Shushma Jain vs Jinender Kumar Jain & Ors
2012 Latest Caselaw 922 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Judgment: 09.02.2012

+R.C.REV No. 22/2005 & CM No.10203/2009


SHUSHMA JAIN                                 ..... Petitioner
                        Through:   Mr.R.M.Bagai , Advocate.

                   versus

JINENDER KUMAR JAIN & ORS.                   ..... Respondents
                  Through:         Mr.A.P.Aggarwal, Advocate for
                                   R-1.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1. Present petition has impugned the order dated 25.9.2004

vide which the eviction petition filed by the landlord-Shushma Jain

under Section 14(1)(e) of the Delhi Rent Control Act (hereinafter

referred to as the DRCA) seeking eviction of her tenant-Jinender

Kumar Jain from the suit premises on the ground of bonafide

requirement had been dismissed.

2. Record shows that the petitioner's case is that the

respondent was a tenant in her premises i.e. premises bearing

No.4663-64, Deputy Ganj, Ward No.13, Delhi-6 in respect of two

rooms, one store, one kitchen, one bathroom and open courtyard

situated on the first floor, barsati and tin shed along with open

terrace on the second floor. Petitioner is stated to be the owner of

the said premises having purchased from the previous owner vide

sale deed dated 14.11.1991. Premises were required bonafide for

her and the use of her family members who comprises of herself,

her husband and three children aged 20,18 and 16 years;

presently she is living in one room with kitchen on the second

floor of the property bearing No.4494, Gali Raja PatnaMal, Pahari

Dheeraj, Delhi which was ancestral property of her father-in-law.

3. Leave to defend had been granted and the tenant filed his

written statement. Contention of the tenant was that he had lastly

paid rent to Shanti Swaroop; he never attorned to the present

petitioner. Further contention was that the property where the

petitioner is presently residing is property bearing No.4494, Gali

Raja Patna Mal, Pahari Dheeraj, Delhi and the same is three

storied structure constructed on a 400 sq. yards plot and the

accommodation presently available with the petitioner is sufficient

for her needs; there are 10 rooms in the said premises; her

husband has independent right over the said property. It is

denied that the need of the petitioner was bonafide for the present

accommodation. The additional contention of the tenant was that

property bearing No.C-76, Mahendroo Enclave, G.T.Karnal Road,

Delhi constructed on a plot measuring 150 sq. yards having 2½

storied structure was also owned by the petitioner and her

husband; it was sold on 02.7.1996 only to create a paucity of

accommodation to get the tenant evicted from the suit premises.

4. Evidence was led both oral and documentary. Three

witnesses were examined on behalf of the landlord and one

witness had come into witness box on behalf of the tenant.

Record shows that it is an admitted fact that the landlord after his

occupation of the premises at D-43. Ashok Vihar had shifted

residence to A-63, Ashok Vihar; but in what capacity he was

retaining occupational possession of these premises has to be

answered.

5. Parties have agreed that this is a fit case for remand;

opportunity is granted to the landlord to adduce his evidence to

establish his averment that the premises at D-43/A-63, Ashok

Vihar were tenanted premises as also his further submission that

his share in the ancestral property i.e. property bearing no.4494,

Gali Raja Patna Mal, Pahari Dheeraj, Delhi is only a meager share

of 1/45th which finds returned in the decree and judgment by the

Trial Judge dated 12.3.2010 against which an appeal had been

filed but as on date the share of the petitioner is only 1/45 th in the

said property. Learned counsel for the respondent has no

objection to the remand but he states that he should also be

granted corresponding permission to lead his evidence in defence.

Accordingly the matter is remanded back to the trial court. For

the said purpose the Additional Rent Controller after recording

the evidence of the respective parties shall return finding in terms

of the averments/evidence led by the parties. Parties are directed

to appear before concerned District Judge (Central) on 22.02.2012

at 10.00 AM who shall assign the matter to the concerned court.

6. With these directions, the petition is disposed of.

7. Trial court record be sent back.

INDERMEET KAUR,J

FEBRUARY 09, 2012/rb