Delhi District Court
Sh. Ishwar Dutt Kashyap vs Smt. Panna on 8 May, 2012
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IN THE COURT OF SH. PRITAM SINGH, ARC (CENTRAL) TIS HAZARI
COURTS, DELHI.
E-160/10
08.05.2012
1. Sh. Ishwar Dutt Kashyap
s/o Sh. Udrej Kashyap
2. Smt. Rekha Kashyap
w/o Late Sh. Sunil Dutt Kashyap
3. Ms. Kanika Kashyap
d/o Late Sh. Sunil Dutt Kashyap
4. Ms. Kamna Kashyap
s/o Late Sh. Sunil Dutt Kashyap
5. Sh. Udrej Kashyap
s/o Late Sh. K.Ram
All r/o 10925,
Manak Pura,
Doriwalan, Karol Bagh, Delhi.
(The petitioners no. 3 and 4 being
minors of aged around 13 & 8 years respectively
are being represented by smt. Rekha Kashyap
who is their real mother and natural guardian). ...Petitioners
VERSUS
Smt. Panna
w/o Late Sh. Tara Chand
R/o 16554-P, 118,
Ganesh Pura, Tri Nagar, Delhi.
Also at :-
R/o 10925
Manak Pura, Karol Bagh,
Delhi-110005. ...Respondent
E-160/10 Ishwar Dutt Kashyap & Ors. Vs. Smt. Panna Page 1 of 10
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Petition u/s 14 (1) (e) r/w section 25-B of Delhi Rent Control Act.
1. Date of institution of the case : 01.07.2010
2. Date of Judgment reserved : 04.05.2012
3. Date of Judgment pronounced : 08.05.2012
JUDGMENT
The brief facts as stated in the petition are that the petitioners are joint owners of the property bearing no. 10925, Manakpura, Doriwalan, Karol Bagh, New Delhi and respondent is tenant in respect of one room, one kitchen, one bathroom and WC on the ground floor as shown in red color in the site plan, hereinafter called the suit premises at a monthly rent of Rs. 29.70/- excluding all other charges. It is further stated that Smt. Balwanti Kashyap purchased the property in question vide registered sale deed dated 09.04.2003. Petitioner no. 5 is husband of Late Smt. Balwanti Kashyap and petitioner no. 1 is her son. Petitioner no. 2 is wife of pre deceased son of Late Smt. Balwanti Kashyap and petitioner no. 3 and 4 are grand children of Smt. Balwanti Kashyap. Petitioner no. 3 and 4 are minors, therefore, petitioner no. 2 who is their mother is competent to act as guardian ad-litem for them being their natural guardian. It is further stated that the petitioners are in possession of one room, kitchen and a small toilet on the ground floor and two rooms, kitchen and two bath room on the first floor. The petitioner no. 1 alongwith his wife, one daughter aged about 10 years studying in the 6th standard and one son aged about 5 years studying in 1st standard are in use and occupation of one room, kitchen and a small toilet on the ground E-160/10 Ishwar Dutt Kashyap & Ors. Vs. Smt. Panna Page 2 of 10 //3// floor. The petitioner no. 2 is in possession of one room, kitchen and bath room towards the front side of the first floor alongwith petitioner no. 3 and
4. Petitioner no. 5 is in occupation of one small room, one kitchen and bath room on the first floor. Due to lack of accommodation, the petitioner no. 5 is forced to live in small room on first floor. Petitioner no. 5 has two married daughters and they used to visit the petitioners and the petitioners needs the accommodation for them also. It is further stated that the respondent has sublet the suit premises without obtaining the prior written consent of the petitioners and not only this, the respondent has also acquired a vacant residential premises at 16554-P, 118, Ganesh Pura, Tri Nagar, Delhi. It is prayed that an eviction order on the ground of bona fide requirement may kindly be passed.
2. Leave to defend application alongwith affidavit filed on behalf of the respondent. The respondent has stated that there is no relationship of landlord and tenant between the parties and petitioner no. 3 and 4 are minors but the petitioners have not filed any application u/o XXXII CPC, therefore the petition is liable to be dismissed. It is further stated that Late Sh. Tara Chand was the original tenant of the suit premises and the respondent is wife of Late Sh. Tara Chand but the petitioners have not impleaded other legal heirs of Late Sh. Tara Chand. Even, the other legal heirs of Smt. Balwanti Kashyap have not been impleaded, therefore, the petition is bad for non joinder of necessary parties. It is further stated that mother of the petitioner no. 1 had earlier also filed an eviction petition against the respondent but the said petition was got withdrawn but these E-160/10 Ishwar Dutt Kashyap & Ors. Vs. Smt. Panna Page 3 of 10 //4// facts were not disclosed by the petitioners. After death of Late Smt. Balwanti Kashyap, the need of the petitioners for accommodation has diminished. The respondent is an old lady of 88 years old and have no other alternative accommodation or any other person to look after her. It is further stated that the petitioners have four rooms, out of which one big room on the ground floor as well as on the first floor are quite sufficient for the petitioners. Even one room on the first floor which has been shown as kitchen is actually a full fledged room measuring 11' X 11 and same is lying locked by the petitioners. It is further stated that the medical report of petitioner no. 5 have been procurred in collusion with the employees/doctors of various hospitals. All other averments made in the petition were denied.
