Delhi District Court
(1) Sh. Ram Pratap vs Smt. Chanderwati on 3 November, 2015
IN THE COURT OF SH. TARUN YOGESH,
SCJCumRC (Central Distt.), DELHI.
E. No. 29/14
Unique ID No. of the case : 02401C0176202014
(1) Sh. Ram Pratap
(2) Sh. Ram Avtar
Both sons of late Sh. Niader Mal,
Both residents of House No. 10489,
First & Second Floor, Bagichi Peerji
Subji Mandi, Delhi 7 .......... Petitioners
VERSUS
Smt. Chanderwati
W/o late Sh. Tika Ram
R/o House No.10489, First Floor, Bagichi Peerji
Subji Mandi, Delhi - 7 ........... Respondent
Date of Institution of case : 17.04.2014
Date on which judgment was reserved : 03.11.2015
Date on which judgment was pronounced : 03.11.2015
JUDGMENT
1. Petitioners Sh. Ram Pratap and Sh. Ram Avtar, both sons of late Sh. Niader Mal have filed eviction petition U/s 14 (1) (e) r/w sec 25B of Delhi Rent Control Act, 1958 (hereinafter referred as DRC Act) against respondent Smt. Chanderwati for her eviction from tenanted premises consisting one room with common varandah, kitchen and latrine on the first floor and one katcha room on the roof of the first floor situated in property bearing no. 10489, Bagichi Peerji Subji Mandi, Delhi 110 007 more specifically shown in red colour in the site plan (hereinafter referred as tenanted premises) upon the ground of bonafide requirement of premises for use as residence for themselves and their family members.
Ram Pratap & Anr. vs. Chanderwati Page 1 of 161.1 Tenanted premises is averred to have been let out to respondent Smt. Chanderwati W/o late Sh. Tika Ram by previous owner/landlord late Sh. Jagan Nath for residential purpose upon monthly rent of Rs. 10.62p excluding other charges and respondent is stated to be residing in the tenanted premises alongwith her family members.
1.2 Petitioners claim themselves as owners / landlords of entire premises bearing no. 10489, Bagichi Peerji Subji Mandi, Delhi 110 007 and respondent as their tenant in one room with common varandah, kitchen and latrine on the first floor and one katcha room on the roof of the first floor of premises shown in red colour in the site plan. Their ancestor / grandfather late Sh. Jagan Nath is stated to have inducted respondent as tenant in the demised premises and to have executed a Will in favour of Sh. Kishan and Sh. Chotey Lal (cousin brothers of petitioners) which was duly registered with Sub Registrar, Delhi vide document no. 73, Book No. 3, Vol. 66 on pages 143144 dated 28.10.1944. Their cousins namely Sh. Kishan and Sh. Chotey Lal are stated to have further executed a registered General Power of Attorney, agreement to sell and Will dated 27.03.2000 at serial no. 269, 270 and 271 in favour of petitioners for selling the whole property and accordingly petioners became absolute owners / landlords of entire premises no. 10489, Bagichi Peerji Subji Mandi, Delhi 110 007 and respondent became their lawful tenant under operation of law.
1.3 Asseverating that tenanted premises are required bonafide for use and occupation as residence for themselves and their family members who are dependent upon them for residential accommodation, petitioners aver of having no other reasonable, suitable residential accommodation or house in Delhi or anywhere else. Petitioners have mentioned about other tenants Ram Pratap & Anr. vs. Chanderwati Page 2 of 16 namely Smt. Premwati, Sh. Kishan, Sh. Gir Raj and Sh. Sushil who are residing with their family members on the ground floor of premises. Premises under use and occupation of petitioners are shown in green colour in the site plan whereas portions under tenancy of other tenants have been shown in yellow colour in the site plan attached with the petition.
