Tulsi Devi Khungar And Ors. vs Khairati Lal Jetley
1995 Latest Caselaw 473 Del

JUDGMENT

Mohd. Shamim, J.

(1) This revision petition is directed against an order dated May 2,1995 passed by an Additional Rent Controller, Delhi where by the learned lower court dismissed the application for leave to defend and passed an order of eviction in respect of the premises shown by red colour in the site plan EX.CA ( Annexure A).

(2) Brief facts which gave rise to the present petition are as under: that one Shri Khairati Lal Jetley, Lt. Col. (Retd.), (hereinafter referred to as the respondent for the sake of convenience) let out premises bearing No. D-15, defense Colony, New Delhi, to one Shri Narain Dass Khungar for residential purposes. Shri Narain Dass Khunger breathed his last on August 26,1981 leaving behind the present petitioners as his legal heirs.

(3) The respondent herein initially filed a petition for eviction against the petitioners under Section 14(l)(e) read with Section 25B of the Delhi Rent Control Act ( "the Act" for short), in the year 1983. The said petition was dismissed vide order dated July 16,1991 passed by Shri L.D.Malik, Additional Rent Controller, Delhi. The respondent again tried his luck and filed another petition for eviction of the petitioners under Section 14(l)(e) read with Section 25B of the Act on June 26,1994. This time the damsel luck smiled on him and the petition for eviction was allowed and an order of eviction was passed against the petitioners.

(4) Aggrieved and dis-satisfied by the said order the petitioners have approached this Court by way of the present revision petition.

(5) Learned counsel for the petitioners, Mr. V.P.Singh, Senior Advocate, has contended with great zeal and fervour that the learned lower court fell into a grave error by coming to the conclusion that no friable issue arose in the instant case and as such dismissed the application for leave to defend under Section 25B of the Act. According to the learned counsel, the learned Additional Rent Controller was required to go into the question as to whether the respondent has in fact permanently shifted to Delhi and as such, needed the tenanted accommodation for his occupation as residence bona fide. Thus the learned counsel contends that it was a friable issue and thus the learned Additional Rent Controller was under an obligation to hold as such and to grant permission for leave to defend.

(6) The learned counsel for the Caveator/respondent, Mr. Mukul Rohatgi, Senior Advocate, has urged to the contrary. According to the learned counsel the present revision petition is not maintainable and liable to be dismissed as such at this preliminary stage.

(7) I have heard the learned counsel for both the parties at sufficient length and have very carefully examined their rival contentions and given my anxious thought thereto..

(8) Learned counsel for the petitioners Mr. V.P.Singh has vehemently contended that the respondent is bent upon evicting the petitioners by hook or by crook, by fair or foul. It is with the said end in view that be has been filing petitions after petitions against the petitioners for their eviction. The learned counsel has in this connection led me through the petition which was filed in the year 1983 for eviction of the petitioners under Section 140(e) of the Act on the ground of bona fide requirement. However, having failed in his attempt to secure a favorable order the respondent filed another petition for eviction under Section 14B of the Act in the year 1989. The said petition was dismissed vide order dated October 11,1989 by the Rent Controller, Delhi. The respondent yet filed another petition for eviction under Section 14(1)(h) of the Act. The said petition is still sub judice before the learned Additional Rent, Controller. In view of the above, the learned counsel contends that the intention of the respondent is to secure the possession over the demised premises and to let it out at a higher rent. He does not need the tenanted premises for his personal residence and requirement.

(9) The next limb of the argument of the learned counsel for the petitioners is that the respondent has got sufficient land in Lucknow which is being used by him for cultivation of roses and for his residential purposes. Thus the respondent has got an alternative accommodation and he does not need the tenanted accommodation for his residential purposes.