3. Reply to the leave to defend application alongwith counter affidavit filed on behalf of the petitioners. It is stated in the counter affidavit that if the petitioners are not the owner/landlord of the suit premises, then who else are the landlords are not disclosed by the respondent. It is further stated that earlier an eviction petitoin was withdrawn as permission under Slum Act was not obtained before filing the said eviction petition. It is denied that petitioners are in occupation of four rooms. The respondent failed to show as to where the room measuring 11' X 11' is located. All other averments made in the leave to defend application were denied.
4. Arguments heard. Ld. Counsel for the respondent also filed written arguments. Record perused and considered.
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5. Ld. Counsel for the petitioner relied upon the following rulings :-
(i) Zulfiquar Ali Khan & Ors. Vs. J.K.Helene Curtis Ltd. & Ors., 2002 (2) RCR 231.
(ii) R.David Vs. Kanta Rani & Ors., 1993 RLR 346. (iii) Silva Uddin Vs. Nagaraju, 2005 (1) RCR 173. (iv) Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors., 155 (2008) DLT 383. (v) Benson Shoes Vs. Chunni Lal Takkar, 167 (2010) DLT 678. (vi) Harivansh Lal Vs. Madan Lal, 1997 RLR 383. (vii) Dev Raj Bajaj Vs. R.K.Khanna, 1996 RLR 125.
6. Ld. Counsel for the respondent relied upon the following rulings :-
(i) O.P.Kapur Vs. Smt. Padma Kaur, 1972 RLR 32. (ii) Fateh Singh Vs. Hukam Chand, 1977 RLR 244. (iii) A.K.Rawat Vs. Shakuntla Anand, 1982 RLR 115. (iv) Nem Chand Daga Vs. Inder Mohan, 2002 RLR 222. (v) Gurdial Singh Vs. Raj Kumar, 2002 RLR 230. (vi) Liaq Ahmed Vs. Habeeb Ur Rehman, 2000 RLR (SC) 316.
(vii) Precision Steel and Engineering Works and Anr. Vs. Prem Deva Niranjan Deva Tayal, 1982 (2) RCR 544.
(viii) Om Prakash Saluja Vs. Saraswati Devi, 23 (1983) DLT 392.
Ld. Counsel for the
7. The present petition has been filed u/s 14 (1 ) (e) r/w section 25-B of DRC Act and in order to succeed in such a petition, petitioner has to prove (i) E-160/10 Ishwar Dutt Kashyap & Ors. Vs. Smt. Panna Page 5 of 10 //6// Ownership of the suit premises ; (ii) Purpose of letting; (iii) Alternative accommodation; and (iv) bonafide requirement;. Let the same be discussed in detail.
8. Ownership & Purpose of letting The respondent has disputed the ownership and relationship of landlord and tenant between the parties. However, according to the respondent Late Sh. Tara Chand, husband of the respondent was tenant in the suit premises. If the husband of the respondent was tenant then, after his death, the respondent being his wife became a joint tenant in the suit premises. The repsondent not disclosed, if the petitioners are not the owner/landlord qua the suit premises then who are the landlord and to whom she is paying rent. On the other hand, the petitioners have filed the copy of sale deed in favour of Late Smt. Balwanti Kashyap. It is well settled law that a landlord is not required to prove absolute ownership as required under the Transfer of Property Act. It was held in Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors., 155 (2008) Delhi Law Times 383 that "A landlord is not required to prove absolute ownership as required under the Transfer of Property Act. He is required that he is more than a tenant". It has also been held in Ramesh Chand Vs. Uganti Devi, 157 (2009) DLT 450 by the Hon'ble High Court of Delhi that, " It is settled preposition of law that in order to consider the concept of ownership under Delhi Rent Control Act, the Court has to see the title and right of the landlord qua the tenant. The only thing to be seen by the Court is that the landlord had been receiving rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner howsoever E-160/10 Ishwar Dutt Kashyap & Ors. Vs. Smt. Panna Page 6 of 10 //7// imperfect his title over the premises cannot stand in the way of an eviction petition under Section 14 (1) (e) of the DRC Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates estoppels against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the premises, to whom he is paying rent, acts dishonestly".
9. The respondent has further contended that the present petition is bad for non joinder of necessary parties as all the legal heirs of Late Sh. Tara Chand were not impleaded, and the other co-owners of the suit property were also not impleaded. It is well settled law that after the death of a tenant, all his legal heirs inherited the tenancy as joint tenancy only. They are tenants in common. An eviction petition filed against one of the LRs of original tenant is maintainable and it is not necessary to implead all the LRs of the deceased tenant. It is well settled law that a landlord is not required to implead all the joint tenants in an eviction petition. It was held in Inderpal Khanna Vs. Commander Bhupinder Singh Rekhi, 2008 VIII AD (Delhi) 328 that "It is settled law that on death of tenant, tenancy devolves upon legal heirs as a joint tenancy. LRs are joint tenants and not tenants in common. Where out of many, only one or two LR of deceased tenant are in occupation of premises, an eviction petition by landlord against those who are in occupation of the premises is a valid petition. It is not necessary for landlord to implead all the legal heirs of the deceased tenant or to implead even those who are not in occupation and possession of the E-160/10 Ishwar Dutt Kashyap & Ors. Vs. Smt. Panna Page 7 of 10 //8// premises".
