Delhi District Court
Smt. Pushpa Tandon vs Smt. Bimla Sharma on 20 October, 2007
IN THE COURT OF SH. BHUPESH KUMAR, ADDL. RENT
CONTROLLER, KARKARDOOMA COURTS:DELHI
SUIT NO. M-14/07
IN THE MATTER OF :-
1. Smt. Pushpa Tandon
W/o late Sh. Vijay Tandon
2. Sh. Sunil Tandon
S/o Late Sh. Vijay Tandon
3. Km. Preeti,
D/o Late Sh. Vijay Tandon
All r/o 1248, DDA Janta Flats,
Nand Nagri, Delhi.
4. Mrs. Rashmi
D/o late Sh. Vijay Tandon
W/o Sh. Chander Taneja,
R/o 1243, DDA Janta Flats,
Nand Nagri, Delhi.
........ Petitioners
Versus
Smt. Bimla Sharma
W/o late Sh. A.K. Sharma
R/o 1243, FF, DDA Janta Flats,
Nand Nagri, Delhi.
......... Respondents
Date of Order : 20.10.07
1. By this order I shall dispose off the application of the respondent seeking leave to defend against the eviction petition U/s 14(1)(e) of the DRC Act as filed by the petitioner.
2. Before proceeding ahead, it is necessary to re- produce the brief facts of the petition filed by the petitioner. The petitioner has filed the present petition U/s 14(1)(e) r/w Section 25B of DRC Act on the ground that husband of the petitioner Sh. Vijay Tandon was owner in respect of flat No. 1243, DDA Janta Flats, Nand Nagri, Delhi. During his lifetime husband of petitioner no. 1 let out the tenanted premises consisting of two small rooms, kitchen, latrine, bathroom and open lobby on the first floor of suit premises specifically shown in the site plan for residential purpose @ Rs. 2500/- p.m. besides electricity and water charges. Separate electric meter installed for electricity supply to tenanted premises. Unfortunately sh. Vijay Tandon husband of petitioner expired leaving behind his widow with his petitioner, one son and two daughters and after the demise of Sh. Vijay Tandon all the petitioners have become owners/landlords in respect of the tenanted premises. Late Sh. Vijay Tandon was owner of two flats i.e. number 1243 and 1248, DDA Janta Flats, Nand Nagri, Delhi. Flat no. 1248 consisting of one room on ground floor alongwith latrine, bathroom and small store and one room, latrine and kitchen on first floor shown yellow in the site plan. Flat no. 1243 consist of ground floor and first floor. One room on the ground floor shown pink colour in the site plan is in possession of petitioner no. 4 Smt. Rashmi Taneja. Petitioner no. 4 is having dispute with their in-laws and she is alongwith her husband Chander Taneja and two daughters namely Kanika aged about 6 years and Mansa aged about 2 years started residing on the ground floor and the said portion exclusively belongs to petitioner no. 4 being owner as the same was given to her by her father Sh. Vijay Tandon during his lifetime. Even the second daughter of petitioner no. 4 was born in the said portion. The family of petitioner no. 1 consist of herself, her son i.e. petitioner no. 2 who is married having one daughter born on 6.12.06, petitioner no. 3 is aged 24 years, she is teacher and teaching in Pragati Middle Public School and in the evening she is also taking tuitions and number of students comes to her for taking tuition from the petitioner no. 3. The petitioners have no other reasonable suitable residential accommodation. The property under the possession of the petitioner is too short and unable to accommodate themselves and their family members in the suit property and as such property undr the possession of the respondent is required bonafide by the petitioner for themselves and their family members dependent upon them. The mother-in-law of petitioner no. 2 staying at Moradabad having love and affection with her daughter i.e. wife of petitioner no. 2 and frequently visit and reside with petitioner no. 2. Petitioner no. 1 is having four brothers namely Sh. Ram Parkash residing at Sahibabad, Sh. Sham Prakash, Sh. Budh Prakash and Sh Dutt Prakash all residing at Bareilly and all of them alongwith their family members visit petitioner no. 1 and stay with her. The petitioner require atleast one guest room for their relatives/guests. After the death of her husband, petitioner no. 1 remains busy in performing Pooja and related activities and has made very small Mandir on ground floor and performs Pooja though she feels disturbance due to short accommodation and require separate pooja room as all the petitioners are religious minded and perform pooja. The requirement of petitioners is one room for petitioner