H.T. Primlani vs Shanta Malhotra
1994 Latest Caselaw 541 Del

JUDGMENT

Sat Pal, J.

(1) This petition has been filed by Shri H.T. Primlani, (hereinafter referred to as the tenant) under Section 25-B(8) of the Delhi Rent Control Act, 1958 (in short the Act) against the order dated 23rd February, 1994 passed by Shri M.K. Gupta, Additional Rent Controller whereby the learned Additional Rent Controller accepted the eviction petition filed by Smt. Shanta Malhotra (hereinafter referred to as the landlady) under Section 14(1)(e) read with Section 25-B of the Act and passed the eviction order against the tenant.

(2) Briefly stated, the facts of the case are that the landlady filed the eviction petition under Section 14(l)(e) of the Act seeking eviction of the tenant from the tenanted premises comprising of two bed rooms with attached bath rooms one drawing-cum-dining room, one kitchen, open varandah, open terrace on the ground floor of the house bearing No.C-50, defense Colony, New Delhi which was let out to the tenant by the husband of the landlady on 1st March, 1978. The husband of the landlady died on 16th August, 1988 and as per averments made in the eviction petition, the landlady inherited the suit premises under the Will dated 8th February, 1988. It was further stated by the landlady that the ground floor had been let out to her elder son Pankaj Malhotra, who was working as an officer in Indian Oil Corporation and was living with her wife and two school going daughters on the ground floor of the suit premises.

(3) It is then stated in the eviction petition that the landlady with her younger son namely, Himanshu Malhotra, who is aged about 32 years and is unmarried, was living at Barsati Floor consisting of one room, one bath and a temporary shed and which had been declared dangerous by the Municipal Corporation of Delhi and had to be demolished and the said accommodation was not suitable for her residence. It was then stated that the first floor of the suit premises which was in occupation of the tenant was required by the landlady for her own residence and for residence of her younger son who is to be married. It was also stated that the landlady was a widow, an old lady and heart-patient and wanted accommodation for her nurse and servant also. It may be noted here that the landlady had earlier filed another eviction petition bearing No.E-508/91 under Section 14-D of the Act which was dismissed by the learned Additional Rent Controller on the ground that the petition under Section 14-D of the Act was not maintainable and the landlady ought to have filed a petition under Section 14(1)(e) of the Act. The landlady has, however, challenged the order dismissing her petition under Section 14-D of the Act and a civil revision against that order is pending in this Court.

(4) The tenant filed an application under Section 25B (4 and 5) of the Act for the grant of. permission to contest the eviction petition. In this application it was stated that the eviction petition filed by the landlady was malafide and had been filed to enhance the rent. It was further stated that the landlady had suppressed the accommodation in her occupation and in fact she was possessed of four rooms on the ground floor, a garage, which was used as a servant quarter/living room, apart from a store, kitchen and toilet and there was a room on the first floor with an attached toilet and terrace and three rooms, kitchen, toilets on the second floor and a room with toilet on the third floor of the garage and the said accommodation was more than sufficient for the landlady and her dependant family members. It was also alleged in this application that landlady had been letting out the room on the first floor and the second floor over the garage to Afghanis for a short duration and at present the said room over the garage was being used for manufacturing of candles and divas. It was also alleged in the application that the Will dated 1st February, 1991 was a forged document. It was further stated in this application that the eldest son of the landlady Pankaj Malhotra owned a flat in Mayur Vihar/Patparganj area and his wife had also inherited the property at Malvia Nagar, M- Block, New Delhi. It was further stated that the alleged plea for letting out of the ground floor in favor of Pankaj Malhotra was concocted and it was unimaginable that ground floor portion in defense Colony could have been let out to Pankaj Malhotra at a monthly rent of Rs.1500.00 in the year 1988. It was also stated that the landlady in fact was living on the ground floor of the property. It was also stated in this application that the relation between the landlady and her daughter-in-law were cordial.

