Smt. Parmeshwari Devi (Now ... vs Shri Dalbir Singh (Now Deceased) ...
2012 Latest Caselaw 6740 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                         R.C.REV. 238/2012

                                         Date of Decision: 26.11.2012

SMT. PARMESHWARI DEVI (NOW DECEASED) THROUGH
LRs                              ...... Petitioner

                          Through:    Mr. Mayank Wadhwa,
                                      Advocate.

                                Versus

SHRI DALBIR SINGH (NOW DECEASED) THROUGH LRs
                                    ..... Respondent

                          Through:    Mr. R.P.Pandey, Advocate.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This revision petition under Section 25-B(8) of the Delhi Rent Control Act (for short the 'Act') impugns the order dated 24.12.2011 of the learned Addl. Rent Controller (North), Tis Hazari Courts, Delhi, whereby the leave to defend application filed by the petitioners in the eviction petition filed against them by the respondents, was dismissed, and eviction order was passed by the Addl. Rent Controller.

2. Before proceeding to see the merit in the petition, it may be noted that earlier on 28.5.2012, the learned counsel Sh. J.C.Mahindro

appeared for the petitioners and addressed the arguments before my predecessor, and on instructions from the petitioners, did not press the petition on merits, and sought time to vacate the suit premises. Limited to that point, notice was issued to the respondents. Thereafter, the petitioners changed their counsel, who stated that petitioners never instructed Mr. Mahindroo, Advocate, as noted above. He insisted for disposal of the petition on merits. Mr. Mahindroo, Advocate appeared on 17.10.2012 and confirmed that the matter was heard at length on merits and since the court was not inclined to pass a favourable order, and was to dismiss the petition, he, on instructions from the petitioners, did not press the petition on merits and sought time for vacation of the suit premises. In view of this, it does not lie in the mouth of the petitioners to resile from their previous instructions. In any case, in all fairness, I have heard learned counsel for the petitioners at length on merits.

3. The predecessor of the petitioners namely Ram Dass was a tenant of Sh. Dalbir Singh, in the suit premises situated on the ground floor of property No. 3480, Shri Ram Building, Nikalsan Road, Mori Gate, Delhi; After his death, his wife Parmeshwari Devi started residing therein along with her sons i.e. the petitioners and their family. She died during the pendency of the petition and the petitioners were brought on record in her place.

4. The eviction petition was filed by Dalbir Singh on the ground of bona fide requirement of the suit premises for himself and his other family members dependent upon him. He died during the pendency of the petition and the present respondents, who are his wife and son were substituted in his place.

5. The leave to defend application was filed by the petitioners, which came to be dismissed by the ARC vide the impugned order, which is under challenge in the instant petition.

6. The learned counsel for the petitioners has assailed the impugned order stating that the ARC has erred in ignoring the various pleas which were taken by the petitioners and which raised triable issues. He submitted that the respondents are in possession of sufficient accommodation in the suit premises on the first, second and third floor and they also have other alternative residential accommodation at Sant Nagar in the area of village Burari. It is submitted that at the time of filing of leave to defend application, the petitioners were not aware of the particulars of the property owned by the respondents at Sant Nagar, but now, they have come to know that the respondents have a property measuring 138 square yards in Kaushik Enclave of village Burari. It was also submitted that after the death of Ram Dass, predecessor of the petitioners, the tenancy of the suit premises was splitted into three in the names of three petitioners

and the petitioners became independent tenants in their respective portions.

7. Before adverting to the submissions made by the learned senior counsel for the petitioners as also the counsel for the respondents, I may reiterate that the power of this Court under Section 25-B (8) of the Act are not as wide as those of Appellate Court, and in case it is found that the impugned order is according to law and does not suffer from any jurisdictional error, this Court must refrain from interfering with the same. The power under this provision is limited and supervisory in nature. Only when it is evident that the Rent Controller has committed grave illegality or came to a conclusion which was not possible, based on the material produced, should this Court interfere in the order passed by the Rent Controller.

8. The law governing leave to defend application in the petition of eviction, on the ground of bona fide, requirement is well settled. At this stage, what is to be seen is as to whether the petitioners have raised substantial triable issues, which would disentitle the respondent/landlord to obtain an eviction order. If that is so, the tenants cannot be deprived to prove the submissions and thrown out of the suit premises at the threshold. However, it is also settled that if there is no triable issue raised by the tenants/petitioners, the landlord would be entitled to seek their eviction forthwith without undergoing the trial. Being conscious of the limited power of this court in revision and the principles governing leave to defend application, I have

examined the impugned order in the backdrop of the submissions of the learned counsel for the petitioners.

