Gurdeep Kaur vs Kartar Singh Khurana And Anr.
1995 Latest Caselaw 683 Del

JUDGMENT

Arun Kumar, J.

(1) This petition is directed against an order dated 28th March, 1995 whereby the Additional Rent Controller granted leave to contest the eviction petition filed under Section 14D of the Delhi Rent Control Act (hereinafter referred to as the Act) for eviction of the respondent from the ground floor of property No. 23 / 16, East Patel Nagar, New Delhi. The premises was let out to the respondent in the year 1958 by the erstwhile owner. The property was purchased by Smt. Sukhwant Kaur, mother of the petitioner along with her husband, i.e the father of the petitioner on 26th June, 1962. According to the petitioner, she Along with her daughter respondent No. 2 inherited the property from Smt. Sukhwant Kaur by virtue of a registered will dated 16th April, 1982. The property already stands mutated in the name of the petitioner and her daughter, respondent No. 2 herein. The petitioner is a widow. She is a handicapped person. Both her legs have been amputated above the knees. The petitioner along with her unmarried daughter, respondent No. 2 is residing on the first floor of the property in suit. With the, advancing age 'of the petitioner coupled with her handicap, it has become all the more difficult for the petitioners to climb the state to reach the first floor and , the petitioner requires the ground floor premises which is in the tenancy. the respondent No. 1 for her own residence. ?

(2) In his application for leave to contest, the respondent No. 1 did not dispute the tact that the petitioner is a widow, the relationship or landlord and tenant was denied. It was pleaded that Surinder pal singh , son of the, respondent was accepted as a joint tenant along with respondent No.1 by the mother of the petitioner, i.e., Smt. Sukhwant kaur by way of oral agreement, it was further pleaded that in April 1989 on the asking or Smt. Sukwant Kaur, rent of the suit premises was enhanced from Rs. 82.50 to Rs. 125 per month, for this, a wanting agreement was executed between Smt. Sukhwant Kaur and respondent No. 1. The daughter of respondent No. 1, Smt. Sunita Manajan was admitted as a joint tenant m the, suit premises with right to reside in a portion thereof. The son of respondent No. 1 Surrendered his joint tenancy. A copy of the alleged agreement dated 22nd May, 1989 purportedly bearing the; signatures of its executants, has been placed on record. It was further pleaded that the tenancy premises is totally commercial and was being used as such.

(3) In reply, the petitioner denied the alleged agreement dated 22nd May, 1989. She denied that Sunita Mahajan daughter of respondent No. I Was ever taken as a joint tenant in the tenancy premises or that the rent was enhanced from Rs. 82.50 to Rs. 125 per month. According to the petitioner, the. alleged agreement is a forged document. It was denied that the premises to suit is commercial and was let out for commercial purposes. It was also denied that the son of respondent No. 1 was ever a joint tenant in the premises. The petitioner reiterated the fact that she along with respondent No. 2 are the owners of the property in suit and the premises is required by the petitioner in view of her handicap and old age because of which the effect of the handicap has become more unbearable.

 (4) The Additional Rent Controller granted leave to contest on the following grounds:    (A)The petitioner had not stated as to when she became a widow; (b) The date on which the petitioner became a handicap person has not been disclosed; (c) The rent agreement dated, 22nd May, 1989 set up by the respondent' No. 1 and denied by petitioner requires evidence.  

 (5) THE.FOLLOWING observations of the Additional .Rent Controller in the impugned order are .worth nothing    "PARTICULARLY.as -observed above .when. petitioner is silent as about her state of widowhood .as .to -when iit occured to her..and particularly silent about her state of handicapped as .to .when she suffered amputation of both legs,, I find it will be..a .triable., .issue when the respondent admittedly .was .inducted-tenant.-not by the. petitioner or by her. husband but by owner of the .property in 1958 and from that owner petitioner's mother-purchased 'the property in .1962.".  

(6) The above, observations of the-Additional Rent- Controller have been quoted because I find? them totally uncalled for and rather amusing. The record shows that it is not disputed that the petitioner-is a widow. As-to-when-she. became widow is .irrelevant. 'Similarly, it is not disputed that the. petitioner is a handicapped person, both her 'legs -having been amputated above the knees. 'The date of amputation of legs again is wholly irrelevant. The petitioner has come under Section 14D on the basis of the fact that She is a widow and requires the premises in suit for her own residence.It is not necessary for a petition under Section 14 of the Act that premise .oust have been let out by the widow herself. As, the law as it now stands the predeces so in such a case could be one let out by her husband or even by her predecess or in interest. The date when the petitioner became a widow iss immaterial Similarly the record 'shows that 'the petitioner suffered her. handicap long time back. The exact date when she suffered It is irrelevant particularly view of the' tact' that It is not disputed that the petitioner is a handicapped person. For irrelevant .facts, I fail to understand where is the need for evidence? .'Thus, on points (a) and (b) referred to above, no evidence is-.called for and the Additional Rent Controller was clearly in en-or in granting leave to contest the eviction petition on these grounds. These points do not give rise to any friable issues.