(5) In reply to the affidavit filed on behalf of the tenant, the landlady has filed a rejoinder affidavit. In this rejoinder-affidavit, it was denied that the landlady had ever asked the tenant to increase the rent. It was further stated that the landlady was in possession of the Barsati Floor only which consisted of one room, a bath room and one unauthorised room which had a siltstone roof. It was further stated that as per sanctioned plan (copy of which was annexed) there were only two rooms on the ground floor and not four rooms as alleged. It was further stated that the tenant himself had in his possession two rooms, a drawing-cum-dining room, two bathrooms, a kitchen and varandah which was identical to the ground floor except for the passage converted into a store room. It was denied that the landlady had ever let out any portion of the house to Afghanis. It was then stated that in the year 1988, the family of the landlady was bifurcated and the elder son's kitchen was separated. It was further stated that the sons of the landlady did not own any residential property in Delhi and the wife of Shri Pankaj Malhotra also did not own any property nor she had inherited any property and both of her parents were alive.

(6) "THE learned Additional Rent Controller by his order dated 23rd February, 1994 dismissed the application for leave to defend filed by the tenant and passed the eviction order under Section 14(1)(e) read with Section 25B of the Act in favor of the landlady and against the tenant in respect of the suit premises as shown in Red Colour in the site plan Ex.C-1. In this order, learned Additional Rent Controller held that the tenant had not raised a single plea in his affidavit which if proved would disentitle the landlady from claiming the eviction order. "The aforesaid order dated 23rd February, 1994 passed by the learned Additional Rent Controller has been challenged in this petition.

(7) Mr. Lonial, learned counsel appearing on behalf of the tenant submitted that the tenant in the application for leave to defend had raised various pleas out of which certain friable issues emerged and these friable issues were sufficient to grant leave in favor of the tenant: "The order of the learned trial court in not granting leave to contest was illegal and contrary to the law laid down by the Supreme Court. He submitted that in the application for leave to contest, inter alia, it was stated that there was sufficient accommodation with the landlady, her son Pankaj Malhotra and his family was not entitled to any accommodation in the suit premises as his employer Indian Oil Corporation was making payment of rent to him and he could get accommodation on rent elsewhere. It was also seated that the daughters of Pankaj Malhotra who were of the age of 4 years and 7 years were not entitled to any bed room. It was also stated that the eviction petition had been filed by the attorney of the landlady and as such the same was not maintainable. It was then stated that the daughter-in-law of the landlady was manufacturing candles in the suit premises. He, therefore, contended that all these pleas raised friable issues. He further submitted that under Section 25B(5) of the Act the Controller must give leave to contest if the affidavit filed by the tenant disclosed such facts as would disentitle the landlady for an order for recovery of possession and he could not get into a sort of trial by affidavits preferring one set to the other and thus concluding the trial without holding the trial itself. He, therefore, contended that siped the feats stated in the application for leave to defend raised friable issues, the learned Additional Rent Controller ought to have granted leave to the tenant. In support of his submissions learned counsel placed reliance on two judgments of the Supreme Court reported in the cases of Precision Steel and Engineering Works & Anr. VS. Prem Deva Niranjan Deva Tayal and Charan Dass Vs. Brahma Nanda. 1982 Rajdhani Law Reporter Sc 243.

(8) Learned counsel further submitted that the landlady in fact was living at the ground floor and besides the barsati floor she was also in occupation of two rooms above the garage. He also submitted that there was no justification of separate bed rooms for the daughters of Pankaj Malhotra who were only of four years and 7 years age. He, therefore, contended that there was no bonafide requirement of the landlady with regard to the suit premises which were in occupation of the tenant.

(9) Lastly, learned counsel for the tenant submitted that the tenant was willing to surrender the first floor to the landlady in case she agreed to let out to him the barsati floor and in case this proposal was not acceptable to the landlady, the tenant should be granted three years time to vacate the premises.

