swadesh Bhushan Gupta" 152 (2008) Delhi Law Times 556 has held : "A landlord, who has now come of age and is suffering from ailments as stated and finds it difficult in climbing stairs cannot be compelled to live on the first floor because of the convenience of tenant. Once the age catches up with the man and ailments bring him to a situation that he becomes weak, his desire to live at the ground floor has to be considered as a bonafide requirement of the landlord. A landlord cannot be compelled to risk his health for the convenience of the tenant. Even if the accommodation at second floor which is in occupation Smt. Meera Devi Vs. Smt. Rekha Khandelwal & Ors Page 8 of 13 of the daughter becomes available to him, the landlord cannot be told that he should move to second floor or why his daughter was living with him and should not live at the ground floor. The protection under the Delhi Rent Control Act was not meant to perpetuate injustice on the landlord that under all circumstances, even when the landlord has grown old, no tenant will be evicted. In this case, the landlord has been suffering from ostro arthritis and has also been operated upon in the year 1997 and was hospitalized in March 2001 for ulcer and polyburst, his wife is suffering from slipped disc. The requirement of the landlord to live at the ground floor because of advancing age and ailments cannot be held to be malafide."
13. Petitioner Smt. Meera Devi being old aged lady suffering from osteo arthritis who has been advised to undergo total knee joint replacement cannot be therefore compelled to occupy first, second and upper floors of the building for protecting tenant's occupation on the ground floor. Hon'ble High Court of Delhi in para no. 8 of its judgment in case titled "Vivek Gupta & Ors Vs. Lakshmi Chand Bararia" 62 (1996) Delhi Law Times 177 has held : "In any case the law is well settled that it is always open for the landlord to stay in his own accommodation and he is the best judge of his residential requirement. It is not open for the Court to Smt. Meera Devi Vs. Smt. Rekha Khandelwal & Ors Page 9 of 13 dictate to the landlord how and in what manner he should live or to prescribe him the residential standards".
14. Hon'ble Supreme Court of India in para no. 13 of its judgment in case titled "Shiv Sarup Gupta Vs. Dr. Ramesh Chand Gupta" (1999) 6 Supreme Court Cases 222 has elucidated about the concept of bonafide requirement by holding : "A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any settings of the fact and circumstances protruding the need of the landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the court. The judge of facts should place himself in the armchair of the landlord and then ask the question to himself - whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bonafide."
15. Similarly, respondents' plea assailing petitioner's requirement as driven by pure greed and lust for increase of monthly rentals does not Smt. Meera Devi Vs. Smt. Rekha Khandelwal & Ors Page 10 of 13 constitute any triable issue as section 19 of the Act ensures their interest to reenter the tenanted shop in case the premises are not occupied by petitioner within two months of obtaining possession or are relet to any person other than the tenant within a period of three years without obtaining permission of the Controller.
16. Hon'ble High Court of Delhi in para no. 8 of its judgment tilted "Sh. Vinod Kumar Bhalla Vs. Sh. Nanak Singh" AIR 1982 (2) 715 has held : "The allegations regarding the intention of the respondent to sell or relet the property are also vague. Experience has shown in that 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. Such type of allegations are generally without any foundation. When an order of eviction under Section 14 (1) (e) of the Act is passed, the tenant is granted six month's time to vacate the premises under Section 14 (7) of the Act. After getting the premises vacated the landlord is required to occupy the same within two months under Section 19 of the Act and he is not entitled to relet or alienate the whole or any part of the tenancy premises within three years from the date of obtaining possession from the tenant. In other words, it would mean that the landlord is required to keep the premises for a period Smt. Meera Devi Vs. Smt. Rekha Khandelwal & Ors Page 11 of 13 of three years with him. He would thus be not in a position either to sell the house or to relet the same. The allegations of the alleged intention to sell or relet do not require consideration at this stage. If the landlord sells the property or relets the same after obtaining possession, the tenant may proceed against the landlord for restoration of possession under Section 19 of the Act. This section is sufficient protection to the tenant against the alleged sale or re letting of the premises by the landlord".
17. Similar finding was returned by Hon'ble Delhi High Court in case titled "Dinesh Kumar Gupta Vs. Sunil Gupta & Ors" 211 (2014) Delhi Law Times 11 (CL) by holding that tenant's apprehension that landlord was motivated by desire to release it only for higher rent would be taken care by section 19 of DRC Act and hence no triable issue was made out.
18. Respondents' plea that tenanted shop on the ground floor has no window, water connection or other necessary amenities for disputing petitioner's need for residence does not constitute any triable ground either as such provisions and facilities can be readily availed through necessary modifications. Finally, their contention about payment of Rs. 25,000/ as pagri at the time of execution of lease deed dated 03.02.1981 could be a ground for seeking recovery of amount within one year of payment under section 13 of DRC Act but cannot be cited as defence in eviction proceedings.
19. Petitioner being owner / landlord suffering from osteo arthritis Smt. Meera Devi Vs. Smt. Rekha Khandelwal & Ors Page 12 of 13 who has to undergo total knee replacement is entitled to reside on the ground floor of the building as per medical advise for avoiding climbing stairs up to second and fourth floor and her bonafide requirement for tenanted shop on the ground floor is held to be genuine, honest and conceived in good faith.
20. Respondent's application under section 25 B (4) of DRC Act is accordingly dismissed in the absence of any triable issue raised in their affidavits and eviction order is passed against respondents in respect of shop measuring 12 ft. x 8.5 ft. = 102 sq. ft. situated on the ground floor of property no. 2955/42, Beadon Pura, Karol Bagh, New Delhi - 110005 more specifically shown in red colour in the site plan filed by petitioner.
This order shall however not be executed within a period of six months from today as per section 14 (7) of DRC Act.
File be consigned to record room.
Announced in open court (Tarun Yogesh)
Dated 04th August, 2016 SCJCumRC (Central)
Tis Hazari Courts Delhi.
Smt. Meera Devi Vs. Smt. Rekha Khandelwal & Ors Page 13 of 13