1.4 Petitioners have also mentioned about their family members including their children, daughterinlaws and grand children in para no.18 sub paras (5) and (6) of the petition besides mentioning their bonafide requirement for more space by stating that petioner no. 2 and his wife are aged and suffering from various kinds of physical ailments like blood pressure, arthritis, joint pain, etc. and have been advised to avoid climbing stairs. Petitioner no. 2 and his wife are averred to be residing in a small room on the second floor of the house due to paucity of residential accommodation on the ground floor and petitioner's wife has to be moved up and down the stairs with the help of their sons in case of emergency and medical checkup despite doctor's advise to strictly avoid moving up and down the stairs.
1.5 Petitioners have mentioned their requirement for more living rooms for themselves and their family members by claiming to be occupying total nine rooms (one room on the ground floor, four rooms on the first floor and four rooms on the second floor) and one tin shed in the house with one kitchen, latrine and bathroom shown in green colour in the site plan whereas more space (22 more living rooms) is required for proper residence of 14 members of their family who are well educated and well cultured. Petitioner no. 2 has also stated that marriage of his younger son namely Sh. Dhanraj Kumar Sharma could not be solemnized due to paucity of accommodation and both petioners have mentioned their requirement of rooms in detail as their family Ram Pratap & Anr. vs. Chanderwati Page 3 of 16 members are forced to sleep in kitchen and in open space as and when their married daughters or other guests come to stay with them at their house.
2. Notice of eviction petition filed U/s 14 (1) (e) of DRC Act was issued to respondent in prescribed form as per 'Third Schedule' and she has filed her leave to defend application U/s 25B (4) & (5) of DRC Act alongwith her affidavit on 27.05.2014.
3. Respondent Smt. Chanderwawti has also filed documents viz. photocopy of perpetual lease deed dated 03.03.1943 (in Urdu) and its English translation, photocopy of suit no. 379/1990 filed before Hon'ble High Court of Calcutta and photocopies of sale deeds executed by Sh. Shahid Ahmed Ferozie in favour of Smt. Anita Sharma, Smt. Shashi Gupta and Smt. Suraj Devi alongwith leave to defend application for seeking unconditional leave to contest the eviction petition filed by petitioners inter alia upon following grounds.
3.1 That there is no landlordtenant relationship between the parties as petitioners are not the owners of the property rather one Mr. Shahid Ahmed Firozie is the owner and landlord of premises in question.
3.2 That eviction petition filed U/s 14(1)(e) of DRC Act is misconceived and has been mischieviously filed by petitoners with oblique motives and contents thereof are frivolous, whimsical, baseless, apparently false and concocted.
3.3 That Mr. Shahid Ahmed Ferozie is the sole landlord of tenanted premises and respondent had no dealings with petioners whose forefathers used to collect rent from tenants (including respondent) on behalf of Mr. Shahid Ahmed Ferozie and his predecessors in interest.
Ram Pratap & Anr. vs. Chanderwati Page 4 of 163.4 That Mr. Shahid Ahmed Ferozie being the owner and landlord of property and having no use of demised premises for his own need or his family had offered to execute sale deed in respondent's favour upon prevailing market rate but due to her financial incapabilities she could not purchase the property and in the meantime summons / notice of eviction were received.
3.5 That through their eviction petition petitioners are indeed trying to grab the property of original owner for which they and their forefathers used to collect rent for last many decades as agent / clerk of the original owner.
3.6 That the alleged bonafide requirement propounded by petitioners is sham, bogus and falsely created for evicting her from the suit premises which is the only space available for her residence and petitioners have deliberately withheld information about original owner / landlord with malafide intention for misleading the court.
3.7 That petitioners have filed their petition for causing undue hardship and harassment to respondent and are creating encumbrances to free ingress and egress (of customers) in the portion under her tenancy besides causing damage to areas under common use by piling up waste materials in front of her portion for causing harassment, nuisance and obstruction to respondent and her family members.