9. The plea that after the death of the father of the petitioners, the tenancy of the suit premises was splitted into three and each petitioner became tenant in their respective portions, is entirely untenable. There is neither anything on record to substantiate this plea, nor there is any logic in such a submission. It is not that on the death of the tenant, his LRs, if they are in possession of different portions of the tenanted premises, would become independent tenants of the respective portions. The learned ARC has rightly rejected this contention holding that the tenancy continued to be one even after the death of the predecessor of the petitioners.

10. The next plea that the respondents are in possession of the sufficient accommodation comprising of nine rooms on the first, second and third floor of the suit premises, has also been adequately dealt with by the learned ARC. The site plan that was filed by the respondents was not controverted by the petitioners and they (petitioners) have not filed their own site plan. It was rightly observed by the ARC that in the absence of any site plan filed by the petitioners, the site plan filed by the respondents is deemed to be correct. The plea that the respondents are in possession of nine rooms on the first, second and third floor of the premises is nothing, but a vague and bald plea and was rightly rejected by the ARC. So much so, even the size

of the rooms alleged in the possession of the respondents in the suit premises, was not given by the petitioners.

11. The respondents stated to be in possession of two regular rooms, one covered verandah, one kitchen, bathroom, latrine and one store/godown. It was the case of the respondents/landlords that the respondent Dalbir (since deceased) was a paralytic patient and was unable to climb the stairs, and so required the suit premises situated on the ground floor, for his residence. It was also their case that his wife, who is aged about 87 years was also an ailing person and was unable to climb the stairs and needed the ground floor for her residence. It is undisputed that despite that Dalbir has died during the pendency of the petition, his wife along with her son Vimal Singh and his family continues to reside in the upper portions of the suit premises. The family of Vimal Singh comprised of his wife and three daughters & one son, all of whom are school going.

12. The contention of the petitioners that after the death of Dalbir Singh (the original landlord), the right to seek eviction on the ground of bond fide requirement extinguishes, is untenable. It is not that the bona fide requirement as set up was that of the deceased Dalbir Singh alone, but as noted above, it was also for his ailing wife, who is at the advanced stage of her life. In the case of Seshambal (dead) Through LRs Vs. M/s Chelur Corporation, Chelur Building & Ors. AIR 2010 SC 1521, the Supreme Court discussed various decisions rendered by it

involving similar controversies as to the impact of subsequent development of death of the landlord on the eviction order passed against the tenants. The Supreme Court reiterated its decisions in the case of Shantilal Thakordas Vs. Chimanlal Maganlal Telwala, AIR 1976 SC 2358 that the law permitted the eviction of the tenant for requirement of the landlord for residence for himself and members of his family, and that such a requirement was both of the landlord and the members of his family, so that on the death of landlord, the right may still survive to the family members of the deceased. The Supreme Court, however, noted that this was not the situation in the case of Seshambal (supra). It was so because, the requirement pleaded in the eviction petition by the original petitioners was their personal requirement and not the requirements of the members of their family, whether dependent or otherwise. Rather, the Apex Court ruled to the extent that indeed if the deceased/landlords had any dependent member of the family, even in the absence of pleading, it could be assumed that the requirement pleaded extended also to the dependent member of their family.

13. Thus, it could not be said that with the death of landlord Dalbir Singh, the requirement of the tenanted premises got extinguished. It is common knowledge that an old and ailing person is generally more comfortable to live on the ground floor and it would be certainly inconvenient for her (respondent/landlady) to climb the stairs, and it would be unreasonable to compel such an old and ailing person to

climb stairs for facilitating the ease of the petitioners/tenants on the ground floor. There cannot be any reason to discard the plea of such an old landlady that she cannot live comfortably on the first and the upper floors and would like to live on the ground floor. This need of the respondents cannot be said to be fanciful and whimsical. Further, the need of such a person should be viewed from the practical point of view and should not be confined to the accommodation available. Viewing from any angle, the present accommodation with the respondents where she is accommodating with her son and his family, cannot be said to be reasonably suitable for their requirements. In the totality of all these circumstances, the requirement of the respondent landlady to live on the ground floor is found to be bona fide.

14. With regard to the plea that the respondents have acquired property at Kaushik Enclave, Burari, this is of no relevance, inasmuch as this was a plot and not a built up property. In any case, this property was situated in a remote colony of a village and could not be said to be reasonably suitable as compared to the accommodation that is available with the respondents in the hub of the city, where they have been living for a long period. The petitioners cannot compel the respondents to accommodate in the suit premises or to shift to the village area for their own comforts.

15. In view of my above discussion, I do not see any infirmity or illegality in the impugned order. The petition has no merit and is hereby dismissed.

M.L. MEHTA, J.

NOVEMBER 26, 2012 akb