Kanchan vs G.P. Srivastava
2006 Latest Caselaw 1037 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. Admit.

2. At the request of the parties, the matter is taken up for final disposal at this stage.

3. The petitioner is the owner / landlord of an L.IG. flat in the Co-operative Group Housing Society bearing No. B4/69, Paryatan Vihar, Vasundhra Enclave, Delhi. The petitioner is a widow and is presently residing in Gurgaon.

4. Late husband of the petitioner, Shri Radhey Krishan had booked the said flat and possession of the said flat was taken over in November, 1989. The flat consists of one bed room, one drawing room, one kitchen and one bath room. The flat was let out to the respondent, who is an Advocate by profession, in 1994 and the tenancy is oral.

5. The husband of the petitioner unfortunately passed away on 11.12.2003 on account of Cancer and the petitioner, thus, became the landlady. The petitioner has been making payment of house-tax and the respondent has been paying rent to the petitioner after the demise of her husband.

6. It is alleged that late Shri Radhey Krishan had requested the respondent to vacate the tenanted premises, but the respondent did not oblige. Late Shri Radhey Krishan required special treatment in the Cancer Hospital and was referred to Dharamshilla Cancer Hospital, Delhi, which was in the vicinity of the tenanted premises and even when on that account, the request was made to the respondent to vacate, the respondent failed to oblige. The members of the society and other people intervened to sort out the matter and the respondent gave a letter to late Shri Radhey Krishan that he would vacate the flat by 31.01.2006. This letter was given on 22.10.2003, i.e., prior to the demise of late Shri Radhey Krishan.

7. It is stated that after the demise of the husband of the petitioner, a request was made by the petitioner, but the respondent failed to vacate the premises, thus, the petitioner filed an eviction petition under Section 14-D read with Section 25-B of the Delhi Rent Control Act, 1958 ( for short, 'the said Act' ).

8. The respondent sought leave to defend the petition and by the impugned order dated 20.08.2005, leave was granted to the respondent.

9. The petitioner aggrieved by the said order has filed the present petition.

10. Learned Counsel for the petitioner contends that the impugned order suffers from errors apparent on the face of the record as the true scope of enquiry to be made in a petition filed under Section 14-D of the said Act has not been correctly appreciated by learned Additional Rent Controller ( for short, 'ARC' ).

11. Learned Counsel submits that the tenanted premises were let out for residential purposes. The petitioner is a widow. The petitioner required premises bona fide for her occupation as she wanted to shift to her own flat in Delhi along with the younger son, who was still studying. It has also been stated that during the period when the petitioner's husband was not well and was suffering from Cancer, the petitioner had to take loans from other family members and relatives to provide medical treatment and since she is only a co-owner of the property at Gurgaon, she persuaded the other co-owners to sell the property, which could not be sold out due to poor location. The property in Gurgaon is stated to be located in the old Gurgaon area in the interiors and not in the developed portion of Gurgaon. As a consequence of the same, the petitioner wanted to sell the said flat and entered into an Agreement to Sell dated 03.05.2004 with one Mrs. Jolly Banerjee requiring payment to be made at the earliest. However, even Mrs. Jolly Banerjee could not make the payment in time and the advance was forfeited and the deal was closed. The petitioner now wants to sell the Gurgaon House, but has to also locate a place to shift, which could only be the Delhi flat.

12. The basic claim made by the respondent is that the house where the petitioner is residing in Gurgaon is a double-storey house having 5 rooms, kitchen and bath room and the petitioner has been residing therein for the last 15 years. The petitioner is alleged to also have constructed a shop at the premises in Gurgaon where she runs a business under the name and style of Kanchan Garments for several years. The respondent claims that the petitioner wanted to sell the flat and did not require it for her own use.

13. A reading of the impugned order shows that learned ARC has mistakenly proceeded to treat the petition as if it is a petition for personal bona fide requirement under the provisions of Section 14(1)(e) read with Section 25-B of the said Act and has considered the parameters of a test of friable issue and not the final success in the action to be the basis. The factum of the petitioner having entered into an earlier Agreement to Sell in respect of the flat on 03.05.2004 and the shop at Gurgaon premises has weighed with learned ARC in granting leave to defend.

14. I am in agreement with the submissions advanced by learned Counsel for the petitioner that learned ARC apparently has gone astray in applying the parameters of Section 14(1)(e) as against of Section 14-D of the said Act. No doubt, both the provisions provide for an application for leave to contest the eviction petition to be filed and there is some similarity, but the principles are not exactly the same.

15. The petitioner has clearly explained her factual position and it is not even disputed that the petitioner satisfies the ingredients as required under Section 14-D of the said Act except to the extent that the respondent disputes the requirement. Section 14-D of the said Act reads as under:

14D. Right to recover immediate possession of premises to accrue to a widow:

(1) Where the landlord is a widow and the premises let out by her, or by her husband, are required by her for her own residence, she may apply to the Controller for recovering the immediate possession of such premises.