no. 1, one room for pooja, two rooms for petitioner no. 2 and his family, one room for petitioner no. 3 and one room for relatives and guests. The petitioner are not having any separate dinning/drawing/sitting room for her guests/relatives who visit them. Even otherwise due to acute paucity of accommodation the tenanted premises under the possession of the respondent is required bonafide by the petitioners for their residence as well as their family members dependent upon them. The respondent is a chronic defaulter and not paying rent even inspite of service of notice dt. 27.10.98. Sh. Vijay Tandon during his lifetime filed a petition U/s 14(1)(a) of DRC Act against the respondent which was disposed off by the Court of Sh. Rakesh Syal, the then Ld. ARC and dismissed the same vide order dt. 29.7.04. The respondent has also filed a petition U/s 45 of DRC Act whereby falsely alleged that her electricity was disconnected. On these submissions prayer was made to pass an eviction order in favour of the petitioner and against the respondent in respect of suit premises.
3. The respondent has filed application seeking leave to defend alongwith affidavit in support of the said application. In the affidavit it has been deposed by the respondent that the respondent may be allowed to leave to defend and contest the eviction petition on the ground that the petitioner has been filed by the petitioner due to their animity with the deponent due to false litigation without their bonafide requirement. In the previous litigation between the petitioner and their predecessor in interest with the deponent at no point of time neither the late Sh. Vijay Tandon nor the petitioner have ever alleged about their requirement of suit premises. The petition is malafide and has been filed to evict the respondent by hook or by crook. Petitioners have not filed any copy of site plan of property no. 1248 which consist of ground floor and first floor. The accommodation in possession of the petitioner is highly sufficient to meet their alleged requirement and they do not require any additional accommodation. The petitioner have not come to the court with clean hands as they have falsely stated the rate of rent of tenanted premises as Rs. 2500/- p.m. besides electricity and water charges. It was submitted that the monthly rent is Rs. 750/- + Rs. 50/- on account of electricity and water charges. The respondent was inducted as tenant in the premises on 6.9.95 by late Sh. Vijay Tandon who after sometime started causing harassment to the respondent and started threatened her to forcibly dispossess from the suit premises, as result of which the respondent has filed suit for injunction bearing No. 544/98 seeking restrained order from the Court on being served Sh. Vijay Tandon stated that he would not dispossess the respondent from the suit premises without due process of law. Sh. Vijay Tandon refused to accept the rent and the respondent started depositing rent in the court U/s 31 of Punjab Relief and Indebtedness Act from time to time. Despite the same Sh. Vijay Tandon filed an eviction petition against deponent bearing No. E 362/03 claiming rent @ Rs. 2500/- p.m. In the said petition order U/s 15(1) of DRC Act was passed directing the respondent to deposit of Rs. 800/- p.m. i.e. Rs. 750/- as rent and Rs. 50/- as electricity charges. The said petition was ultimately dismissed by the Court vide order dt. 29.7.04 holding the rate of rent @ Rs. 800/- p.m. At no point of time there was any whisper on the part of the landlord that he requires the premises for his bonafide requirement. Therefore, the main contention of the petitioner is to enhance rent from Rs. 800/- p.m. to Rs. 2500/- p.m. On 17.20.05 when the respondent was away to Dehradun to attend marriage of her relative, electricity was cut off and when she returned on 18.2.05 she came to the knowledge of the same. The respondent has filed petition U/s 45 of DRC Act against the petitioners bearing no. (45) 9/05 and vide order dt. 28.4.05 the interim application of the respondent was allowed and the electricity and the electricity was restored. No allegation of bonafide requirement was also made by the petitioner in the proceedings U/s 45 of DRC Act. The petitioners have reasonable suitable residential accommodation with them as after the death of Sh. Vijay Tandon they are jointly