(7) Regarding ground (c) referred to above, i.e., the alleged agreement dated 22nd May, 1989, the. agreement on the face of it appears to be a forged, document. By virtue of the said agreement, the rent was allegedly impressed from Rs. 82.50 to Rs. 125 per month. There is nothing to support the in cerase of rent in pursuance of the alleged agreement, rather the grievance of the petitioner is that the respondent No. 1 has not been paying the rent since long in act, it Has been urged on behalf or respondent No. 1 .that there is no relationship of landlord and tenant between the parties and the respondent No. 1 never attorney to the petitioner as a tenant. In view of this contention to respondent. No. 1 it stands admitted 'that rent was never paid by the respondent No. 1 in pursuance to the said, agreement, there is nothing to snow that the alleged agreement was acted upon. The agreement contains a clause that two months rent @ Rs. 125 per month has been paid in cash. 'there is nothing to support this alleged payment in "Cash". .The respondent No. 1 appears to have allowed his daughter Sunita Mahajan to stay in the tenancy premises and the alleged agreement appears to have been setup to Justify and regularise her presence in the premises. Merely because a tenant sets up a. false or forged document it does not.follow.that leave to contest, must be. granted to the tenant in relation to such a document. Setting, up oi adocument, therefore, by itself cannot be taken up as a ground for grant of leave to contest when the, document Js disputed by the other side. If such a principle was to be adopted or accepted, it will. encourage false and forged .documents being setup by tenants in order to ensure that leave to contest is granted to them. In the. present state in which the eviction petitions are being proceeded with by the'Rent Controller, it is a known fact that once leave to contest is granted, the trial drags on for years and years. There are instances when cases have taken five years and above to come to a head conclusion. before the Controllers. Such an approach would defeat the very purpose of the statutory provision contained under Section 14D of the. Act. The said provision is intended to ensure recovery of immiediate possession of premises to a widow. The provision was enacted.by the legislature to ameliorate the condition of helpless widows like the one in the present case. in addition to being widoW,..the petitioner in the present case is a handicapped person. The .Controller has granted leave to contest mechanically without taking into consideration the conditions which are germane for deciding applications for leave to contest, such an approach defeats the very purpose of the statutory provision.

(8) Apart from the points discussed above, the learned counsel for the respondent argued during the course of hearing of the present petition that. the respondent No. I never .attorney to the petitioners as a tenant.No notice was ever served by-the petitioner of the-respondent No.1 to attorn to her. From this, it is argued that there, is no .relationship of landlord and, tenant between the parties and, therefore, the petition is liable to be dismissed. This is a case in which the respondent no . I is trying to taKen advantage of his own wrong by advancing such an the argument the respondent no. 1 has nut paid even a single penny towards rent nor all this period and now he, is setting up this argument of absence of relationship of land lord and tenant, He does not say as to who else, it not the petitioner, is the landlord/owner or the premises. For a petition under Section 14D of the Act, the landlord does not have to prove ownership as such. Still the tact that petitioner is owner/ landlord is established by mutation to the. property in favor to the petitioner on the basis to a registered will executed by her mother in her favor. This argument of absence to relationship of landlord and tenant is further falsified by the alleged agreement dated 22nd May, 1989. "I he said agreement has been set up by respondent No. I and, therefore, it can be used against him to meet his argument. The said agreement is alleged to have been executed by Smt. Sukhwant Kaur, mother of the petitioner as owner/landlady of the premises. The respondent No. 1 has agreed to pay rent with respect to the premises in suit to the said Smt. Sukhwant Kaur under the said agreement. Respondent No. I is in possession of the premises as a tenant on his on showing under Smt. Sukhwant Kaur. He has allegedly paid rent for two months to Smt. Sukhwant Kaur in cash as recorded in condition no. 4 on page 3 of the alleged agreement. The petitioner is a successor in interest from Smt. Sukhwant Kaur. The argument of absence of relationship of landlord and tenant, therefore, is not open to the respondent No. 1.

(9) Next it was argued on behalf of respondent No. I that the premises is commercial and, therefore, the respondent No. 1 cannot be evicted. In a petition under Section 14D of the Act, the letting purposes is not material. Still the facts on record show that the plea that the tenancy premises is purely commercial is not tenable. The respondent No. 1 Along with his reply in the present case filed a photostat copy of a Conveyance Deed with respect to another building in the area to show that the property is purely commercial. With the rejoinder, the petitioner filed photo copy of the deed of Conveyance with respect to the suit premises, para 6 where of reads as under: "(6)Nut to use the said land and buildings for any purpose other than the purpose, of residence without the previous consent ill writing of the vendor or an officer appointed by him in this behalf."

(10) THE; original Conveyance; Deed was produced at the time of hearing, in view of the aforesaid clause (6), the argument that the premises as commercial is not open to the respondent No. 1. However, the plea of respondent -No. 1 that the tenancy premises is commercial and is purely used for commercial purposes is also belied by the alleged rent agreement dated 22nd May, 1989. As already noted, the said agreement has been set up by respondent No. I and the same can be used against him irrespective of the fact that the agreement appears to be not worthy of credence and forged.-In the. said agreement, it is stated in clause (3) that front portion of the tenancy premises, will be used as a shop and the rear portion will be used for residential purpose by tenant. Therefore, on their own showing, the premises in suit is partly used for residential purpose.

(11) For all these reasons, the impugned order dated 28th March, 1995 is liable to set aside. As per material on record, it is not a case for grant of leave to contest. The Additional Rent Controller was in error in granting leave to contest the eviction petition on the grounds contained under Section 14D of the Act. The application of the tenant for leave to contest the eviction petition is thus ordered to be rejected. The consequences of rejection of the application for leave to contest is that averments in the petitioner under Section 14D of the Act are deemed to be correct. An eviction order is passed in favor of the petitioner and against respondent No. I with respect to the tenancy premises comprising of entire ground floor of property No. 23 j 16, East Pate/ Nagar, New Delhi shown in red in the plan filed along with the eviction petition. In the interest of justice, two months time is granted to the respondent No. 1 to vacate the tenancy premises- if a tenant is able to bring his case within exceptional reasons for the objection to be permitted to be raised, he may approach the Controller at any time. What is sought to be emphasised is that in any event it has no relation to proceedings taken by landlord to get the possession restored after expiry of the limited tenancy on account of failure, of tenant to restore possession. The action of the tenant is an independent step.