3.8 That presuming that petitioners are true owners / landlord of property, tenanted premises are not bonafide required for their residence as they have filed a number of similar eviction petitions against all tenants in the entire property in question on same ground showing similar bonafide requirement.
Ram Pratap & Anr. vs. Chanderwati Page 5 of 163.9 That respondent has learnt from one Mr. Amit engaged in the business of property dealing that petitioners are trying to dispose of the entire suit premises after getting rid of respondent as they are in dire need of money for settling outstanding dues payable on account of other properties purchased by them and are trying to grab the property through this eviction petition.
3.10 That petitioners have not placed on record true and correct information about their ownership and respondent is in the process of obtaining certified copies of documents to prove that petitioners are not the actual owners / landlord of property in question. Nonetheless, true copies of documents are annexed to show that petitioners are not the actual owners of property.
3.11 That properties bearing no. 10335 to 10555 Bagichi Peerji, Ram Bagh Road, Subzi Mandi, Delhi (including tenanted premises) are owned by Sh. Shahid Ahmed Ferozie who is selling / executing sale deeds qua the properties to various purchasers and is executing around 10 such sale deeds every month after due verification of his ownership documents by Sub Registrar concerned.
3.12 That as per Revenue Records of Municipal Committee Mr. Ferozie is the registered owner of property including tenanted premises and petitioners have chosen to file certain documents executed amongst their family members for claiming that their grandfather late Sh. Jagan Nath was owner of the property but no title document in favour of Sh. Jagan Nath has been filed on record.
3.13 That Sh. Jagan Nath was working as clerk / agent / caretaker of property appointed by actual owner viz. Mr. Shahid Ahmed Ferozie and/or his Ram Pratap & Anr. vs. Chanderwati Page 6 of 16 predecessors in interest for collecting rent from tenants and was given a space in the premises to live with his family so that the property could be managed and taken care of in the absence of original owner.
3.14 That petitioners have maliciously instituted the eviction petition for evicting her from tenanted premises as they have entered into some 'agreement to sell' or 'rent agrement' with some proposed purchaser.
3.15 That petitioners have not approached the court with clean hands and have spared no attempt to over reach / perpetuate fraud upon the court and hence she is entitled to unconditional leave to contest the eviction petition on the basis of documents filed alongwith the application.
4. Petitioners have filed their reply alongwith 'counter affidavit' on 04.08.2014 for reiterating their ownership, landlordtenant relationship between the parties and for disputing respondent's averments in her affidavit as bundle of lies, false and concocted facts.
4.1 Petitioners have also disputed respondent's contention of Mr. Shahid Ahmed Ferozie being the owner (landlord) of premises by claiming that Mr. Shahid Ahmed Ferozie is a stranger and has nothing to do with the premises in question and they being the owners / landlords respondent is their tenant.
4.2 Petitioners have also filed certified copies of application filed u/O 23 Rule 3 r/w 151 CPC for recording compromise between Sh. Ram Pratap and another tenant namely Smt. Premwati, their joint statements recorded in eviction petition no. 84/14 and order passed by Ld. Commericial Civil Judge cumARC on 05.06.2014.
Ram Pratap & Anr. vs. Chanderwati Page 7 of 165. Thereafter respondent has filed filed a copy of jamabandi bearing khewat jamabandi no. 198, khatauni no. 242/243 in the name of Mohd. Kazim S/o Mohd. Hasan, Sadar Bazar, Delhi but despite several adjournments and imposition of cost Rs. 500/ on 05.01.2015 & 23.02.2015 did not file any rejoinder to petitioners reply to leave to defend application.
6. Advocate Sh. S. K. Bhardwaj, ld. counsel for petitioner and Advocate Sh. Lokesh Kumar Aggarwal, ld. counsel for respondent have addressed their submissions upon leave to defend application and matter is listed for clarification, if any / order.
