Haji Yusuf Siddiqui vs Mohd Waseem & Anr
2012 Latest Caselaw 1828 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Date of Judgment: 16.3.2012

+            RC.REV. No.141/2011 & CM No.8661/2011


     HAJI YUSUF SIDDIQUI                    ..... Petitioner
                    Through:         Mr.Mohd. Rashid, Adv.

                  versus


      MOHD WASEEM & ANR                       ..... Respondents
                 Through:            Mr.S.H.Nizami, Adv.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1. Impugned judgment is dated 14.2.2009; application filed by the

tenant seeking leave to defend had been dismissed; eviction petition

filed the landlord under Section 14(1)(e) of the Delhi Rent Control

(hereinafter referred to as the DRCA) had been decreed.

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

the landlord on the ground of bonafide requirement; he has claimed

himself to the owner of the suit premises; the aforenoted suit premises

are property no.85/1, Gali No.2, Jaffrabad, Delhi. The petitioners have

become the owners by virtue of a oral gift deed dated 1.6.1988

bequeathed to them by their grandmother Laiq-un-nissa; pursuant to this

oral gift deed which had bequeathed the disputed property to them an

Award dated 19.11.1988 had followed which was made a Rule of the

Court on 23.01.1989; the petitioner claimed the status of

owner/landlord in respect of the aforenoted premises; contention was

that that his family consists of himself; he is a bachelor; petitioner no.2

is also of a marriageable age; the mother of the petitioners no.1 and 2 is

also dependent upon them who live with them. Petitioner no.1 wants to

start a new business from the suit premises; presently he is doing

business of embroidery from the only room which is in their

occupation; suit premises are accordingly required by him as there is an

acute paucity of accommodation. They are in occupation of only one

room; it has no kitchen, bathroom; they have no dining/ drawing room

or place of worship. The tenant himself has a large house i.e. House

No.64/2, Gali No.3, Jafrabad, Delhi which include a big hall and two

rooms on the ground floor, three rooms, kitchen bathroom, courtyard on

first floor and one room and open courtyard on the second floor.

Eviction petition on the ground of bonafide requirement had accordingly

been filed.

3. Leave to defend was filed. Three main grounds have been raised;

contention is that the gift deed was only an oral bequeath; it does not

confer any valid legal title upon the petitioners. It is, however, not

disputed that the property was originally owned by the grandmother of

the petitioners and after the oral gift deed dated 01.6.1988 an Award

dated 19.11.1983 was passed which was made into a Rule of Court on

23.1.1989; contention of the tenant being that this does not give

ownership right to the petitioners.

4. This submission of the petitioner is wholly bereft of merit. The

concept of ownership as envisaged in Section 14(1)(e) of the DRCA is

not the same as enjoined in proceedings in a title suit. There is no

dispute to the fact that the disputed premises were originally owned by

grandmother of the petitioners. The oral gift deed had been created in

favour of the grandchildren and on the basis of this oral gift deed an

Award had been passed which had become the Rule of Court; this was

made into a Rule of Court by a competent court of law. This decree has

attained a finality; it has not been the subject matter of challenge before

any court. This was thus a valid bequeath of rights in the property by

the grandmother Laiq-un-nissa in favour of her grandchildren i.e. the

present petitioners. It is also not the case of the tenant that he

recognizes any other person as his landlord.

5. In this context, the Apex Court in the case of (1987) 4 SCC 193

Smt.Shanti Sharma & Others Vs. Smt. Ved Prabha & Others had an

occasion to examine the concept of 'owner' as envisaged under Section

14 (1)(e) of the DRCA. The Apex Court has noted that the word 'owner'

has not been defined anywhere in the DRCA; the following extract of

the judgment of the Apex Court is relevant:-

"The word „owner‟ is not used in Section 14 (1) proviso (e) of Delhi Rent Control Act in the sense of absolute owner; where the person builds up his property and lets out to the tenant and subsequently needs it for his own use, he should be entitled to an order or decree for eviction, the only thing necessary for him to prove being bona fide requirement and he is the owner thereof. In this context the meaning of „owner‟ is vis-à-vis the tenant i.e. the owner should be something more than the tenant. In most of the modern townships in India the properties stand on plots of land leased out either by the Government or the Development Authorities and therefore it was not contemplated that for all such properties the landlord or the owner of all such properties the landlord or the owner of the property used in common parlance will not be entitled to eviction on the ground of bonafide requirement and it is in this context that we have to examine this contention.

