Delhi High Court
Bilkish vs Khushnuma on 21 February, 2012
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 21.02.2012.
+ RCR No.83/2012 & CM No. 3168/2012
BILKISH ..... Petitioner
Through Mr. Ravinder Dayal, Adv.
versus
KHUSHNUMA ..... Respondent
Through Nemo.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 Order impugned before this Court is the order dated 02.07.2011
vide which the eviction petition filed by the landlady under Section 14
(1)(e) of the Delhi Rent Control Act (DRCA) seeking eviction of the
tenant from the premises i.e. 60/218, ground floor, Sunlight Colony, Old
Seemapuri, Delhi had been decreed in favour of the landlady; the
application seeking leave to defend had been dismissed.
2 Record shows that the present eviction petition has been filed by
the landlady under Section 14 (1)(e) of the DRCA; the aforenoted
premises (comprising of one room and a verandah on the ground floor)
had been tenanted out to the tenant in January, 1998; the family of the
petitioner comprised of herself, her husband, two daughters and one son
i.e. 5 family members who were presently living in the one pucca
room/structure on the first floor and tin shed on the second floor; site
plan depicting the suit premises has also been filed along with the
eviction petition. Further contention in the eviction petition is that the
tenant had initially asked for temporary shelter to provide treatment for
her handicapped son and that is why the premises had been leased out
but inspite of requests she has thereafter refused to vacate the suit
premises. The accommodation presently available with the petitioner is
insufficient; she has no other alternate suitable accommodation; the
tenant in fact has an accommodation in Ghaziabad UP which is less than
one kilometer from the present premises; tenant can leave in the said
premises; present premises are bonafide required by the petitioner for
use for herself and her family members.
3 Application for leave to defend had been filed. The averments
made in the said application have been perused. On behalf of the tenant,
it has been contended that in the pleadings in this application seeking
leave to defend admittedly raise no triable issue; he has conceded that
this application seeking leave to defend had been badly drafted; in fact it
does not contain any defence which the petitioner now proposes and
submits before this Court. The only averment in the application seeking
leave to defend is that the petition is not maintainable as the need of the
landlady is not bonafide; she has another accommodation available with
her at Jawahar Park, UP which is hardly ½ a kilometer away which can
be used by her and the present premises are not required by her; the
present accommodation available with her is also sufficient for her
needs.
4 No other submission has been pleaded in this application seeking
leave to defend. Today before this Court, it has been urged that the
premises are in fact located in a slum area and permission under Section
19 of the Slum Areas (Improvement and Clearance) Act 1956 has not
been obtained; further submission being that the bar of Section 14 (6) of
the DRCA also hits the landlord and in factthe impugned judgment has
also noted this submission made by the tenant but has not dealt with it in
the correct manner; the impugned judgment has in fact recorded a
finding that even if a landlord wishes to sell the property after receiving
the vacant possession of the suit premises, nothing bars him from doing
so.
5 Record has been perused.
6 The triable issues have to be read from the pleadings of the parties
which is primarily from the defences raised by the tenant in his
application seeking leave to defend. As noted supra, the averments made
in the application seeking leave to defend have not raised any triable
issue except the issue that the landlady has an another alternate
accommodation at Jawahar Park which is sufficient to meet her bonafide
need and as such the need of the landlady is not bonafide. No other
ground has been pleaded in the said application. It has in fact been stated
by learned counsel for the petitioner that the application is ill-drafted but
the litigant should not suffer for this fault of the counsel. This
submission shall be dealt with in the discussion to follow.
7 Submission of the petitioner before this Court that permission
under the Slum Areas (Improvement and Clearance) Act is required
cannot be gone into in the absence of there being any such plea in the
application seeking leave to defend. Even otherwise, the Supreme Court
in Ravinder Dutt Sharma Vs. Ratan Lal Bhargava reported in AIR 1984
SC 967 had held that the special procedure contained in Chapter III-A as
introduced in the Rent Act by the amendment Act 1976 makes it no
longer a requirement of the landlord to obtain a permission from the
Competent Authority under Section 19 of the Slum Area (Improvement
and Clearance) Act, 1956 before instituting an eviction petition under
Section 14(1)(e) of the DRCA. The submission of the learned counsel
for the petitioner on this score is thus even otherwise without merit.
8 The second submission orally urged before this Court is that the
bar of Section 14 (6) of the DRCA operates against the present landlord
also does not find mention in the application seeking leave to defend;
this argument cannot be raised as no chance has been given to the
landlord to rebut this oral submission which has now been pleaded.
Even on a specific query put to learned counsel for the petitioner, he has
no answer as to how this provision would apply in the present case; it is
not the case of the tenant before this Court that the premises had been
acquired by transfer by the landlady; this provision would thus not be
applicable.
9 The only ground urged by the tenant in his application seeking
leave to defend is that the landlord has an alternate accommodation at
Jawahar Park to which reply filed by landlord and the averments made
in the corresponding para has been perused. This accommodation at
Jawahar Park is admittedly in UP and is not a part of Delhi. The
landlady presently is in occupation of one pucca room on the first floor
and a tin shed on the second floor; the tenant is in occupation of one
room with verandah on the ground floor on the same premises; family of
the petitioner comprise of five persons i.e. the couple as also their two
daughters and one son; the accommodation is highly insufficient as the
children are school going and they require separate rooms for their
studies and tuition; this has been specifically averred in the eviction
petition. The only pucca one room on the first floor is thus insufficient.
The second floor comprise of a tin shed. The tenant is in occupation of
one room with a verandah which is in the same premises i.e. on the
ground floor and as such the bonafide need of the landlady to take back
these premises from the tenant has been established.
10 No triable issue has been raised by the tenant on this count.
11 The Courts time and again have held that unless and until a triable
issue arises leave to defend should not be granted in a routine and a
mechanical manner. If this is allowed, the very purpose and import of
the summary procedure as contained in Section 25 B of the DRCA shall
be defeated and this was not the intention of the legislature.
12 In Nem Chand Daga Vs. Inder Mohan Singh Rana 94 (2001) DLT
683, a Bench of this Court had noted as under:-
"That before leave to defend is granted, the respondent must show that
some triable issues which disentitle the applicant from getting the
order of eviction against the respondent and at the same time entitled
the respondent to leave to defend existed. The onus is prima facie on
the respondent and if he fails, the eviction follows."
13 Impugned order thus decreeing the eviction petition of the
landlady suffers from no infirmity. Petition is without any merit.
Dismissed.
INDERMEET KAUR, J
FEBRUARY 21, 2012
A