residing in flat no. 1248 while the ground floor of flat No. 1243 is lying locked. Had there been any bonafide requirement of the petitioner then they would not have locked the ground floor of the flat in dispute. The petitioner have concealed the material particulars of about accommodation in their possession. The accommodation in possession of the petitioner in flat No. 1243 consist of two rooms, latrine, bathroom below the suit premises. They have another two rooms, kitchen, latrine, bathroom at the end and other side of property on ground floor. Besides one room, one verandah, kitchen, latrine, bathroom on the first floor in the said flat. The petitioner have not disclosed the the accommodation in their possession in flat no. 1248, DDA Janta Flat, Nand nagar, Delhi which consist of two rooms on ground floor, gallery, kitchen, latrine, bathroom on the ground floor besides one big room, verandah, kitchen, latrine, bathroom on the first floor. The accommodation in possession of the petitioner is in flat No. 1248 is highly sufficient to meet their requirements and they do not need any additional accommodation for their requirement. It is submitted that out of two rooms below the suit premises, late Sh. Vijay Tandon let out one room to south Indian namely Mr. & Mrs. Dutta who vacated the same about 5 years back . Even otherwise the petitioners are seeking partial eviction on the part of the premises against respondent. The petitioners are accustomed to live jointly in one house and they have been living jointly in flat no. 1248, whereas the accommodation on the ground floor of lat no. 1243 is locked and is lying surplus with the petitioners as admitted by them in their written statement filed in petition U/s 45 of DRC Act. It is wrong and denied that Smt. Rashmi Taneja has been having any dispute with the in- laws. It is wrong that Rashmi Taneja is living alongwith her husband, two children on the ground floor of flat no. 1243 or that the said flat is owned by petitioner no. 4 i.e. Rashmi Taneja who is living with her in-laws at Kalkaji, New Delhi. Mother-in-law of petitioner no. 4 has expired recently. She or her husband got share in the property of her in-laws, thereafter she purchased flat No. A/75 in DLF colonly, Shalimar Garden, U.P. After leaving few days in rented accommodation she has been residing in her said flat in Ghaziabad. It is also wrong that petitioner no. 3 is a Teacher in Pragati Middle Public School and is taking tuitions and it is submitted that she is not working anywhere. It is further deposed that the respondent has never seen the alleged brothers of petitioner no. 1 coming to the suit property or living with the petitioners. The petitioners have been trying to exaggerate their claim of alleged bonafide requirement. It is wrong and denied that the petitioners need any guest room or that petitioner no. 1 requires any Puja Room. The deponent never saw her performing Puja or going to religious place. The alleged requirement of the petitioners for drawing and sitting room is also fictitious as the flats are built upon plot of 35 Sq. yards which cannot have the alleged amenities. It is further submitted that neither late Sh. Vijay Tandon nor the petitioner are the owner of flat no. 1243 as in the record of DDA, it is one Sh. Jagir Singh in whose name the property stands in the official record of DDA. The petition is not maintainable as the petitioners themselves offered the respondent to sell the suit premises to her for a consideration of Rs. 1,50,000/- before filing of the petition U/s 45 of DRC Act. The deponent is a widow lady and has no source of income except the pension of her husband to the tune of Rs. 2000/- p.m. and when the deponent could not purchase the suit premises, she started negotiation for sale of entire flat through property dealer but nobody could purchase the same on account of deponent being in possession of the suit premises being an old tenant.
4. The petitioner has filed reply to the application for leave to defend of the respondent, wherein it was submitted that the application is not maintainable as the same is not signed and verified as comtemplated under DRC Act. There is no verification, hence, the application is no application in the eyes of law. It is further submitted that the application has not been filed within stipulated period of 15 days.
