Urmil Joshi & Ors. vs Smt. Raj Batra
2012 Latest Caselaw 1491 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment: 02.03.2012

+     RC.REV. 100/2012

      URMIL JOSHI & ORS                         ..... Petitioners
                    Through:             Mr.Jatinder Kamra, Advocate.

                       versus

      SMT RAJ BATRA                        ..... Respondent
                   Through:              Nemo.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1. Order impugned is the judgment and decree dated 07.10.2011;

the eviction petition filed by the landlady Smt. Raj Batra seeking

eviction of her tenant Urmil Joshi from the suit premises i.e. first floor

of the property bearing No.A-54, Lajpat Nagar -IV, New Delhi as

depicted in red colour in the site plan (filed in the Trial Court). The

application seeking leave to defend had been dismissed.

2. Record shows that the present eviction petition has been filed by

the landlord on the ground of bonafide requirement. Contention is that

the petitioner is the landlady; she has inherited this property from her

father Ladha Ram Batra after his death; she is the sole owner of the suit

property. Premises had been rented out to the tenant by her father at a

monthly rental of ` 200/-; the family of the petitioner comprised of

herself and her one married daughter. Petitioner is a resident of London;

her daughter is also a resident of Manchester, U.K.. The family of her

daughter comprises of her husband and two children. Both the

petitioner and her daughter visit India often. Specific contention of the

petitioner is that the petitioner comes to India at least twice in a year and

so also her daughter; they have to come India for their personal works

and have to stay in hotel; which causes unnecessary expense and

discomfort to the petitioner and her daughter. The petitioner wants to

settle in India but due to non-availability of the suit premises she is not

in a position to do so; the tenant is in fact a resident of Mohali and the

premises are lying locked by her. The petitioner requires the premises

bonafide for herself and her family members. Eviction petition was

accordingly filed.

3. The averments made in the application seeking leave to defend

have been perused. The ownership of the premises is not in dispute.

The only argument raised and pleaded in the leave to defend is that the

bonafide need of the landlady has not been established; she is admittedly

a resident of London; her daughter is also a resident of Manchester,

U.K.. The ground floor of these premises had in fact been sold by the

landlady in the year 2008-2009; the eviction petition for the vacation of

the premises had been filed year 2009; her bonafide need had not been

established; she also has an alternate accommodation at A 67, Shalimar

Bagh. The tenants are poor persons and it is difficult for them to

accommodate themselves elsewhere. The tenant is in fact a senior

citizen aged 71 year and is running tuition classes.

4. The corresponding paras of the reply to the leave to defend

application have disputed this contention. It is denied that the premises

are not required bonafide by the landlady for her residence. It has been

reiterated that landlady wants to settle in India but because of non-

availability of the accommodation she cannot do so; it is undisputed that

she visits India and sometime more than twice in a year she and her

daughter who also comes to India and they have to stay in hotel and face

unnecessary expenses and discomfort. It has admitted that the ground

floor of the suit premises had been sold in the year 2008 to Ramesh

Khattar who was the earlier tenant in the ground floor; contention being

that because the landlady was in need of money she had to sell this

property to the tenant. The submission of the tenant that the landlady

has another alternate accommodation at A-67, Shalimar Bagh had been

vehemently denied; contention being that these premises belong to her

sister Sneh Arora and are not owned by her.

5. Section 14(1)(e) of the DRCA affords a right to a landlord to seek

vacation of his premises if the premises are required by the landlord

either for himself or for any member of his family who is dependent

upon him. The specific averment of the landlady is that she wishes to

settle in India but cannot do so because of non-availability of

accommodation; her further undisputed submission being that she has

frequent visits to India along with her daughter; the family of her

daughter includes her husband and two children; the contention of the

landlady that in these frequent visits she has to unnecessarily stay at a

hotel and incur expenses and discomfort although she has an

accommodation in India which has been tenanted out to the petitioner is

also not denied. In these circumstances, the bonafide need of the

landlady to get these premises evicted for herself has prima facie been

established. It is also come on record that there is no other residential

accommodation with the landlady. The submission of the tenant that

A-67, Shalimar Bagh is a premises owned by the landlady has been

specifically negatived; the premises are owned by her sister Sneh Arora.