(10) Mr. Vijay Kishan, learned counsel appearing on behalf of the landlady submitted that the landlady was a widow and was an old lady of 70 years age and was also a heart patient. She Along with her unmarried son was living on barsati floor which consisted of only one room and a temporary shed which had been declared dangerous. He further submitted that though the eviction petition filed by the landlady under Section 14D of the Act was dismissed on the ground that she was already in possession of some accommodation, but the fact that she was a widow and an old lady and a heart patient, could not be ignored in this petition. He further submitted that under Section 25B(5) of the Act, the leave to contest could be granted to the tenant only if the affidavit filed by the tenant disclosed such facts which would disentitle the landlady for an order for recovery of possession. He further submitted that under Section 25-B of the Act, learned Additional Rent Controller had to look into the affidavit filed by the tenant and the grounds on which he had sought the leave to contest and the counter-affidavit filed by the landlord/landlady. In this connection he drew my attention to the facts stated in the eviction petition, affidavit filed by the tenant and the counter affidavit filed by the landlady and submitted that from these documents it was evident that no fact had come on record which would disentitle the landlady for an order for recovery of possession. Learned counsel submitted that in the affidavit, the tenant had not denied the fact that the elder son of the landlady, namely, Pankaj Malhotra had been living Along with his wife and two daughters on the ground floor of the suit premises. He further submitted that though at one place in the affidavit, the tenant had stated that the ground floor consisted of four rooms but in his rejoinder affidavit (at page 135 of the paper book) he had admitted that the ground floor, first floor and second floor were having the similar accommodation except that the second floor did not have drawing-cum-dining room. He further submitted that admittedly the first floor which was in occupation of the tenant, consisted of two bed rooms and drawing-cum-dining room and as such the ground floor also consisted of two bed rooms, drawing cum dining room. He also submitted that the landlady in her counter- affidavit had clearly stated that the accommodation on the ground floor and the first floor was identical except that the passage at the ground floor which was converted into a store room and she had also annexed the site plan of the premises in question and as per that site plan, the ground floor consisted of two bed rooms and drawing cum dining rooms. He submitted that the site plan placed on record had to be relied upon by the trial court. In support of this submission, he placed reliance on a judgment of this court reported in the case of Bachan Singh Vs. Rajinder Prashad & Anr. . He, therefore, contended that from this it was clear that the ground floor consisted of two bed rooms, drawing- cum-dining room and not four rooms as alleged by the tenant.

(11) Learned counsel for the landlady further submitted that the tenant in his affidavit had alleged 'that Will under which the landlady had become owner of the house was a forged document. He submitted that though the Will had been duly proved by the landlady by her counter-affidavit but even assuming the Will was not a valid document, even then the landlady was one of the co- owners and as such no friable issues emerged out of this plea also.

(12) Dealing with the allegation made by the tenant that the eviction petition was filed by the attorney of the landlady, learned counsel submitted that from the counter-affidavit filed by the landlady it was clear that the landlady was seriously ill when the eviction petition was filed. He, however, submitted that Along with petition, the general power of attorney duly executed by the landlady in favor of the attorney was filed and in such a case the petition filed by the attorney was valid. In support of this submission he placed reliance on a judgment of this Court in the case of Yogesh Singh Sahota VS. Shri Niranjan Lal Gupta, 1981(2) RCj 243.

(13) As regards the accommodation available above the garage, the learned counsel submitted that admittedly the garage portion of the house was not attached with the main building. He further submitted that the garage and rooms above the garage could not be treated as living rooms. In this connection, he placed reliance on three judgments of this Court in the cases of Sarla Mittal VS. K.C. Jam, , K.B. Mathur & Anr. VS. Sardar Bhagwant Singh (deceased) through LRs, 1988(2) Rent Law Reporter 316 and Laxmi Iron & Steel Manufacturing Co. (P) Ltd. VS. Prem Chona, .

(14) Learned counsel for the landlady further submitted that the landlady Along with her younger son was living at the barsati floor and the barsati and this floor consisted of one puce room and one unauthorised room had a sil stone roof and cannot be treated as a living room. In support of this submission he placed reliance two judgments of this Court reported in the cases of R.K. Bhatnagar VS. Smt. Sushila Bhargava and Am., and Smt. Waryam Kaur VS. K.K. Gandhi (since deceased) through his LRs.', .

(15) Learned counsel further submitted that the landlady was entitled to live comfortably in her house. He further submitted that the ground floor had been let out by the landlady to her own elder son Pankaj Malhotra and it had hot been disputed by the tenant in his affidavit that this son Along with his wife and two daughters was living on the ground floor. He submitted that the landlady could not be directed to tell her own son and members of his family to shift to another rented accommodation so that the tenant might continue living in the suit premises. He also submitted that even assuming the Will was not valid, even then Pankaj Malhotra was the co-owner of the house and was entitled to live in the suit premises and the requirement of one bed room for each of the children was also justified. In support of this contention, he placed reliance on two judgments of this court in the cases of Sarla Mittal (supra) and Sheela Sapra & Anr. Vs. M/s.New India Electrical Industrial Co. Pvt. Ltd., .

