Santosh Chaudhary And Ors. vs Tara Devi
2002 Latest Caselaw 683 Del

JUDGMENT

R.C. Chopra, J.

1. This petition under Section 25-B(8) of Delhi Rent Control Act (hereinafter referred to as "the Act" only) is directed against an order dated 9.12.2000 passed by Additional Rent Controller, Delhi by which the petitioners' application for leave to defend was dismissed and the respondent's petition under Section 14D of the Act was allowed.

2. The facts relevant for disposal of this petition, briefly stated, are that the respondent filed an eviction petition under Section 14D of the Act alleging that she was the owner/landlady of the premises, G-48, Green Park, New Delhi, shown in red in the site plan attached to the petition. She stated that she was a widow, aged about 76 years suffering from severe osteorthosis with severe genuvarum deformity of both the knees. She had undergone surgery for total knee replacement in the year 1999 and was still undergoing physiotherapy treatment. She had been advised further surgery also for the left knee joint. She alleged that she was residing at the first floor of the aforesaid building but climbing up stairs was very difficult and painful for her. She was not in a position to walk without the help of some support and as such, she could not continue to live on the first floor. She therefore, bonafide required the premises in question for her residential use.

3. The petitioners'/tenants moved an application for leave to defend under Section 25-B(5) of the Act pleading that the suit premises were neither residential nor let out for residential purpose nor could be used for residential purpose and as such, plea of the respondent landlady that she required these premises for the purpose of her residence was not tenable. They pleaded that the premises in question were situated on the ground floor and were surrounded by commercial establishments. In the same building also, there were so many shops adjoining the premises in question. They alleged that the respondent landlady had sufficient accomodation on the first floor, was enjoying perfect health and had no problems in walking etc.

4. Learned Additional Rent Controller after considering the pleas raised by the petitioners came to the conclusion that the petitioners had failed to show that the premises were let out for commercial purposes. It was shown on record that the premises were residential in nature; that the respondent was an old lady suffering from ailments as averred by her and as such, she was unable to climb stairs frequently. Holding that the petitioners had failed to raise any friable issue, the application for leave to defend was dismissed and an eviction order was passed under Section 14D of the Act.

5. I have heard Shri V.K. Makhija, Senior Advocate for the petitioners and Shri R. Venkataramani, Senior Advocate for the respondent. I have gone through the records.

6. Learned counsel for the petitioners has vehemently argued that the whole building in which the premises in question are situated, is being used for commercial purposes and the portion in occupation of the petitioners also is not capable of being used for residential purpose. Relying upon the judgment of this court in Dr. P.P. Kapur v. Union of India and Ors., reported in 1990 RLR (D.B.) p-318, it is contended that since the nature of the premises has undergone substantial changes and has been converted into a commercial building it has become unfit for residential use and as such incapable of being put to residential use by the landlord. It is submitted that the petitioners had succeeded in raising triable issues and as such, they should have been given a chance to substantiate their pleas by granting leave to defend.

7. Learned counsel for the respondent/landlord has referred to the Apex Court judgment in EMC Steels Ltd. v. Union of India, to contend that P.P. Kapur's judgment, as referred to by learned counsel for the petitioners stands over-ruled. He further argues that the premises in question comprise of two bed-rooms, bath WC and kitchen and as such, are capable of being used for residential purpose. He also argues that the premises were neither commercial in nature nor were let out for commercial purpose and the mere fact that some shops have come up in the adjoining portions or in the adjoining buildings, is not sufficient to conclude that the premises in question are incapable of being used for residential purpose. He also argues that the respondent landlady, because of her old age and various ailments is not in a position to live at the first floor. It is submitted that Section 14D of the Act being a special provision for the benefit of widows should not be set at knot by grant of leave to defend when the petitioners have not been able to raise any friable issue. In support of his arguments, he relies upon J. Chatterjee v.

Mohinder Kaur Uppal and Anr., and V. Rajaswari v. Bombay Tyres Intl. Ltd. 1995 Supp. (3) SCC

172.