(10) The contention of the learned counsel though appears to be a specious one at the first blush but in fact it is not so on a deeper scrutiny. He has in this connection led me through the letter dated August 24,1978 addressed by the respondent to the deceased Narain Dass, predecessor-in-interest of the petitioners. The learned counsel has argued on the basis of the said letter that the respondent wanted to sell and dispose of the tenanted accommodation. He as such requested the deceased either to purchase it himself or to find out a suitable purchaser.

(11) After going through the said letter very carefully I find that the respondent has in unequivocal terms given vent to his intention to live at Delhi. I am tempted here to cite the relevant lines from the said letter in order to substantiate my above point...." From my heart of heart I would desire to dispose of Lucknow property if possible and live at Delhi". It is true that the respondent has talked of disposing of the demised premises also, but it was on account of his straitened circumstances and as he has failed to establish himself at Lucknow. Thus we cannot gather from the same an intention that the respondent wanted to sell his property at Delhi.

(12) The learned counsel has then laid much stress to substantiate his view point on the photocopy of the objections which the respondent filed under Section 9 of the Land Acquisition Act before the Special Land Acquisition Officer, Lucknow. A perusal of the same reveals that the respondent had stated therein that he purchased the plot No. 129, village Ismail Ganj, District Lucknow Along with his sons and wanted to raise construction thereon for his own residence and for his sons who are in army as he wanted to lead his retired life peacefully. The learned counsel thus urges that the respondent has no serious intention for settling in Delhi. The above objections were admittedly filed in the year 1981 when the respondent was under an apprehension that his land was being acquired. There is no gain-saying the fact that the respondent initially purchased the land for cultivation of roses and for his residential purpose. However, it was long long ago,even prior to 1978. Thus there is nothing strange if he subsequently changed his mind and wanted to settle in Delhi. Admittedly, the respondent is a retired army officer. He retired from army in the year 1968 at the age of 52. Thus he is 80 years of age and at the fag end of his life. He is alleged to have sustained a hip bone fracture as is manifest from the averments in the petition. His wife is also an old lady, 77 or 78 years of age. Both of them are residing with their son i.e. Brig. V.K.Jetly at 222, Service Officers' Flats Part Ii, Dhaula Kuan, New Delhi. It has further been alleged that the respondent is undergoing treatment at the Military Hospital, New Delhi. The said facts, are not in dispute. Admittedly, Delhi being a capital town has got better medical and other facilities.

(13) There is another aspect of the matter. It has been stated in the petition that two of the grand daughters of the respondent Kumari Puja and Kumari Priya i.e. the daughters of Brig. V.K.Jetley, are studying in Delhi. Brig. V.K.Jetley is likely to be transferred on completion of his training to a non family station. Thus he will have to leave his family behind in order to enable his daughters to complete their education vide para xiii). Furthermore, it is alleged in the petitioner that Lt. Col. S.K.Jetley, son of the respondent, is on the verge of retirement. He and his family members also want to settle in Delhi.

(14) It has next been contended by the learned counsel for the petitioners that admittedly the respondent moved earlier also for the eviction of the petitioners on the ground of bona fide requirement, the said petition was dismissed by Mr.L.D.Malik, Additional Rent Controller, Delhi, vide order dated July 16,1991. The present petition is admittedly a second petition. Thus the present petition is barred by the principles of res judicata. I am sorry I am unable to agree with the learned counsel for the petitioners. It is a well settled principle of law that a second petition is always maintainable if the petitioner is able to show and prove new and additional grounds for the purposes of eviction. Admittedly, the said petition was filed on May 4,1983. The present petition was filed on June 26,1994 i.e. after 11 years. The respondent admittedly has grown v6ry old now. In the earlier petition the respondent expressed his intention to settle in Delhi. The petitioner has now in fact been residing with his son in Delhi. He has sustained the fracture of hip bone. He is in need of medical care. He and his wife further need the love and affection and care of their children. He is in fact in need of an attendant and someone to look after him. In the above changed scenario I feel that the present petition is not barred by the doctrine of res judicata.

(15) In the above circumstances I do not see any force in the present petition. Dismissed in liming.