On merits, it was submitted that there is no triable issue. The petitioner has filed counter affidavit and prayer was made to dismiss the application. In the counter affidavit the petitioner has denied that the petition is malafide, non bonafide, fanciful or liable to be dismissed. It was further denied that the petition has been filed after thought due to animity with the respondent due to past litigation. On account of ill advice of earlier counsel that the property in question under the possession of respondent is required bonafide was not stated and since respondent was not paying rent as such petition was filed on account of non payment of rent. On account of health of husband of petitioner no. 1 her deceased husband Sh. Vijay Tandon was unable to properly look after the matter and was not properly adviced and he unfortunately expired. Though property in question required bonafide by the petitioner. It was also denied that the petitioner has filed present petition after thought or to evict the respondent by hook or by crook. It was denied that the petitioner has not filed any copy of site plan in respect of property no. 1248, DDA Janta Flats, Nand Nagri, Delhi which consist of ground floor and first floor. It is habit of the respondent to make wrong submission in the judicial proceedings and even in the affidavit. The site plan was supplied alongwith copy of the petition. The site plan was in respect of both the flats viz. Flat No. 1243 and 1248. It was denied that the accommodation in possession of the petitioners in their exclusive possession is highly sufficient to meet their requirement and they do not need any additional accommodation. It is not their additional accommodation rather bonafide requirement of the petitioners. It is denied that the rate of rent is Rs. 750/- + Rs. 50 p.m. on account of electricity charges. It was denied that after creation of tenancy Sh. Vijay Tandon husband of petitioner no. 1 started causing harassment to the respondent and theatening her to forcibly dispossess her from the suit premises. Reagarding passing of order is matter of record. Sh. Vijay Tandon was not advised and no appeal was preferred and the same is separate cause of action. The property in question was let out @ Rs. 2500/- p.m. besides electricity and water charges. It was denied that in absence of the respondent when she was away to Dehradun on 17.2.05, electricity was cut off as alleged. It was also denied that the electricity was not restored. It is not disputed that the respondent has filed false and frivolous petition U/s 45 of DRC Act and the proceeding were pending before Ms. Kamini Lau, Ld. ARC where the respondent prayed for separate electricity meter. On account of ill advise of earlier counsel who was not having good experience with regard to ground of bonafide though explained to him that the property in question is required bonafide and earlier counsel stated that separate petition would be filed and as such this fact was not stated in petition U/s 14(1)(a) of DRC Act and reply to the petition U/s 45 of DRC Act. However, the respondent cannot take benefit of the same. It was denied that the flat no. 1243 ground floor has been lying locked. A correct and detailed submission is made in the petition. Without prejudice to the rights of the petitioners it is submitted that this court be pleased to see the requirement of the petitioners as well as accommodation available to the petitioners. Flat No. 1248 as shown in the site plan and there are two rooms and also see the flat no. 1243 consists on ground floor and presume for argument sake the premises under the possession of the petitioners consists of three rooms though the family of petitioners consist of petitioner no. 1 herself, her son i.e. petitioner no. 2 his wife and one daughter, one unmarried daughter, i.e. petitioner no. 3 and one married daughter i.e. petitioner no. 4 namely Smt. Rashmi who is married and residing on the ground floor of flat no. 1243 alongwith her husband and two daughters and as such taking from any angle the entire accommodation under the possession of the petitioners is not sufficient hence the plea of the respondent is no plea in the eye of law. Petitioner no. 4 Smt. Rashmi is staying on the ground floor of flat no. 1243 alongwith her husband and two daugher having election Identity card and younger daughter of petitioner no. 4 was born in this premises. Even taking from any angle there is no denial on the part of the respondent about family members of the petitioners and even relatives and guests of the petitioners also visit and stay with the petitioner. It was denied that the petitioners have concealed material particulars about accommodation in their possession. It was denied that the accommodation in possession of te petitioner in flat no. 1243 consist of two rooms. It was denied that they have another two rooms, kitchen, latrine, bathroom at the end and other side of property on ground floor as alleged. It was also