6. In this context the observation of the Apex Court in the judgment

reported in 97 (2002) DLT 997 S.P. Kapoor Vs. Kamal Mahvir Prasad

Murarka & Ors. would be relevant.

"In the case in hand it is satisfactorily shown on record that the respondent no.1 the

landlord/owner of the premises in question, although a permanent resident of Mumbai has

to visit Delhi off and on in connection with his political and business matters. He is a man

of status who needs sufficient accommodation even in the course of his short visits to Delhi

so that he may live comfortably and discharge his social and business obligations

effectively. It is true that his two daughters are already married but the averment in the

petition is that they may also stay in the premises in question during their visits to Delhi.

The Courts have no justification to insist that he should either live in hotels or hire some

other accommodation merely for the sake of protecting the tenancy of the petitioner. The

respondent no.1 owner/landlord cannot be asked to face inconvenience and adjust in

smaller accommodation here and there in the course of his visits to Delhi. This Court,

therefore, has no hesitation in concluding that the claim of respondent no.1 in regard to his

bona fide need of premises in question for his residential use was reasonable and bona fide.

The plea of petitioner that this plea is not bona fide or a mere pretence to evict him in

unfounded and does not give rise to any triable issue for grant of leave to defend to him."

7. In a judgment reported in 48(1992) DLT 208 T.D.Dhingra Vs.

Pritam Rai Khanna a Bench of this Court while dealing with the need

of a non-resident Indian to enjoy his own property in India when she

chooses to return India the Court had inter alia noted as follows:

"Counsel has not been able to point out any provision of law whereby an India who had

acquired foreign citizenship is disentitled to enjoy residence in his own property in India

when he chooses to return to India. The passport of the respondent was brought in the

Court which shows that ever since 1988 he has been staying in India and even in 1991 his

visa was extended up to the year 1994."

8. In the instant case also it is specifically averred that the petitioner

wishes to return to India to settle here but cannot do so because of non-

availability of accommodation; there is nothing to show that this

statement is to be disbelieved. It is also admitted that the petitioner and

her daughter have to make frequent visits to India; they have to come

here for their personal needs; the factum that the landlady in fact wishes

to shift to India had not been disputed in the application seeking leave to

defend.

9. Unless and until triable issues arise leave to defend should not be

granted by the courts in a routine and mechanical manner. This

proposition has been reiterated time and again by Apex Court.

10. 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."

11. In (1982) 3 SCC 270 Precision Steel & Engineering Works &

another Vs. Prem Devi Niranjan Deva Tayal the Apex Court has held

that the prayer for leave to contest should be granted to the tenant only

where a prima-facie case has been disclosed by him. In the absence of

the tenant having disclosed a prima-facie case i.e. such facts as to what

disentitles the landlord from obtaining an order of eviction, the Court

should not mechanically and in routine manner grant leave to defend.

12. There is no doubt that the ground floor of the premises had been

sold by the landlady in 2008; this was admittedly sold to the old tenant

Ramesh Khatter who was already residing on the ground floor; this was

for financial reasons. This contention of the tenant that the present

premises are being got vacated from him in order to extract higher rents

does not have any force. Apart from the fact that a specific undertaking

has been made in the present petition that the landlady will not part with

the possession of the premises to another person and she will retain the

premises, the legal consequences which even otherwise would flow are

known to the landlady in terms of Section 19 of the DRCA; the ground.

13. The landlady is the best judge of her requirement; it is not for the

tenant or the court to dictate terms as to how and in what manner she

has to meet her needs for an accommodation. In Prativa Devi (Smt.) Vs.

T.V. Krishnan reported in (1996)5SCC353 it was noted:-

"The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own."

14. In this back ground the application seeking leave to defend having

been dismissed as a result of which the eviction decree had fallen in the

hands of the landlord. There is no merit in the petition; it is dismissed.

INDERMEET KAUR, J

MARCH 02, 2012 nandan