7. Having heard their rival submissions and perused respondent's application U/s 25B (4) & (5) DRC Act filed alongwith her affidavit, it is evident that denial of petitioner's ownership and landlordtenant relationship are the chief planks for seeking leave to contest her eviction from tenanted premsies upon the ground of bonafide requirement.
8. To substantiate her contention, respondent Smt. Chanderwati has relied upon photocopies of documents viz. photocopy of perpetual lease deed dated 03.03.1943 (in Urdu) and its English translation, photocopy of suit no. 379/1990 filed before Hon'ble High Court of Calcutta and photocopies of sale deeds executed by Sh. Shahid Ahmed Ferozie in favour of Smt. Anita Sharma, Smt. Shashi Gupta and Smt. Suraj Devi.
9. Further, during course of arguments, ld. cousnel for respondent has also adverted to order dated 02.07.2015 of Ld. CCJ cum ARC, Tis Hazari Courts, Delhi passed in eviction case no. E 67/14 filed against another tenant namey Sh. Gir Raj wherein Ld. ARC has observed that since landlordtenant relationship remained unproved and open for respondent to challegne Ram Pratap & Anr. vs. Chanderwati Page 8 of 16 petitioners' ownership, so triable issue with respect to ownership of petitioner and existence of landlordtenant relationship had been raised.
10. Petitioners, per contra, have denied respondent's contentions for claiming themselves as owners / landlords of tenanted premises and have relied upon documents viz. certified copies of application filed u/O 23 Rule 3 r/w sec 151 CPC by Sh. Ram Pratap and another tenant namely Smt. Premwati, their joint statements recorded in eviction petition no. 84/14 and order passed by Ld. Commericial Civil JudgecumARC on 05.06.2014 for reaffirming their ownership and reiterating landlordtenant relationship between the parties.
11. It is well settled legal principle that leave to defend is granted to tenant only in case of triable issue being raised by respondent which can be adjudicated through additional evidence (other than affidavits) or else the whole purpose and import of summary procedure under section 25B of DRC Act would be defeated.
12. Hon'ble Supreme Court of India in case titled "Precision Steel & Engineering Works & Anr. Vs. Prem Devi Niranjan Deva Tayal (1982) 3 SCC 2870" has held that prayer for leave to contest should be granted to tenant only where a prima facie case has been disclosed by him and court should not mechanically and in routine manner grant leave to defend even in the absence of tenant having disclosed any prima facie case which would disentitle the landlord from obtaining an order of eviction.
13. Hon'ble High Court of Delhi in case titled "Nem Chand Daga Vs. Inder Mohan Singh Rana 94 (2001) DLT 683" has held : Ram Pratap & Anr. vs. Chanderwati Page 9 of 16 "That before leave to defend is granted, the respondent must show that some triable issues which disentitle the applicant from getting the order of eviction against the respondent and at the same time entitle the respondent to leave to defend existed. The onus is prima facie on the respondent and if he fails, the eviction follows."
14. Though respondent Smt. Chanderwati has relied upon photocopies of perpetual lease deed purportedly dt. 03.03.1943 and some petition (suit) filed by Sh. Shahib Ahmed Ferozie including terms of settlement and sketch/site plan of property bearing Municipal NO. 10335 to 10555 for disputing petitioners ownership, but these documents are not relevant as the issue of title/ownership is not to be adjudicated during eviction proceedings. Similarly, copies of sale deeds in favour of Smt. Anita Sharma, Mrs. Shashi Gupta and Smt. Suraj Devi in respect of different properties bearing no. 10408, 10427B and 10532 are not relevant to this case. As regards copy of jamabandi, ld. counsel for respondent could not explain any connection between the document which is a part of revenue record in respect of agricultural land different from suit property having a distinct municipal number.
15. Per contra, petitioners have relied upon documents viz. certified copy of application u/O 23 Rule 3 CPC of petitioner and Smt. Premwati (another tenant in the premises), their statements recorded before Ld. ARC and order dt. 05.06.2014 passed by Ld. ARC, Central District for verifying their ownership and landlordtenant relationship between the parties.