denied that besides one room, one verandah, kitchen, latrine, bathroom on the first floor in the said flat as alleged. It was denied that similarly the petitioners have not disclosed the accommodation in their possession in flat No. 1248. The correct accommodation is mentioned in the petition also shown in the site plan. It was denied that the petitioners have concealed the accommodation as alleged. During his lifetime sh. Vijay Tandon let out a portion to Mr. Dutta and he was in occupation of one room on the ground floor in flat no. 1243 and not two rooms as alleged, who occupied the same in 1995 and vacated the same in the year 2000 and thereafter petitioner no. 4 Smt. Rashmi started residing alongwith her husband and two daughters. It was denied that the petitioners are seeking partial eviction of part of the premises. It was denied that the petitioners have been and are accustomed to live shorter and jointly in the house and they are living jointly in flat No. 1248, whereas the accommodation of the ground floor at 1243 is locked or is lying surplus with the petitioners as admitted by them in their written statement filed U/s 45 of DRC Act. Petitioner no. 4 Smt. Rashmi Taneja has dispute with their in-laws and she is residing alongwith her husband and two daughters on ground floor in flat no. 1243. It was denied that petitioner no. 4 is residing at Kalkaji alongwith her in-laws. It was denied that petitioner no. 4 purchased a flat No. A/75, in DLF Colony, Shalimar Garden, U.P. The husband of petitioner no. 4 is having a flat at Ghaziabad but number of said flat is wrong. It was denied that the petitioner no. 3 is not working anywhere. Certificate issued by School is placed before the Court. Petitioner no. 1 has four brothers and they have visiting terms with petitioner no. 1 and have been residing with her whenever they come to Delhi. It is denied that the respondent has never seen brothers of petitioner no. 1. The petitioners need a room for guests and petitioner no. 1 requires Puja room as she is religious minded lady. It was denied that the requirement of the petitioner for drawing and sitting room is fictitious. It is denied that neither Sh. Vijay Tandon nor the petitioner after his death are owners of flat no. 1243 as in the official record of DDA it is one Jagir Singh in whose name the property stands. It was denied that the documents of transfer of flat by Sh. Jagir Singh in favour of Sh. Vijay Tandon are illegal and on the basis of same neither late Sh. Vijay Tandon nor petitioners could be termed as owner of flat in question. The respondent is estopped from raising such false and frivolous allegations. It was denied that this transaction between Jagir Singh and Vijay Tandon is invalid, illegal or nonest of any case as alleged. It was denied that the petitioner is not maintainable without impleading sh. Jagir Singh as necessary party. It was denied that the petitioners themselves offered respondent to sell suit premises to her for consideratin of Rs. 1.50 lacs before filing of petition U/s 45 of DRC Act. It is denied that the respondent has no source of income except the pension of her husband to the tune of Rs. 2000/- p.m. All the sons of respondent are working and earning. One of the son of respondent is working in bank and other son is working in tours and travels. It is denied that the respondent has good cause for leave to defend and nor a single triable issue has been raised by the respondent. Hence, respondent is not entitled for leave to defend.
5. Rejoinder was filed by the respondent wherein the averments made in the reply/counter affidavit by the petitioner have been generally denied and those made in the application seeking leave to defend have been reaffirmed and reiterated.
6. Here is it necessary to mention that earlier the respondent had filed application seeking leave to defend but the affidavit in support of the application was no attested. Subsequently, the respondent moved an application U/s 6 Rule 17 CPC which was dismissed vide order dt. 11.9.06. Vide order dt. 4.11.06 of my Ld. Predecessor court the eviction order was passed. The respondent preferred an appeal and vide order dt. 6.1.07 of Hon'ble Hight Court the same was allowed and the respondent was allowed to file another affidavit duly sworn before the Oath Commissioner. In view of the order of Hon'ble Hight Court the matter was remaned back. The respondent filed additional affidavit. Even thereafter the respondent failed to file proper affidavit and moved application U/s 151 CPC for permission to file additional affidavit. Vide order dt. 8.8.07 in view of judgment D.N. Gupta vs. Jaswant Singh, 21 (1982) DLT 8, the application was allowed and respondent filed amended affidavit. The petitioner has not filed counter affidavit to said additional affidavit and stated that his earlier affidavit may be read.
7. I have heard the arguments of Sh. R.K. Rawal, Ld. Counsel for petitioner and Sh. C.S. Bhandari, Ld. Counsel for respondent.