(16) Lastly, learned counsel for the landlady submitted that the requirement of the suit premises by the landlady "as bonafide. He further submitted that the offer of the tenant that he was willing to shift to barsati floor was not acceptable to the landlady as the landlady legally could not be asked to accept this offer. He, however, submitted that the landlady was willing to offer rooms which were above the garage. As regards time asked by the tenant the learned counsel submitted that the court in its discretion might grant reasonable time but not such a long period as has been asked for by the learned counsel for the tenant.

(17) I have given my thoughtful consideration to the submissions made the learned counsel for the petites and have perused the records. In view of the law laid down by the Supreme Court in the case of Precision Steel Engineering (supra) while considering the application of the tenant for leave to contest, only affidavits of the parties have to be taken into consideration and in case the affidavit of the tenant discloses such facts as would disentitle the landlady for an order for recovery of possession, leave should ordinarily be granted. It may, however, be noted here that the defense of the tenant must be specific, positive, clear and bonafide.

(18) In the present case, the tenant himself has stated in his rejoinder affidavit that the accommodation on the first floor and ground floor is identical. The landlady has also stated the same in her counter-affidavit and has also annexed the site plan. Admittedly, the first floor which is in occupation of the tenant, consists of two bed rooms, drawing-cum-dining room, two bath rooms, kitchen and varandah. From this it is evident that the ground floor also consists of two bed rooms, drawing-cum-dining room, two bath rooms, a kitchen and varandah. The landlady has also admitted that in addition, there is a store room also on the ground floor. The tenant has not denied the fact that the elder son of the landlady namely Pankaj Malhotra Along with his wife and two daughters has been residing on the ground floor, though he has alleged that the landlady is also residing at the ground floor. In view of these facts, the landlady is entitled to one bed room for herself, one bed room for her unmarried son, one bed room for her elder son and his wife and one bed room for the daughters of the elder son who are at present 11 years and 6 years old. These children are growing and they may need even one room for their study in the near future. As held by this Court in the cases of R.K. Bhatnagar (supra) and Smt.Waryam Kaur (supra) barsati on the second floor cannot be taken into consideration as a living room. In view of this, no friable issue emerges on the allegation of the tenant that the requirement of the landlady is not bonafide.

(19) As regards the contention raised by the learned counsel for the tenant that the eviction petition has been filed by the attorney and not by the landlady herself, I do not find any merit in this contention. Admittedly the attorney was holding special Power of attorney duly executed by the landlady and as such petition filed by him is valid. The view taken by me finds support from the judgment of this court in the case of Yogesh Singh Sahota (supra). It may also be pointed out here that the counter-affidavit has been filed by the landlady herself.

(20) I also do not find any merit in the contention urged by learned counsel for the tenant that the elder son of 'the landlady, namely, Pankaj Malhotra and members of his family are not entitled to stay in the present house as the said son is entitled to house rent from his employer. Admittedly, Pankaj Malhotra with the members of his family has been living on the ground floor of the house even prior to the death of his father.

(21) No friable issue emerges regarding accommodation available with the landlady above the garage. It is well settled that the garages and the servant quarters are not meant to be used for living purpose. In this connection a reference may be made to two judgments of this court in the cases of Saria Mittal (supra), K.B. Mathur (supra) and Laxmi Iron and Steel Manufacturing Co. (P) Ltd.(supra).

(22) Similarly no friable issue emerges on the allegation made by the tenant that the Will relied upon by the landlady is a forged document. Even if the Will is not a valid document, the landlady being a co-owner is entitled to file the eviction petition against the tenant and her two sons being the co-owners would also be entitled to claim the suit premises for their requirement.

(23) In view of the above discussion, I do not find any merit in this petition and the same is dismissed. However, keeping in view the facts and circumstances of the case, I am of the view that the tenant should be granted a period of one year to vacate the suit permits subject to the condition that he furnishes an undertaking to the effect that he shall hand-over the vacant possession to the landlady within one year from the date of this judgment. Accordingly, I direct the petitioner/tenant to furnish an undertaking in the shape of affidavit within one week, to the effect that he would hand-over the vacant and peaceful possession of the suit premises to the landlady within one year from today. Parties are left to bear their own costs. The lower court records be sent back forthwith. List the case for direction on 24th August, 1994.