Zahida Begum vs Akhtar Ali
2011 Latest Caselaw 5615 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 21.11.2011

+      C.R.P. No. 410/2003

ZAHIDA BEGUM                               ...........petitioner
                         Through:    Ms. Manu Nayar and Ms. Amar
                                     Pal, Advocates.

                   Versus

AKHTAR ALI                                ..........Respondent
                         Through:    None.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?             Yes

  3. Whether the judgment should be reported in the Digest?
                                                       Yes
INDERMEET KAUR, J. (Oral)

1. This petition has impugned the judgment and decree dated

10.12.2002 whereby the eviction petition filed by the landlady

Smt. Zahida Begum seeking eviction of her tenant from the suit

premises (i.e. House No. 6777, Ahata Kidara, Bara Hindu Rao,

Delhi) which had been tenanted out to him at a monthly rent of

Rs.4/- had been dismissed.

2. Record shows that the landlady claims herself to be the

owner of the aforenoted premises; the premises have been

described in the site plan annexed alognwith the eviction petition

which shows that the premises comprise of one room with a tirpal

and a WC; it is bounded by galies on two sides; it bears property

No. 6777, Ahata Kidara, Bara Hindu Rao, Delhi. The ground for

eviction is the grounds as contained in Section 14(1)(e) of the

Delhi Rent Control Act (DRCA); contention is that presently she is

living in a house No. 6322, Gali Hazi Amit Bux, Qasabpura, Delhi

which is owned by her father-in-law Mohd. Rafiq and the

accommodation in this house consists of one room, one courtyard,

kitchen, bathroom and latrine on the ground floor; this property

is owned by her father in law; she alongwith her husband, three

sons and one daughter (now married), her father-in-law and

mother-in-law are residing in the property owned by her father-in-

law which is insufficient; they have no other accommodation; the

present tenanted premises is bonafidely required by her for her

aforenoted need.

3. In the written statement, this contention was disputed. Oral

and documentary evidence had been led. The petitioner had

examined herself as the sole witness; she had reiterated her

averments made in the eviction petition; in her cross-examination,

she had admitted that the property of her father-in-law is bearing

6322, Gali Hazi Amit Bux, Qasabpura, Delhi and has only ground

floor wherein the accommodation consists of one room, one

courtyard, kitchen, bathroom and latrine and there is no other

built up accommodation in that house. In a further part of the

cross-examination she has admitted that this building is a three-

storied building; in another part she has stated that this building

is a two-storied building; her contention being that only the

ground floor which is in occupation of her father-in-law and the

first floor is in possession of the younger brother of her father-in-

law i.e. Alio-uddin; second floor is in possession of another

younger brother of her father in law i.e. namely Mohd.

Shamimand the third floor is in occupation of yet another brother

i.e. Hazi Babu; reiterating her stand in the cross-examination that

this is in fact a three-storied structure. Admittedly, she has not

filed site plain of the property where she was residing; she had

denied the suggestion that this property comprises of 8 to 10

rooms.

4. Vehement contention of the learned counsel for the

petitioner is that in her examination-in-chief AW-1 has relied upon

a partition deed (Mark A); it was the partition deed of the said

premises showing partition of the said property between her

father-in-law and his brothers; contention being that in her father-

in-law's share only the green coloured portion had fallen.

Relevant would it to state that Mark A was never exhibited; this

document Mark A is purportedly the partition deed accompanied

by a site plan. Be that as it may, this site plan (filed alongwith

Mark A) is in black and white and the submission of the petitioner

that the green coloured portion had fallen to the share of her

father-in-law is thus not substantiated. However even presuming

this position to be correct and the court having been shown the

coloured site plan by the learned counsel for the petitioner (in

court today), even otherwise this site plan shows that the ground

floor comprises of two rooms, two courtyards, one kitchen, one

store, bathroom and latrine on the ground floor; which is clearly

contradictory to the stand of the petitioner that they are in

occupation of one room, one court yard, one kitchen, bathroom

and latrine. This contradictory and conflicting stand of the

petitioner had been noted in the correct perspective by the ARC

who had in these circumstances concluded that the petitioner has

failed to prove as to what is her bona fide need. Thus even

presuming that her family comprises of six family members, the

accommodation presently where she is residing i.e whether it is

sufficient or insufficient has not been answered by her. The site

plan (accompanying the partition deed) has in fact contradicted

her stand taken in the eviction petition i.e. which was reiterated in

her examination-in-chief. The bona fide need of the landlady

has thus not been established and rightly noted in the impugned

order.

5. In a judgment of a coordinate Bench of this Court in RC No.

171/2011 titled as Dolly Chandra & Anr. Vs. Rameshwar Prasad

dated 08.09.2011 the court had noted that the contradictory stand

taken by the respondent-landlord has introduced an element of

doubt about the bona fides of his requirement of the premises in

occupation of the petitioners as projected in his eviction petition.

6. Reliance placed by the learned counsel for the petitioner

upon the judgment of 1997 RLR 539 titled as Om Prakash vs. Dev

Raj to substantiate her submission that the landlord is the best

judge of his needs would be inapplicable to the instant case; even

assuming that the landlord is the best judge of his needs,

averments made in the pleadings should not be contradicting his

stand in his deposition on oath which is so in the instant case.

7. Petitioner has not come to the court with clean hands.

Parties who approach the court must come with clean hands.

8. Revision petition is without any merit; it is dismissed.

INDERMEET KAUR, J NOVEMBER 21, 2011 rb