Ram Pratap & Anr. vs. Chanderwati Page 10 of 1616. It would be apt to refer to sec. 2(e) of DRC Act wherein the word "landlord" has been defined for putting an end to the controversy qua landlordtenant relationship raised by respondent Smt. Chanderwati.
"Sec. 2(e) "landlord" means a person who, for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant."
17. Therefore, notwithstanding respondent's contention of Sh. Shahid Ahmed Ferozie being the owner/landlord of premises, it is pertinent to record that in paras no. 4.1, 5 and 13 of her affidavit filed alongwith application u/s. 25B (4) & (5) respondent has averred that petitioners and their forefathers were collecting rent from tenants including her as clerk / agent / caretaker of property on behalf of the original owners. Therefore, as per the definition of landlord u/s. 2(e) of DRC Act and respondent's averment in the aforesaid paras of affidavit filed on judicial record, landlordtenant relationship between the parties stands established and does not require any adjudication by leading any further evidence.
18. Honble High Court of Delhi in para no. 7 of case titled "Mrs. Meenakshi Vs. Ramesh Khanna etc." 1995 Rajdhani Law Reporter 322 has held :
" Mere denial of ownership of the landlord does not mean that every case must be sent for trial involving years...... Controller should rather have a positive approach in such Ram Pratap & Anr. vs. Chanderwati Page 11 of 16 matters so as to discourage such vague and frivolous pleas which are most of the time false to the knowledge of persons raising them."
19. Similarly, in case titled "Rajender Kumar Sharma & Ors Vs. Smt. Leelawati & Ors." 155 (2008) DLT 383, Hon'ble High Court of Delhi has held :
"it is settled law that for the purpose of section 14 (1) (e) of Delhi Rent Control Act, a landlord is not supposed to prove absolute ownership as required under Transfer of Property Act. He is required to show only that he is more than a tenant."
20. In a later case titled "Tahira Begum Vs. Sumitar Kaur & Anr." 166 (2010) DLT 443 Hon'ble Delhi High Court has referred to decision of Hon'ble Supreme Court of India in "Shanti Sharma Vs. Ved Prabha" 33 (1987) DLT 80 (SC) = AIR 1987 SC 2028 for observing :
"For the purpose of section 14 (1) (e) of the Act, ownership is not to be understood as absolute ownership, but only as a tilte better than the tenant. So what has to be seen is whether on the basis of aforesaid facts it can be said that the petitioner has any title to the property, a title better than the respondents."
21. It is, therefore, settled principle of law that mere denial of ownership of landlord does not mean that every case must be sent for trial involving years and Rent Controller is required to assess the strength of tenant's case regarding denial of ownership of petitioner. Similarly, it is also Ram Pratap & Anr. vs. Chanderwati Page 12 of 16 well settled that mere denial of ownership of petitioner is no denial and Rent Controller should rather have positive approach in such matters so as to discourage vague and frivolous pleas which are most of the time false to the knowledge of persons raising them.
22. The object of requirement contained in section 14 (1) (e) of DRC Act that the petitioner should be the owner of premises is not to provide an additional ground to the tenant to delay the proceedings by simply denying ownership of the landlord and thereby puting him to proof by way of full fledged trial. In case titled "Rajender Kumar Sharma and Ors. v. Smt. Leela Wati and Ors. 155 (2008) DLT 383" Hon'ble High Court of Delhi has observed as under : "10. Section 25B was inserted by the legislature in Delhi Rent Control Act as a special provision for eviction of the tenants in respect of specified category of cases as provided therein. Where a landlord seeks eviction on the basis of bonafide necessity, a summary procedure is provided and tenant has to seek leave to defend disclosing such facts which disentitled the landlord from seeking eviction. Where a tenant pleads, in leave to defend preposterous prepositions and makes such averments which are palpably false and the landlord in his reply affidavit to leave to defend is able to show to the ARC that all facts stated in leave to defend were palpably false, ARC is not precluded from considering the falsity of such facts on the basis of material placed by the landlord before it."