It could not be doubted that the term „owner‟ has to be understood in the modern context and background of the scheme of the Act."

6. This argument of the petitioner is thus without any merit; it does

not in any manner raise any triable issue.

7. The second submission made by the learned counsel for the

petitioner is to the effect that the grandmother namely Laiq-un-nissa

during her life time validly terminated the tenancy of the tenant by a

notice dated 17.7.1985; contention is that even as per the case of the

petitioners they have become owners of this property by virtue of an

Award which had been made a Rule of Court on 20.3.1989; the present

petition filed under Section 14(1)(e) of the DRCA is beyond the period

of limitation as Article 67 of the Indian Limitation Act prescribes a

period of 12 years for a landlord to initiate eviction proceedings against

the tenant. This submission vehemently argued before this Court does

not find mention in the averments made in the application for leave to

defend. The ground of limitation has not been pleaded. Learned

counsel for the petitioner on this score submits that under Section 3 of

Limitation Act there is a mandate upon the court to examine the issue of

limitation even it has not been raised. There is no doubt to this

proposition that this court even suo moto take up the point of limitation

if it is simplicitor a legal issue. However, there is no dispute to the

proposition that a triable issue has to emanate from the pleadings of the

parties which would be the affidavit filed by the tenant accompanying

his application seeking leave to defend. There is no objection raised by

the tenant about limitation; the necessary corollary is that the landlord

had not got any opportunity to answer this plea which has now been

urged for the first time before this court; it also does not appear to have

been taken up as an objection before the trial court as the impugned

order has not dealt with the same; this has also been fairly conceded by

the learned counsel for the petitioner. Counsel for the petitioner to

substantiate his submission has placed reliance upon a judgment of

Supreme Court reported in AIR 1987 SC 1823 Smt. Shakuntala S.

Tiwari Vs. Hem Chand to support a submission that Article 67 of the

Limitation Act would be applicable even to proceedings under the Rent

Act. Article 67 of the Limitation Act enunciates that the time would

begin to run which would be 12 years from the date when the tenancy

was determined. In the application for leave to defend the tenant had

stated that the original landlady i.e. Laiq-un-nissa had determined the

tenancy vide a legal notice dated 17.7.1985 to which there was a

categorical denial in the reply filed by the landlord. That apart the

question of limitation to be counted from the termination of the tenancy

was never raised as a tribable issue in the application for leave to defend

and naturally no answer could have been given by the landlord on this

point. The landlord cannot now be taken by surprise; as noted supra, it

is only from the averments made in the application for leave to defend

that triable issues emanate; this objection urged does not emanate from

the pleadings in the leave to defend. This objection is accordingly

rejected. No triable issue has arisen on this court.

8. Last submission of the petitioner in his application for leave to

defend is to the effect that the landlord has two other vacant shops

which are lying locked for a long period of time which can be used by

him; as such it cannot be said that he has no other alternate

accommodation. Corresponding para of the reply has been perused. It

is contended that these shops are in highly dilapidated condition and

require or huge amount of money for repairs and the petitioners are

very poor persons and would not be able to afford this repair; petitioner

no.2 is a girl aged 23 years and is not doing any work; petitioner no.1 is

doing work of embroidery and earning only Rs.2000/- per month and

has to bear the expenses of entire house hold. It is reiterated that the

aforenoted disputed premises which are with the tenant are thus urgently

required by the petitioners for their residential purpose as also for the

job work of the petitioner no.1 who is doing work of embroidery from

the only room in their occupation where they are living and petitioner

No.1 is also carrying out his embroidery work. There is no rebuttal to

this submission. No triable issue has arisen on this court either.

9. 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 or in a

mechanical manner.

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

as follows:

"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."

No such issue has arisen. The landlord has been able to establish

that he requires the dispute premises for the needs of both the petitioners

i.e. petitioner no.1 and petitioner no.2; accommodation presently

available with them is only one room without any kitchen or bathroom;

the tenant is in occupation of one room, toilet and a bathroom on the

ground floor. Bonafide need of the landlord is established.

12. In this background eviction petition having been decreed and

leave to defend having been dismissed suffers from no infirmity.

Petition is without any merit. Dismissed.

INDERMEET KAUR, J MARCH 16, 2012 nandan