8. A landlord will be entitled to an order for eviction U/s 14(1)(e) of DRC Act if he is able to prove :
a. that the suit premises were let out for residential purposes;
b. that he is owner/landlord of the suit premises; c. that the petitioner has no other reasonably suitable residential accommodation and d. that the premises are required bona fide by the petitioner for occupation as residence for himself or for any member of his family dependent upon him
9. It is not disputed that the property was let out for residential purpose. Hence, no further discussion is required on this score.
10. Ld. Counsel for respondent has argued that the property in question is not owned by the petitioners. The property stands in the name of one Sh. Jagir Singh as per official record of DDA. The documents stated to be executed by Jagir Singh in favour of the Sh. Vijay Kumar Tandon, deceased husband of petitioner no. 1 are forged and fabricated one. Further, the property was not transferred by way of registered sale deed. The documents on which the petitioners rely do not prove that the petitioners are owner of the property. Proving ownership is a paramount consideration for seeking eviction U/s 14(1)(e) of DRC Act which is a triable issue.
On the other hand Ld. Counsel for petitioner submitted that the respondent has not denied this fact that she had taken the permises in question on rent from late Sh. Vijay Tandon. Sh. Vijay Tandon has purchased the property from Sh. Jagir Singh vide General Power of Attorney, agreement deed, receipt of consideration amount etc. After the death of late Sh. Vijay Tandon the petitioner no. 1 being wife and remaining petitioners being children of late Sh. Vijay Tandon became owner being legal heirs of Sh. Vijay Tandon. On this score in case Sushila Kanta Chakravarty Vs. Rajeshwar Kumar, AIR 2000 413, it was held that invoking the aid of S. 14(1)(e) of the Act in order to maintain a petition it cannot be said that the owner has to be an absolute owner. What the Legislature intended in incorporating the word 'owner' in S. 14(1)(e) of the Act is not to use the same in the sense of absolute owner but it was used in contradistiction with a landlord as defined who is not an owner but who holds the property for the benefit of another person. The word 'owner' occurring in S. 14(1)(e) of the Act means something more than a tenant. Thus, a person in whose favour a agreement to sell-cum-power of attorney has been executed and has assumed possession after making substantial payment in terms of agreement of the sale price would be owner within the meanings of S. 14(1)(e) of the Act.
In the light of abovesaid judgment to prove owner as required U/s 14(1)(e) of DRC Act the documents on which the petitioners have relied in the petition and counter affidavit are sufficient. Therefore, the petitioners prima facie succeeded in proving the ownership for this purpose.
11. The third and fourth requirements are inter-mingled and are taken up together. The respondent in the affidavit has stated that the respondent has number of triable issues regarding these requirements. The first contention is that the petitioners have concealed the total accommodation available to them. It was submitted that the petitioners in addition to two rooms, one latrine, one bathrooms below the suit premises in flat no. 1243 have another two rooms, kitchen, latrine and bathroom at the end and other side of property on ground floor. Besides one room, one verandah, kitchen, latrine and bathroom on first floor. Therefore, in view of the contention of respondent the petitioners are having total four rooms, one kitchen two latrine bathrooms in flat no. 1243 on the ground floor of the suit premises. On this score, it is found that the petitioners have filed site plan of total accommodation available to them in flat no. 1243 and as per site plan the petitioners are having one room, one kitchen, on bathroom/WC on the ground floor as shown pink in colour. Further, as per site plan the total accommodation on the first floor i.i. In the possession of the respondent are two rooms, kitchen bathroom, lobby shown red in the site plan. Here it is necessary to mention that the respondent has not filed any site plan in support of her contention. In this regard reference can be made V.S.Sachdeva Vs. M.L.Grover, 1997 RLR 439, wherein it was held that the site plan filed by the landlord with petition deserves full credence when tenant omit to file counter site plan. In R.K.Bhatnagar Vs. Sushil Bhargava ,AIR 1987 Delhi 363, it was held that if a tenant does not file a site plan showing that the plan filed by the landlord is incorrect then the site plan filed by the landlord would be assumed to be correct.
In this case also the respondent has not filed any counter site plan. Therefore, in view of the above said judgments, there is no ground to doubt the site plan filed by the petitioner and to doubt the genuineness of the accommodation available to the petitioners in view of their petition, counter affidavit and site plan.
