Sarita Sharma & Ors vs Sunder Devi
2012 Latest Caselaw 1586 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 06.03.2012

+      Rev. Pet. 129/2012 and CM Nos. 4172-4175/2012 in RC.REV.
       69/2012

       SARITA SHARMA & ORS                         ..... Petitioners
                   Through              Mr. Varun Goswami, Mr. Vijay
                                        Kumar and Mr. Rajesh Singh,
                                        Adv.

                    versus

       SUNDER DEVI                                   ..... Respondent
                             Through    None.

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1. This is a review petition. This petition seeks a review of the order

dated 14.02.2002 wherein counsel for the petitioner Mr. Vijay Kumar

had sought permission of this court to withdraw this petition; permission

having been granted petition had been dismissed as withdrawn. The

petitioner was aggrieved by this order; he had filed an SLP before the

Apex Court; the Apex Court on 02.03.2012 had granted permission to

the petitioner to move an appropriate application seeking review of this

order before this court; petitioner is accordingly before this court today.

2. Contention of the learned counsel for the petitioner is that

although admittedly Mr. Vijay Kumar was the advocate of the petitioner

but he had made a wrong statement on the date when the impugned

order was passed i.e. 14.02.2012. Relevant would it be to state that it is

not the contention of the petitioner (now represented through a new

counsel) that Mr. Vijay Kumar was not authorized to appear on behalf

of the petitioner or Mr. Vijay Kumar had made a statement which was

not as per the instructions of the petitioner; contention is that the earlier

advocate, Vijay Kumar was under the impression that since the ground

urged by him before this court was a ground which did not find mention

in his application for leave to defend, it would be more appropriate for

him to withdraw this petition and to agitate the impugned order by way

of a writ petition. This is borne out from the submission made by Mr.

Vijay Kumar who had been also requested to appear in court today.

Petitioner is also present in person. In fact it is not the case of any

person before this court (i.e. the petitioner, his counsel, Mr. Vijay

Kumar or the new counsel, Mr. Varun Goswami) that Mr. Vijay Kumar,

Advocate did not have the requisite power of attorney or the authority to

make a statement on behalf of the petitioner. This petition accordingly

deserves to be dismissed on this ground alone.

3. Be that as it may, the merits of the controversy raised by the

petitioner have also been considered. His contention is that his

application seeking leave to defend could not have been dismissed as

triable issues had been raised by him; attention has been drawn to the

averments made in the application seeking leave to defend wherein it

has been brought to the notice of the court that the landlord was also the

holder of another property i.e. property bearing No. 7753, Nawab Road,

Sadar Bazar, Delhi measuring 7.5' x 20'; there was yet another property

which was available with the landlord which is property bearing No. E-

16/243, Tank Road, Bapa Nagar, Karol Bagh, New Delhi measuring 15'

x 20'; these alternate accommodations have not been considered by the

ARC. In this background, eviction petition having been decreed suffers

from an infirmity

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

the landlady under Section 14-D of the DRCA; contention is that one

room/shop on the ground floor of property bearing No. H-16/47, Gali

No.4, Tank Road, Bapa Nagar, Karol Bagh, New Delhi had been let out

by the husband of the petitioner to the husband of the respondent No. 1.

The petitioner is the owner of this property by virtue of registered

documents i.e. general power of attorney, agreement, affidavit and Will

dated 18.01.1985; house tax has also been paid by the petitioner. No

dispute has in fact been raised by the counsel for the tenant on the

ownership/qua the status of the petitioner as landlord. His only

grievance is that the alternate accommodations which were available

with the landlord (as noted above) have not been considered by the

Trial Court. The corresponding para of the reply seeking leave to defend

have been perused.

5. The tenant has categorically stated that property bearing No.

7753, Nawab Road, Sadar Bazar, Delhi which was an ancestral property

of her deceased husband measuring about 50 sq. yards has been

distributed floorwise among the share holders and share of the husband

of the petitioner was one room measuring 7.5' x 20' which was earlier

under the tenancy of Harnath Singh and which is now in occupation of

her elder son namely Deshraj, his wife and two children after this room

was vacated on 13.11.2002. Qua the other property i.e. property bearing

No. E-16/243, Tank Road, Bapa Nagar, Karol Bagh, New Delhi, it has

been stated that one portion of this property measuring about 33 sq.

yards had been purchased by the petitioner on 26.11.1999 in her name

and re-built in the year 2000 and let out to the tenants; first floor is being

occupied by her younger son Charan Singh for a commercial purpose

which comprises of one room and one kitchen; it was a hall which was

divided into two portions; first portion is being used as a bed room and

the other portion is being used as a kitchen-cum-bathroom. The

petitioner continues to reside on the second floor of the said premises;

the ground floor, second floor and third floor are in occupation of other

tenants. Petitioner is stated to be an aged widow lady suffering from

knee-pains as also diabetic and finds it difficult to climb to the 2 nd floor

of the suit property where her room is located. Present shop would be

used for a residential purpose which is on the ground floor; it is also

located in the residential area. It was in this background that the bona

fide need of the landlord was found to be established and eviction

petition had been decreed in favour of the landlady.

6. This petition is a petition under Section 14 (D) of the Delhi Rent

Control Act (DRCA). The essential ingredients require to be established

by the petitioner are that (i) the landlady is a widow; (ii) the premises

have been let out either by herself or by her husband. (iii)the premises

are required by her for her residence. There is no dispute to the first two

ingredients; as noted above, arguments have been addressed only on the

third ingredient which also stands satisfied. It would be relevant to note

that the provision under Section 14 D of the DRCA does not contain the

word 'bona fide'; it must be presumed that the averments made by the

landlady are averments which are bona fide; she has been able to

establish that the accommodation which is available with her on the

second floor is not suitable for her need.

7. The Supreme Court in V.Rajaswari Vs. Bombay Tyres

International Ltd. reported in (1995) Supp (3) SCC 172 had noted that

an averment the fact that the landlady/widow is living with her

daughter or any other person is no ground to say that the premises in

question are not required for her residence. The Apex Court in order to

make this provision more reasonable had read into it that the need to

substantiate the request of the widow to recover possession of the

premises for her own residence should be bonafide; the word 'bonafide'

being missing from the provisions of Section 14-D, her need and request

for the premises even in the absence of a specific stipulation to that

effect should be read as a bonafide need.

8. Thus even on merits, no case is made out to interfere with the

reasoned order passed by the Trial Court.

9. Petition is without any merit; dismissed.

INDERMEET KAUR, J MARCH 06, 2012 rb