8. After considering the submissions made by learned counsel for the parties, this Court is of the considered view that P.P. Kapur's judgment (supra) was over-ruled by the Apex Court in EMC Steel Limited's case (supra) only and in regard to the question that the benefit of Section 14D of the Act would be available to the widow irrespective of the fact as to whether the premises were let out before or after she became widow and irrespective of whether the premises were let out for residential or non-residential purpose. It is true that in the last para of the said judgment, the Apex Court had specifically observed that the decision of Delhi High Court in Dr. P.P. Kapur's case stood over-ruled but the views expressed by Division Bench of this Court in para-24 of the judgment in Dr. P.P. Kapur's case were neither agitated by the parties nor considered by the Apex Court in the said judgment. Therefore, it does not appear that judgment of Division Bench of this Court in Dr. P.P. Kapur's case, on the question as to whether the premises were capable of being used or not for residential purpose by the landlord, stood over-ruled.

9. Inspite of the conclusion that Dr. R.P. Kapur's judgment has not been over-ruled in toto, the petitioner's case does not again any mileage from the said judgment for the reason that the pleadings of the parties and the material placed on record in this case, including some photographs on this file, clearly show that the building in question, in which the tenanted premises are comprised, is a residential building and the nature and position of the premises in question is such that the some can be comfortably used by the respondent landlady for residential purpose. The premises in question comprise of two bedrooms, bath W.C. and kitchen as shown in red in the site plan attached to the eviction petition. This portion is capable of being put to residential use. Moreover the premises are adjoining the main gate of the building and as such, can be conveniently put to residential use without any interference from commercial users in the adjoining portions or buildings. This Court, therefore, has no hesitation in concluding that the premises in question are capable of being put to residential use. The plea of the petitioners to the contrary has no merit.

10. There is no dispute that the respondent landlady, aged about 76 years, is a widow suffering from various ailments and as such, it is very difficult for her to live comfortably on the first floor. Therefore, her need is bonafide and urgent. The purpose of letting has not been shown to be composite or commercial. It may be mentioned here itself that even if the premises in question had been let out for commercial purpose that would have made no difference for the purpose of Section 14D of the Act which does not refer to purpose of letting. Learned counsel for the petitioners relies on an order of Supreme Court in Shanti Devi v. Laxmi Devi (Civil Appeal No. 16432/2000) delivered on 11.12.2000 in which Apex Court remanded the case back to the Rent Controller. In the said case the suit premises consisted of only a shop measuring 8"x10" having no laterine, bathroom or kitchen and a such the Apex Court was of the view that the plea of the tenant that the premises were commercial in nature, required to be considered before rejection of his application for leave to defend. The facts of the said case were entirely different inasmuch as it was shown to the Court that the tenanted premises were not capable of being used for residential purpose. However, in the present case, the premises in question are a complete dwelling unit and as such, this judgment is of no help to the petitioners. The submission of learned counsel for the petitioners that learned ARC had failed to consider this aspect of the matter and as such the case should be remanded back to learned ARC for reconsidering leave to defend application cannot be sustained for the reason that pleadings and material on record are sufficient to enable this Court to determine the controversy. More over the findings of learned ARC that the premises in question are required by respondent for residential use and passing of eviction order under Section 14-D of the Act impliedly hold that the premises in question are capable of bring used for residential purpose. Undue delay in the matter would defeat the very purpose of Section 14D of the Act.

11. This Court, therefore, has no hesitation in concluding that the impugned order passed by learned Additional Rent Controller is according to law and does not suffer from any jurisdictional error or legal infirmity. In view of the parameters laid down by the Apex Court in regard to the powers of High Court under Section 25-B(8) of the Act, in Shiv Sarup Gupta v. Mahesh Chand Gupta , , this Court is not inclined to interfere with the discretion exercised by learned Additional Rent Controller.

The petition, therefore, stands dismissed.