12. Ld. Counsel for respondent has also further vehemently argued that Late Sh. Vijay Tandon, husband of petitioner no. 1 had filed petition U/s 14(1)(a) of DRC Act and also filed written statement to the petition filed by the respondent U/s 45 of DRC Act and to the civil suit filed by the respondent against the petitioner for permanent injunction, but late Sh. Vijay Tandon neither in the petition filed U/s 14(1)(a) of DRC Act nor in the written statement filed U/s 45 of DRC Act has ever at any stretch of time pleaded that he or his family members bonafidely required the property in question or that the property where they are earlier living is not sufficient to meet their requirements.
Regarding the earlier litigation this fact was not disputed. Now the question arises whether non pleading of the plea of bonafide requirement in the earlier litigations have any effect on the present petition. At thrashhold the answer to it is in negative. The procedure to be followed for petition U/s 14(1)(a) of DRC Act is altogether different from the procedured to be followed in the present petition. Rather, a single petition on ground of non payment of rent and bonafide requirement cannot proceeded together. Regarding the petition filed U/s 45 of DRC Act by the respondent, wherein the husband of the petitioner no. 1 has filed written statement does not have any effect on this petition also as it was for the respondent i.e. petitioner to prove in the petition U/s 45 of DRC Act that the essential supply was withhold without any sufficient cause. The suit for permanent injunction was also required to be proved by the respondent. Moreover, the cause of action in this case altogether different from the earlier petitions and the earlier litigations if any does not have any effect on the present petition and is not sufficient to prove that the petitioner has filed the present petition with malafide intention.
13. Further, the respondent in the affidavit has contented that petitioner no. 4, Smt. Rashmi who is married daughter is not residing on the ground floor of flat no. 1243 as submitted in the petition. In this regard it was submitted that Smt. Rashmi is residing with her husband and in-laws at Kalkaji. She has also purchased a flat no. A/75, in DLF Colony, Shalimar Garden, UP. Therefore, there is no reuirement for accommodating her, her husband and children in flat no. 1243 ground floor. The petitioners with malafide intention have pleaded on this ground.
On the other hand, the petitioners in the counter affidavit have submitted that Smt. Rashmi, daughter of petitioner no. 1 is not having good relations with her in- laws and she alongwith her husband and two minor daughters started residing on the ground floor of flat no. 1243 after the death of her father late Sh. Vijay Tandon. Even the younger daughter of petitioner no. 4 was born in the same premises. Regarding the birth of child of petitioner no. 4 in flat no. 1243 has not been specifically denied by the respondent. But there is mere denial only in the rejoinder that Smt. Rashmi alongwith her husband and two daughters are living in flat no. 1243. Further, as per contention of the petitioner earlier the portion where Smt. Rashmi and her family is living was rented out to one Mr. Dutta but during the lite time of Sh. Vijay Tandon. On this score also there is simple denial without any further explanation in the rejoinder. One of the contention of Ld. Counsel for petitioner was that baby Kanika, dauther of petitioner no. 4 is studying at Neev School, 17-B MIG, Pocket A, GTB Enclave, Delhi and has relied upon the progress report of baby Kanika. But there is no denial of this progress report filed on 17.9.05 before filing of rejoinder. On this score Ld. Counsel for petitioner has stated that the respondent is denying each and every fact without ascertaining the true facts and leave to contest should not be granted in these circumstances. Reliance is made in case Shankar Lal vs. Thambu Ram, 2000 RLR (Note) 17, wherein Hon'ble High Court has, inter alia, held that the tenant who had denied every allegation was callous enough to deny that daughter of the landlord had became a widow. ........... There has to be some limit to ingenuity.
On this score, the respondent has failed to raise any triable issue that petitioner no. 4 is not residing at flat no. 1243. One of the contention of Ld. Counsel for respondent was that the portion where the petitioner no. 4 stated to be residing usually remained locked. The respondent has also filed some photographs in this regard but this plea and the photographs are not sufficient to hold that it is a triable issue.