(2) Where the landlord referred to in Sub-section (1) has let out more than one premises, it shall be open to her to make an application under that Sub-section in respect of any one of the premises chosen by her.

16. On the other hand, the provisions of Section 14(1)(e) read as under:

14. Protection of tenant against eviction.: (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favor of the landlord against a tenant:

Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:

...

(e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation;

Explanation.: For the purposes of this clause, "premises let for residential purposes: include any premises which having been let for use as a resident are, without the consent of the landlord, used incidentally for commercial or other purposes;

19. The Division Bench of this Court in Dr. P.P. Kapur v. Union of India and Ors. considered the scope and ambit of the provisions of Section 14-D of the said Act. It was noticed that Section 14-D uses the word 'required' and not 'bona fide required' as in Section 14(1)(e). It has been held that the word 'required' in Section 14-D must mean something more than a mere desire of the landlord to live in the premises in question. It has also been held in S. Surjit Singh Kalra v. Union of India and Anr. 43 (1991) DLT 447 that absence of the word 'bona fide' in Section 14-D does not absolve the landlord from proving the same. Further, there is no doubt in view of the said pronouncement that in construing the requirement of a widow lady under Section 14-D, the requirement of the members of the family can be included.

20. The Supreme Court in K.L. Malhotra v. Smt. Prakash Mehra AIR 1991 SC 99 held that Section 14-D was inserted in the said Act conferring special benefits on a widow. This benefit was distinguished from the general benefits conferred on a landlord to seek for eviction on the ground of bona fide need, as the class of persons to whom Section 14-D would apply is different from the class covered by Section 14(1)(e) of the said Act.

21. The Supreme Court again in J. Chatterjee v. Mohinder Kaur Uppal and Anr. has observed that Section 14-D is in the nature of a special provision for a widow incorporated with the legislative intent to provide relief to the said category of persons. The provision is intended to serve a social need to help a widow in getting possession of the premises. Thus, heavy burden is placed on the tenant to satisfy the Controller by filing an affidavit stating such facts which, if believed, will sufficiently prove that the plea of need of personal occupation by the widow is nothing but a pretence. However, the Controllers were directed to keep in mind that a petition for eviction filed by a widow under Section 14-D should not be frustrated by granting leave to contest to raise any plea denying / refuting the case pleaded in the eviction petition and until and unless real and substantial case was made out on the averment made in the affidavit, the proceedings should not be dragged on unnecessarily.

22. If the conspectus of the aforesaid judgments is kept in mind, the legal position, which emerges, is that mere bald allegations of a tenant are not to be given weight and there must be at least some prima facie strength in the allegations. The distinction between the parameters to be applied under Section 14-D and Section 14(1)(e) has been enunciated aforesaid. It is not as if the absence of the word 'bona fide' in Section 14-D means that even a mala fide petition has to be allowed, but the benchmark is different as the tenant cannot widen the scope of his defense by relying upon Section 14(1)(e) in view of the observations in S. Surjit Singh Kalra's case (supra).

23. If the aforesaid tests are applied in the present case, I am of the considered view that the petitioner / landlord has clearly made out a case for eviction under Section 14-D of the said Act and there is no ground for grant of leave to defend to the respondent. The basic error in the impugned order is that even the discussion made by learned ARC and the judgment cited is in respect of Section 14(1)(e) of the said Act.

24. The photographs filed on record show that the property in Gurgaon is a small property. It is not as if any other alternative property in Delhi is available to her. The property at Gurgaon is a joint property. What is claimed to be a shop is a small room. If the petitioner wants to shift to Delhi, which she wanted to do even during the lifetime of her husband, she cannot be denied the right to stay in her own property.

25. The petitioner has explained as to why she had entered into an Agreement to Sell in respect of the flat and there is merit in the contention. The Agreement has not been given effect to and, thus, it is not a case where the petitioner has sold the flat and is simultaneously seeking eviction. The petitioner, apart from the trauma of the demise of her husband because of Cancer, had apparently incurred financial liabilities and was trying to find the way of making payments for the same.

26. I am, thus, of the considered view that the impugned order cannot be sustained, which is hereby set aside. The application filed by the respondent for leave to contest the petition is accordingly dismissed and an order of eviction is passed in favor of the petitioner and against the respondent.

27. The respondent appearing in person was asked whether he would like to agitate the matter further before the Apex Court or whether he would like to vacate the suit property on grant of time. The respondent appearing in person, who is an Advocate, stated that he would like to agitate his rights further. In view thereof, I am inclined to grant only 3 months' time to vacate the flat in question subject to the respondent furnishing an undertaking to hand over physical peaceful vacant possession of the flat on the expiry of the said period and such undertaking to be filed within one week from today with advance copy to learned Counsel for the petitioner. The undertaking would naturally be subject to any orders to be passed by the Apex Court on the petitioner filing a petition impugning the order passed today.

28. The petition stands allowed leaving the parties to bear their own costs.

CM    No.   13518/2005 
 

No further directions are called for in view of disposal of the main petition.
 

Application stands disposed of.