10. It is also well settled law that any co-owner can file an eviction petitoin on the ground of bona fide requirement as it is not necessary that all the co-owners should file an eviction petition. The respondent further contended that petitioner no. 3 and 4 are minor but the petitioners have not taken permission u/o XXXII CPC to represent them by the legal guardian. The petitioner stated that petitioner no. 2 is mother of petitioner no. 3 and 4 and beigh their natural guardian, she is competent to act as guardian ad-litem for them. It is not in dispute that petitioner no. 2 is mother of petitioner no. 3 and
4. Petitioner no. 2 being natural guardian of petitioner no. 3 and 4 can act as guardian ad-litem for them, therefore, I do not find any substance in the contention of the respondent and the smae is rejected. So far the purpose of letting is concerned, after the judgment of Hon'ble Apex Court in Satyawati Sharma Vs. Union Of India III (2008) SLT 553, an eviction petition is maintainable on the ground of bonafide requirement in respect of the property which were let out for commercial purposes. Hence both the ingredients are decided in favour of the petitioner and against the respondent.
11. Alternative accommodation & Bonafide requirement The respondent contended that the petitioners have four rooms, out of which one big room is on the ground floor and one big room on the first floor. One room shown as kitchen by the petitioners is measuring about 11' X 11' and the same is lying locked by the petitioners. The respondent further stated that after death of Late Smt. Balwanti Kashyap, the requirement of the petitioners also diminished and the medical papers of the petitioner no. 5 are forged. On the other hand, the petitioners stated that the complete accommodation available to the petitioners have been described in the E-160/10 Ishwar Dutt Kashyap & Ors. Vs. Smt. Panna Page 8 of 10 //9// petition and is shown in the site plan and there is no room measuring 11' X 11' used as kitchen and lying locked. It is denied that after the death of Smt. Balwanti Kashyap, the need of the petitioners is diminished. The respondent has not disputed that the family of the petitioner no. 1 consists of himself, his wife and two school going children. The respondent has also not disputed that the family of petitioner no. 2 consists of petitioner no. 2 herself and her two school going children. It is also not disputed that petitioner no. 5 is also living in the suit premises and his two married daughters used to visit the suit property. It is well settled law that a married couple needs atleast two rooms. The petitioner no. 1 and petitioner no. 2 needs atleast two rooms each. Petitioner no. 5 also needs one room for herself and one room for her married daughters. Thus the petitioners need atleast six rooms. For the sake of arguments, even if it is assumed that the petitioners have four rooms, even then the requirements of the petitioners does not fulfilled. The respondent has not disclosed any other accommodation available with the petitioners else where in Delhi. The ration card of petitioner no. 5 clearly shows that he is about 80 years old. The medical papers of petitioner no. 5 established that he is suffering from various old age diseases. It is always difficult for a person who is the about 80 years old to climb up stairs. Therefore, the need of the petitioner no. 5 to have accommodation on the ground floor is bona fide. It is held in Dev Raj Bajaj Vs. R.K.Khanna, 1996, RLR, 125 that where the landlord and his wife were old aged then this fact alone is sufficient for eviction of the tenant from the ground floor. A landlord can ask for ground floor for his convenience and comfort for his health.
12. In view of the above discussions, the respondent has failed to raise any triable issue. On the other hand, the petitioners have successfully established E-160/10 Ishwar Dutt Kashyap & Ors. Vs. Smt. Panna Page 9 of 10 //10// that the petitioners bona fidely need the suit premises for themselves and their family members dependent upon them for residence as they have no other suitably alternative accommodation available with them except the tenanted premises. The rulings relied upon by the Ld. Counsel for the respondent are not applicable to the facts of the present case. Hence the petitioners are entitled for an eviction order u/s 14 (1) (e) r/w section 25-B of DRC Act.
13. Accordingly, the application of the respondent seeking leave to defend is dismissed and the petitioners are entitled for an eviction order and therefore an eviction order u/s 14 (1) (e) r/w section 25-B of D.R.C. Act is passed in favour of the petitioners and against the respondent in respect of the tenanted premises i.e one room, one kitchen, one bathroom, courtyard and WC on the ground floor, more specifically shown in red color in site plan Ex. C-1 (exhibited today while passing the order). However, it is made clear that the petitioners shall not be entitled to get the eviction order executed before expiry of six months running from today. No order as to cost.
File be consigned to Record Room.
(Announced in the open court (Pritam Singh)
on 08.05.2012) ARC/Central/THC/Delhi
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