14. Further, it was submitted that there is no requirement for any further accommodation by the petitioners for accommodating their guests and separate room for puja. This fact was denied for want of knowledge that four brothers of petitioner no. 1 visit her residence. It was specifically denied that petitioner no. 1 is a religious lady and need any separate room for puja.
On the other hand it was submitted that the petitioner no. 1 is widow lady. She and her family member used to perform Puja in same room which is used for other purposes also. The mother-in-law of petitioner no. 2 reside as Moradabad and she is also on visiting terms to the residence of the petitioners. Regarding the requirement of separate puja room and guest room the settled law is as under : -
a) K.D.Nagrath, Vs. Mrs. Neena Sarna, 1999(2)RCR, 542, wherein, in a petition U/s 14(1)(e) of the DRC Act, the landlord required one room for guests and relative.
It was held that according to Indian way of life no evidence is required to prove this fact that friends and relatives do visits.
b) Rampratap Sharma Vs. Smt. Rukmani Devi, 2000(1) RCR,209, wherein, it was held that the landlord's requirement for separate pooja room is bonafide requirement. In present day society landlord cannot be compelled to have a pooja room in dining room or bed room.
c) Sh. Trilochan Singh Vs. Mrs. Usha Dhir,
1993(2) RCR 117, wherein the need of the
landlord for guest room was held to be bonafide .
It w as further held that word "himself"
includes the family of the landlord with whom he is
accustomed to live. Requirement of member of the
landlord would be requirement of the landlord
himself.
d) Chander Sain Jain Vs. Sumer Chand, 1999(51)
DRJ, wherein, it was held that requirement of the
landlord of a pooja room cannot be ignored.
In the light of above settled law it is found that the Puja room and guest room are the bonafide requirement of the petitioners.
15. Lastly, the respondent has taken plea that the tenanted premises is not bonafide requirement of the petitioners and the petitioners are accustomed of living together and all the petitioners are living jointly in flat no. 1248. On the basis of the pleading of the parties and above discussions and in view of the site plan filed by the petitioners, the total accommodation available to the petitioners in flat no. 1248 is two rooms, one store, two WC/Bathroom, one kitchen is available on ground floor and first floor in flat no. 1248 and one room kitchen and WC on the ground of flat no. 1243. Therefore, at present only three rooms are available with the petitioners. The total adult members of the petitioners are i) petitioner herself, 2) petitioner no. 2 and his wife, iii) petitioner no. 3 i.e. unmarried daughter, iv) petitioner no. 4 and her husband. Therefore, there are total six adjult members. Apart from these six adult member there are three minor children also i.e. one minor daughter of petitioner and two minor daughters of petitioner no. 4. As discussed above, one puja room and one guest is also the requirement of the petitioners. Therefore, at present the petitioners have bonafide requirement of six rooms i.e. one room for petitioner no. 1, one room for petitioner no. 2 and his wife, one room for petitioner no. 3, one room for petitioner no. 4 and her husband, one room for performing puja and one guest room. Rather one separate room is required for the growing up children.
16. In view of the aforesaid it is considered that the respondent has failed to disclose such facts, in his affidavit, as would disentitle the landlord/petitioner from obtaining an order for recovery of possession and has, thus, failed to raise any triable issue. Ergo, the application for leave to defend the present petition moved by the respondent is hereby dismissed. Consequently, eviction order is hereby passed in favour of the petitioners and against the respondent in respect of the suit premises consisting of two small rooms, kitchen, latrine, bathroom and open lobby on the first floor of suit premises no. 1243, FF, DDA Janta Flats, Nand Nagri, Delhi, as shown in red colour in the site plan which is now Ex. C-1. However, this order shall not be executed and the respondent shall not be evicted from the suit premises before expiry of a period of six months from today. The respondent is directed not to part with possession of the suit property in favour of any third party or cause any damage to the same and to continue to make regular payment of rent etc. to the petitioner. No order as to cost. File be consigned to the Record Room.
(Bhupesh Kumar)
Addl. Rent Controller,
Announced in the open Karkardooma Courts,
court today i.e. 20.10.07 Delhi.