Ram Pratap & Anr. vs. Chanderwati Page 13 of 1623. As regards bonafide requirement of premises viz one room with common varandah, kitchen and latrine on the first floor and one katcha room on the roof of the first floor, petitioners have stated their requirement for more living rooms for themselves and their family members as tenanted premises under occupation of respondent (tenant) is sought to be used for proper residence of their family comprising their sons, daughterinlaws and grandchildren. Petitioners have also mentioned about total nine rooms (one room on the ground floor, four rooms on the first floor and four rooms on the second floor) and one tin shed in the house with one kitchen, latrine and bathroom under their occupation, but more space is required for proper residence of 14 members of their family who are well educated and well cultured.
24. Petitioners have also mentioned about eviction of one tenant namely Smt. Om Parkashi vide order dated 06.03.2013 passed by Ld. ARC, Central Distt. Tis Hazari in eviction petition no.E186/12 in para no. 19 of their petition and have filed certified copy of order dated 05.06.2014 of Ld. Commercial Civil JudgecumARC passed in eviction petition no. 84/14 along with their reply to leave to defend application for mentioning about eviction of another tenant namely Smt. Premwati. Nonetheless, considering the limited space available with petitioners against the number of adult members of family, married daughters with their families and guests visiting them including requirement for more rooms for their grandchildren for proper living, studies and general well being, requirement for more space for their family members is utmost genuine and mere denial of their bonafide requirement by respondent is not sufficient in the absence of averment of any alternative accommodation being available with petitioners.
Ram Pratap & Anr. vs. Chanderwati Page 14 of 1625. Hon'ble High Court of Delhi in case title "Sudesh Kumari Soni & Anr. Vs. Prabha Khanna & Anr" 153 (2008) DLT 652 has observed :
If landlord wishes to live with comfort in a house of his own, law does not command or compell him to squeeze himself lightly into lesser premises protecting tenant's occupancy - Petitioner is in possession of six rooms and there are twelve family members in disputed property living - Each member of family of petitioner requires one room - Such a large family cannot be accommodated in six rooms - It is not for tenant to dictate terms to landlord as to how else he can adjust himself without getting possession of tenanted premises - Suitability has to be seen from convenience of landlord and his family members and on the basis of circumstances including profession, vocation, style of living, habit and background.
26. Similar observations have been consistently held by Hon'ble Supreme Court of India in case titled "Yadvendra Arya & Anr. vs. Mukesh Kumar Gupta" AIR 2008 Supreme Court 773 and Hon'ble Delhi High Court in "Smt. Saleem Bano & Anr. vs. Mohd. Rafi" 2009 (3) RCR 94 and "Daya Ram Prajapati vs. Smt. Vidya Devi" 2012 (2) RCR 269 to the effect :
"It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter."
27. Since bonafide requirement of tenanted premises for residence by petitioners and their family members stands established, so, respondent Smt. Chanderwari having failed to raise any other triable issue for seeking Ram Pratap & Anr. vs. Chanderwati Page 15 of 16 leave to contest the eviction petition is liable to be evicted from the tenanted premises.
28. Present eviction petition filed U/s 14 (1) (e) r/w 25B of DRC Act is therefore allowed and consequently eviction order is passed against respondent Smt. Chanderwati in respect of tenanted premises consisting one room with common varandah, kitchen and latrine on the first floor and one katcha room on the roof of the first floor situated in property bearing no. 10489, Bagichi Peerji Subji Mandi, Delhi 110 007 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 03rd November, 2015 SCJCumRC (Central)
Tis Hazari Courts Delhi
Ram Pratap & Anr. vs. Chanderwati Page 16 of 16